Beijing Law Review, 2011, 2, 33-54
doi:10.4236/blr.2011.22005 Published Online June 2011 (
Copyright © 2011 SciRes. BLR
Deadly Inertia: A History of Constitutional
Challenges to Canada’s Criminal Code Sections on
John Lowman
School of Criminology, Simon Fraser University, University Drive, Burnaby, Canada.
Received June 10th, 2010; revised February 18th, 2011; accepted March 24th, 2011.
This paper examines rhetoric surrounding prostitution law reform in Canada from 1970 to the present. During the
1950s and 1960s, there was very little media or political attention paid to prostitution. It was not until the mid 1970s
that perceived problems with prostitution law began to surface, driven by concerns that the criminal code statute pro-
hibiting street prostitution was not enforceable. In 1983 the Liberal government appointed the Special Committee on
Pornography and Prostitution to consider options for law and policy reform. However, the Conservative government
that received the report in 1985 rejected the sweeping law changes the Special Committee recommended, opting instead
to rewrite the street prostitution offence. Since then the murder of somewhere between 200 and 300 street prostitutes
has prompted renewed calls for law reform. The debate on law reform culminated in 2006 with a parliamentary review
that saw all four federal political parties agreeing that Canadas prostitution laws are unacceptable,” but unable to
agree about how to chang e them. The majority report held that co nsenting adult prostitution sh ould be legal, while the
minority report held that it should be prohibited. In 2007 the Standing Committee on the Status of Women recom-
mended that Canada adopt the Nordic model of demand-side prohibition. As the deadlock continues, women in the
street sex trade continue to be murdered. Faced with this deadly inertia, two groups of sex workers have challenged
several Criminal Code sections relating to prostitution, arguing that they violate several of their Constitutional rights,
including their right to life, liberty and security of the person”. The pap er concludes with an update on th e progress of
the Charter challenges now before the courts.
Keywords: Prostitution Law Reform, Canada
1. Introduction
The legal status of prostitution1 varies internationally
more than almost any other kind of human activity. At
one end of the spectrum are countries like the Nether-
lands and New Zealand where prostitution is formally
lawful, including the operation of brothels and other
sex-service businesses. In the center are countries like
Canada and England, where the acts of buying and sell-
ing sex are legal, but brothels, procuring and living on
the avails of prostitution of another person are prohibited.
At the other end of the spectrum are South Africa and the
United States, where selling and buying sexual services
are criminally prohibited2. In 1999 Sweden was the first
of country to adopt the radical feminist3 or “Nordic4
version of prohibition, which involves criminalizing sex
buying and third-party facilitation of prostitution. In this
legal regime the sale of sex continues to be lawful on the
grounds that because prostitutes are victims of male ex-
ploitation and violence against women they should not be
punished. From this perspective, prostitution is violence
against women.
2One exception in the US is the State of Nevada, which allows sex busi-
nesses to operate in eleven out of 17 rural counties.
3It is open to debate whether the demand-side prohibition advocated by
self-identified radical feminists like Ekberg [1], one of the main archi-
tects of current Swedish prostitution law, is an essential feature of radi-
cal feminism in general, or the position of a constituency within radical
4Norway and Iceland followed suit in 2009.
1As the subject of this paper is prostitution law, I use the term “prostitu-
tion” and “prostitute” to distinguish exchange of physical sexual ser-
vices for reward from other kinds of sex work and sex worker.
Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
As Canada considers its options for prostitution law
reform, many of the arguments favouring prohibition
have been put on trial as a result of a series of challenges
to the constitutional validity of its prostitution laws. In
the wake of more than 200 known murders or man-
slaughters of sex workers over the past twenty-five years
with many more street-connected women reported miss-
ing, two groups of current and former prostitutes are
seeking declaratory relief in relation to various prostitu-
tion laws which, they allege, violate their constitutional
rights, including their right to life, liberty and security of
the person (Downtown Eastside Sex Workers United
Against Violence Society and Sheryl Kiselbach v. Can-
ada, 20085; Bedford v. Canada, 20106). If they are suc-
cessful and the laws are struck down—a process th at will
take several years as the cases head towards the Supreme
Court of Canada—it is likely that the Canadian federal
government will be forced to either criminalize prostitu-
tion, or alter the criminal law to allow regulation at the
provincial and municipal level, as mere tinkering with
the wording of the impugned provisions would not ap-
pear to be capable of solving the constitutional objec-
This article describes the debate over prostitution law
reform that culminated in 2006 with a parliamentary re-
view that saw all four federal political parties agreeing
that Canada’s prostitution laws are “unacceptable”, but
unable to agree about how to change them [2]. The fun-
damental controversy over prostitution law reform that
has led to this deadly inertia exemplifies the clash be-
tween “radical” and “liberal” feminists7 that has been
replayed around the world in numerous settings over the
past twenty-five years, except that in this instance Cana-
dian courts are evaluating the evidence presented for and
against prohibition. The essay concludes with an update
on the progress of the two main Charter challenges cur-
rently before the courts.
2. The Development of Canadian
Prostitution Law
Canada’s first prostitution laws were imported with Brit-
ish common law. They dealt with the nuisances attributed
to bawdy houses and street walking, which they treated
as forms of vagrancy and immoral [4,5]. At the time of
Confederation, because law treated women and children
as the property of men it offered them little protection
from men. In the latter part of the nineteenth century at-
titudes on both sides of the Atlantic began to change
during a period when women came to be seen as moral
guardians of the family deserving protection from licen-
tious men. The unfolding “social purity” crusade por-
trayed prostitution as a “social evil” involving a “white
slave trade”.
As the social purity movement gathered momentum it
achieved alcohol prohibition in some Canadian jurisdic-
tions and, in the name of preventing exploitation of
women and children, successfully lobbied for a series of
criminal laws prohibiting procuring, living on the avails
of prostitution of another person, and expansion of the
bawdy house laws.
With the exception of the vagrancy statute (described
below) that, up until 1972, was used to control street
prostitution, the laws in place by 1915 remain in effect
Procuring a person to have illicit sexual intercourse;
aiding, abetting or con trolling for gain the prostitutio n
of another person; enticing a person who is not a
prostitute to a common bawdy house or concealing a
person in a common bawdy house (s.212.(1)). These
are indictable offences subject to sentences of up to
ten years imprisonment.
Living in whole or in part on the avails of the prosti-
tution of another person (s.212.(1)(j)), an indictable
offence subject to a sentence of up to ten years in
Owning, keeping, frequenting, being a landlord of, or
being found in a “common bawdy house,” i.e. any
“place” that is used on a regular basis to conduct
commercial sexual transactions (s.210). “Keeping” is
an indictable offence carrying up to two years im-
prisonment, the others are summary offences, and
thus subject to the maximum penalty for any sum-
mary offence, i.e. not more than two thousand dollars
7The radical feminist—or what Jolin [3] calls the “sexual equality first”
erspective—on prostitution holds that, because male power is inextri-
cably linked to female subjugation, equality for women depends di-
rectly on the elimination of male sexual oppression. Advocates of this
osition argue that, because prostitution is predicated on sexual subor-
dination of women, abolition of prostitution is a prerequisite to securing
women’s rights. Against this view, liberal feminists and other advo-
cates of what Jolin [3] calls the “free choice first” perspective argue
that freedom to choose is a prerequisite of women’s equality. “For
feminists of this persuasion, the fight for women’s equality depends on
the rejection of all attempts by men or women to forcibly impose their
will on women… if freely chosen, prostitution is an expression o
women’s equal status, not a symptom of women’s subjugation” [3].
The two positions differ fundamentally in the way they conceptualize
“choice”. Advocates of demand-side prohibition argue that no woman
who has a free choice would choose to prostitute. Advocates of the
libertarian model argue that, because people have to make choices in
social and economic circumstances that they do not choose, social and
legal policy should be designed to maximize choice, not limit it. Prohi-
ition of the buying or selling of sexual services creates adverse effects
that disproportionately affect women who sell sex, whether it be for the
better pay it provides compared to other service industries or when no
other economic alternatives are available.
5Full case citations are listed after the references.
6In a third case, R. v. Blais (2011), a client charged with communicating
in public for the purpose of buying sex defended himself by arguing
that the “communicating law” infringes the constitutional rights o
rostitutes. The court rejected his argument.
Copyright © 2011 SciRes. BLR
Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution35
or to imprisonment for six months or both (Criminal
Code s.787.(1)).
Transporting a person to a bawdy house (s.211), a
summary offence.
As of 1985, the communicating law prohibits any
form of communication in a public place or place
open to public view for the purpose of buying or sell-
ing sexual services (s.213), a summary offence.
In 1988 in response to recommendations of the Com-
mittee on Sexual Offences Against Children and Youth
[6] and the Special Co mmittee on Po rnograph y and Pros-
titution [7], two new statutes relating to youth involve-
ment in prostitution were enacted: 1) a separate offence
with a fourteen year maximum prison senten ce for living
on the avails of a person under eighteen years of age
(s.212.(2)); and 2) prohibition of buying or offering to
buy sexual services from a person under eighteen with a
prison sentence of no more than five years (s.212.(4)).
In 1997 following recommendations of the Federal-
Provincial-Territorial Working Gro up on Pro stitution [8],
the legislature amended the Criminal Code by adding
s.212.(2.1), which created a five year minimum prison
term for “aggravated” living on the avails of a person
under eighteen, and s. 7(4.1) which allows prosecution of
citizens and permanent residents of Canada for commit-
ting sexual offences against children outside of Canada,
including sexual interference, sexual exploitation, mak-
ing, distributing or selling child pornography, and at-
tempting to obtain or obtaining for consideration a sexual
service from a person under eighteen years of age. At
least thirty other countries have similar “sex tourism”
In August 2010 using the powers bestowed by Code s.
467.11(4), which authorizes the government to respond
to organized crime via an Order-in-Council rather than a
legislative change, the minority Conservative govern-
ment expanded the definition of “serious crime” to in-
clude ten gambling and drug offences, and the offence of
keeping a common bawdy house. This change of regula-
tions had the effect of expanding the maximum prison
sentence for keeping a common bawdy-house from two
to five years.
New legislation prohibiting “trafficking in persons”
also applies to various prostitution-related activities; in-
deed because some commentators, such as the Standing
Committee on the Status of Women [9], define all forms
of prostitution as “exploitation”, they regard all prosti-
tutes as victims of “trafficking”.
In 2002 Section 118 w as added to the Immigration and
Refugee Protection Act to prohibit human trafficking into
Canada, with a maximum penalty of life imprisonment
and/or a fine of up to one million dollars8. In 2005 four
sections were added to the Criminal Code to prohibit
domestic human trafficking9.
The rationale for changes to street prostitution laws—
first in 1972 and again in 1985—is described below
along with the events that precipitated Canada’s “street
prostitution problem” in the late 1970s and early 1980s.
A short description of prostitution law enforcement and
styles of prostitution through the Twentieth Century sets
the stage for this account.
3. The Role of Law Enforcement in Shaping
the Practice of Prostitution
Across North America in the latter part of the nineteenth
century, enforcement of prostitution laws has been de-
scribed as “sporadic and capricious” [5]. Many cities
contained a “segregated” or “restricted” district where
prostitution was tolerated (see e.g. [10,11]), often be-
cause police took bribes to ignore it.
At the turn of the century, social purity reformers
pressed police to abandon the prevailing regime of tol-
eration in favour of vigorous law enforcement against
procurers and persons liv ing on the avails of prostitution.
However, efforts to suppress prostitution usually only
displaced it [11], and law enforcement continued to be
erratic. Police sometimes targeted prostitutes rather than
“exploiters” to boost the number of charges to make it
look like they were serious about fighting the “social
evil” [5]. Brothel prostitution appears to have survived
the vice crusades of the first twenty years of the twenti-
eth century, and flourished up to the Second World War.
After 1920 the social purity discourse waned, only to be
replaced by concerns about “social hygiene” and eugen-
ics [12].
After World War II the 1900-1940 style of brothel
prostitution that Gray [10], Nilsen [11] and Rotenberg
9Section 279.01(1) prohibits recruiting, transporting, transferring, re-
ceiving, holding, concealing or harbouring a person, or exercising con-
trol or influence over the movements of a person, for the purposes o
exploiting them or facilitating their exploitation. The maximum penalty
is life in prison where the offence involves the kidnapping, aggravated
assault or aggravated sexual assault or death of the victim and 14 years
in any other case. Section 279.02 prohibits the receipt of a financial or
other material benefit for doing any of the aforementioned acts. The
maximum penalty is ten years. Section 279.03 prohibits withholding o
destroying travel or identity documents in order to facilitate any of the
aforementioned acts. The maximum penalty is five years. Section
279.04 (a) defines exploitation, for the purpose of the trafficking in
ersons offences, as causing a person “to provide, or offer to provide,
labour or a service by engaging in conduct that, in all the circumstances
could reasonably be expected to cause the other person to believe that
their safety or the safety of a person known to them would be threat-
ened if they failed to provide, or offer to provide, the labour or service.”
These are indic
able offences.
8The IRPA defines trafficking in persons as “knowingly organiz[ing]
the coming into Canada of one or more persons by means of abduction,
fraud, deception or use or threat of force or coercion.” No convictions
have ever been recorded under this provision (International Centre for
Criminal Law Reform and Criminal Justice, 2010, p.4).
Copyright © 2011 SciRes. BLR
Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
[13] describe apparently disappeared from some Cana-
dian cities. Certainly the number of bawdyhouse charges
dropped dramatically in the 1950s and 1960s across
Canada, although this may reflect a change in enforce-
ment priorities rather than prostitution styles. Vancouver
newspaper articles from this period indicate that many
female sex workers met their clients in hotels and night-
clubs [14], a view that Layton’s [15] study of prostitution
in Vancouver substantiates. Her study also suggests that
street prostitution was restricted to commercial streets in
the more salubrious areas of the Downtown core and
Downtown Eastside. Prus and Irini’s [16] study of pros-
titution in Toronto describes a hotel trade facilitated by
bell hops, desk clerks and taxi drivers, while Brock [17]
describes extensive prostitution in body rubs and mas-
sage parlours on Yonge Street up to 1977 when they
were closed (see footnote 13). Until the late 1970s the
street trade in both Vancouver and Toronto appears to
have been relatively limited and contained, and rarely
made newspaper headlines.
While it is difficult to ascertain how extensive the
prostitution trade was in the 25 years immediately after
World War II, it was rarely a matter of concern in news-
papers. In contrast to the period of the social purity
movement from 1903 to 1917, when newspapers fre-
quently discussed prostitution, in the 1950s and 1960s
they rarely mentioned it10. In Vancouver—the city where
dozens of street prostitutes have been murdered over the
past two decades—street prostitution up to 1970 was
restricted to a few blocks on the Downtown Eastside.
Newspaper reports suggest that a prostitution stroll had
developed in Vancouver’s West End by 1972, but it was
the 1975 police action against two cabaret clubs where
prostitutes met their customers that played the biggest
part in expanding the street trade in Vancouver [18].
4. Canada’s “Street Prostitution Problem”
Up to July 1972 street prostitution was defined as va-
grancy, a summary offence. Criminal Code s.175.(1)(c)
read: “Every one commits a vagrancy who… being a
common prostitute or nightwalker is found in a public
place and does not, when required, give a good account
of herself.”
Vagrancy C was repealed because it applied only to
women, and thus contravened the 1960 Canadian Bill of
Rights, and criminalized a woman’s status as a “common
prostitute” rather than her behaviour. It was replaced by
the “soliciting law”, which read: “Every person who so-
licits a person in a public place for the purpose of prosti-
tution is guilty of an offence punishable on summary
conviction” (Criminal Code s.195.1).
Soon after police began to enforce the new law, courts
were asked to determine the exact meaning of the term
“solicit”. Did the mere offer of a sexual service and a
price constitute “soliciting”, or did it entail something
In 1978 the Supreme Cour t of Canada ruled that solic-
iting entailed “pressing and persistent” or “importuning”
conduct (R. v. Hutt, 1978), which meant that merely of-
fering a sexual service for a price was not sufficient to
constitute an offence. This interpretation meant that the
usual enforcement tactic involving an undercover officer
approaching a street prostitute and arresting her once she
agreed to perform a sexual service for a price no longer
constituted sufficient evidence for a conviction, at which
point Vancouver police sto pped enfor cing the law. Police
in Toronto continued to obtain convictions by arguing
that a sex worker approaching a series of customers in
different encounters con stituted “pressing and persistent”
conduct, but when citizen’s groups pressured Vancouver
police to use the same tactic, one of the first cases to go
to court was dismissed on the grounds that the serial ap-
proaches to different clients were just that: different in-
cidents. When the Supreme Court of Canada subse-
quently upheld this decision (R. v. Whitter, 1981) To-
ronto police also stopped enforcing the soliciting law.
Many commentators—including the Canadian Associa-
tion of Chiefs of Police chaired by Vancouver Police
Chief Don Winterton [19] and a Macleans11 editorial
[20]—blamed jurisprudence for turning Canadian streets
into “sexual supermarkets”.
5. The Standing Committee on Justice and
Legal Affairs12 [21]
The first government initiative to address the expansion
of street prostitution in cities like Vancouver [18] and
Toronto [17] was an instruction to the House of Com-
mons Standing Committee on Justice and Legal Affairs
to review legal methods for dealing with street prostitu-
tion, including the Criminal Code and various provincial
and municipal laws in force at this time, and cons ider the
views of interested persons and organizations.
After hearing the views of federal and municipal gov-
ernment officials, police officers and different activist
groups representing women and communities, the Stan-
ding Committee produced a short report (1983) dealing
solely with street prostitution that made five recommen-
11Canada’s most widely circulated national news periodical.
12A standing committee comprises representatives of each political
arty in
he federal government roughly in proportion to the number o
seats they hold.
10The evidence for this observation comes from an on-going study o
twentieth century newspaper reports about prostitution from two news-
apers: the Globe and Mail, Canada’s longest-operating national
newspaper, and the Vancouver Sun.
Copyright © 2011 SciRes. BLR
Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution37
1) That, whatever changes are made to s.195.1 of the
Criminal Code, it should be amended to remove the un-
certainty as to whether clients are liable to prosecution;
2) That a new offence be added consisting of the of-
fering or the acceptance of an offer to engage in prosti-
tution in a public place, punishable on summary convic-
tion by a fine of up to $500, or 15 daysimprisonment in
default of payment;
3) That the definition of public place be amended to
include vehicles in public places, and private places open
to public view;
4) That a new offence of offering or accepting an offer
to engage in prostitution with a person under 18 be en-
acted, punishable either on summary conviction or by
way of indictme nt ;
5) That the operation of the proposed amendments be
reviewed by a committee of the House of Commons
within three years of their coming into force (cited in [7,
pp. 467-469]).
Faced with growing pressure from municipal and pro-
vincial governments for revisions to the Criminal Code,
instead of acting on any of the Standing Committee’s
recommendations, the 1983 Liberal government appoin-
ted the Special Committee on Pornography and Prostitu-
tion (the Fraser Committee [7]) to study the sex trade in
Canada and recommend law and policy reforms across
the board.
6. The Special Committee on Pornography
and Prostitution [7]
Charged with the task of ascertaining what had gone
wrong with prostitution law, the Fraser Committee dem-
onstrated that street prostitution had spread prior to the
1978 Supreme Court of Canada ruling that defined “so-
liciting” as pressing and persistent or importuning con-
duct (R v. Hutt, 1978). Neither the Macleans editorial
nor Police Chief Winterton when he wrote about the “di-
lemma of our prostitution laws” [19] mentioned that it
was the Vancouver Police who had contributed to the
expansion of street prostitution by closing off-street
prostitution lo cations.
In 1975 Vancouver police turned their attention from
street prostitution to the indoor trade. While the reasons
for this change of emphasis are not clear—it does not
appear to have been driven by public complaints or lobby
group pressure—we do know that the VPD vice unit
conducted lengthy u ndercover investigation s into the two
cabaret clubs that provided an off-street mechanism for
sex workers and clients to meet [15,18]. When the own-
ers and several employees of one of the clubs were
charged with living on the avails, the club closed. After
the other club mysteriously burned to the ground, the
owner was charged with arson, but never convicted. No
longer able to meet clients indoors, the women turned to
the streets [18]. In Toronto in 1977 a similar displace-
ment occurred when police closed the body rub parlours
on the Yonge Street strip13 [17]. Rather than soliciting
law jurisprudence being the decisive factor leading to the
expansion of street prostitution, it was the interplay of a
set of contradictory and self-defeating prostitution laws
that played the central role—altho ugh it was obvious too
that the soliciting law had failed to contain prostitution
once it was displaced onto the street.
In making recommendations for law reform, the Fraser
Committee urged the legislature to clarify the legal status
of prostitution: if it is to continue to be lawful, where
should it be located? The Fraser Committee advised
against piecemeal law reform, saying that the entire set
of prostitution laws needed to be rethought. The most
effective way to prevent public nuisance and recognize
the rights of prostitutes would be for the legislature to
decide where and under what circumstances prostitution
can occur.
Arguing that consenting adult sexual activity should
not be subject to criminal penalty, the Committee rec-
ommended law reforms that would allow two prostitutes
to work from a residence14, would permit the provinces
to license small scale brothels, and would prohibit pro-
curing and living on the avails only when threats or vio-
lence were brought to bear. Its recommended street pros-
titution offence would criminalize sex workers and cli-
ents only if they created specified nuisances, such as
blocking doorways or stopping pedestrian or vehicular
The Committee recognized that law reform by itself
could do little to address many of the problems associ-
ated with prostitution. It called for all levels of govern-
ment to work tog ether to r emo ve the economic an d social
inequalities between men and women that lead to prosti-
tution, ensure that there are adequate social programs for
marginalized women and youth, and develop programs
for people who want to exit prostitution.
7. The Legislative Response
Before the Fraser Committee released its report in April
1985 the Liberal Party that had created it lost a general
election to the Progressive Conservatives. The new Con-
servative government ignored the Fraser Committee’s
13Brock describes the way that Toronto police and local authorities used
the murder of a 14 year-old shoe shine boy, whose body was found on
the roof of a body rub parlour, to justify closing Yonge Street’s par-
14The Committee suggested two persons to enhance their safety, but
limited the number to prevent the potential nuisance that could be cre-
ated by what are now referred to as “micro-
rothels” in residential
Copyright © 2011 SciRes. BLR
Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
proposal for sweeping law reform, opting instead to re-
strict its attention to the street prostitution law. By taking
this approach it implicitly accepted the argument that
jurisprudence really was the problem that led to expan-
sion of street prostitution in the mid-1970s; if the word-
ing of the law was the problem, then making the law
easier to enforce would turn the clock back to the days
when the vagrancy law supposedly15 held the street trade
in check.
On December 20th 1985 the “soliciting law” was re-
pealed and the “communicating law” (Criminal Code
s.195.1, renumbered as s.213 in 1989) enacted. For the
first time, the prostitute’s client was explicitly made a
party to the street prostitution offence, which prohibited
any manner of communication in public for the purpose
of engaging in prostitution or of obtaining the sexual
services of a prostitute. Like the soliciting law before it,
the communicating law is a summary offence16, and thus
subject to a fine of no more than two thousand dollar s, up
to six months in prison, or both.
Police across Canada were quick to take up enforce-
ment of the communicating law. From 1982 to the end of
1985 under the soliciting law, police across Canada laid
less than an average of 100 charges each year. In contrast,
during the first eight years of communicating law en-
forcement (1986-1993) from eight to ten thousand
charges were laid each year nationwide. From 1997 to
2005 the figure dropped to between three and six thou-
sand charges annually.
8. Justice Canada Evaluates the
Communicating Law (1989)
The legislation introducing the communicating law re-
quired that an evaluation be conducted within four years
of its enactment. To this end the Department of Justice
Canada commissioned five regional studies of its impact
[22-26], which are summarized in its Synthesis Report
While the communicating law clarified the govern-
ment’s intention to use criminal sanctions to suppress
street prostitution, it did nothing to clarify where the leg -
islature would have the still-legal act of prostitution take
place. It was still unclear whether Canadian prostitution
law as a whole is designed to eradicate or regulate the
sex trade. Justice Canada commented on the problem this
created for the evaluation:
It is difficult to know whether the legislators hoped
that the [communi catin g law] would reduce the incidence
of prostitution by:
a) Convincing prostitutes and customers to give up the
practice entirely;
b) By encouraging them to work in less offensive mod-
es, such as escort services or bars, or in areas where
their activity woul d annoy no one [27, p p. 7- 8] .
Regardless of which of these outcomes was intended,
Justice Canada’s evaluation was unequivocal in its con-
clusion that:
In the two Canadian cities in which street prostitution
presented the greatest problem, Vancouver and Toronto,
the legislation has had virtually no success in moving
prostitutes off the street. Both street counts and inter-
views with key respondents in these cities suggest that, at
best, prostitutes ha ve simply been d isplaced to n ew areas .
Street prostitutes in both cities stated that the law was
not a deter rent [27, p. 74].
Similarly, the law did not reduce street prostitution in
Winnipeg, Regina and Calgary.
In Montreal, Quebec City, Niagara Falls, Ottawa and
Halifax numbers appeared to diminish, but according to
the Synthesis Report these all were cities where street
prostitution was much less of a problem to begin with.
9. A Two-Tier System of Prostitution Law
In contrast to the thousands of charges for communicat-
ing since 1986, there were only a few hundred charges
each year for bawdy-house, living on the avails and pro-
curing violations even though the majority of these are
indictable offences. Since 1986, street prostitution—
which is estimated to comprise between 5% and 20% of
the commercial sex trade in Canada [2, p. 6]—has ac-
counted for 93% of all prostitution law offen ces. To keep
prostitution out of mind and sight a two-tier system of
prostitution has emerged in which street prostitution is
criminalized while indoo r prostitution is regulated [28].
Police explain this discrimination as emanating from
the complaint driven nature of prostitution law enforce-
ment; they concentr ate on the street trade because it gen-
erates the vast majority of complaints. This implies that
the much bigger off-street sex trade flourishes in our
midst without creating a nuisance, and police and prose-
cutors in cities like Vancouver are only too well aware of
the problems they can create when they close down the
off-street trade, as they did in the mid-1970s17.
While this law enforcement double standard repr esents
a pragmatic resolution to the self-defeating and contra-
dictory nature of Canadian prostitution law, it also high-
lights its hypocrisy. We thus now find ourselves in a sit-
uation where there are a dozen or so “john schools18
17In 1987 a Vancouver regional Crown counsel confirmed that one o
the reasons that his office was reluctant to lay charges against escort
services was because of a concern that such an action would displace
the escort trade onto the street.
18“John school” is the colloquial term given to diversion programs for
men charged under the communicating law.
15I say “supposedly” because there are reasons to doubt whether Vag. C
kept levels of street prostitution in check from 1945 to the mid 1970s—
see [22].
16A summary offence is roughly the equivalent of a misdemeanour in
the US, and an indictable offence the equivalent of a felony.
Copyright © 2011 SciRes. BLR
Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution39
across Canada morally denouncing prostitution even
though purchasing sex is not a criminal offence. At the
same time many of the municipalities that sponsor john
schools also license escort services and body rub parlour
prostitution using licensing language which makes it
clear that they are knowingly regulating prostitution [28,
pp. 11-14]. Needless to say, the speakers at john school
do not inform their conscript clientele that if the men had
patronized a municipally licensed prostitution business
such as an escort service they could have purchased sex
with impunity19.
10. Prohibition or Regulation? Dissensus on
the Supreme Court (1990)
While jurisprudence has clarified the inten tion and scope
of each prostitution statute, not even the justices on the
Supreme Court of Canada can agree what the legislation
as a whole is trying to achieve. In 1990 after a series of
conflicting decisions at the provincial court level, the
Province of Manitoba petitioned the Supreme Court of
Canada to rule on the cons titution al v alid ity of the bawdy
house and communicating laws (Reference re ss.193 and
195.1(1)(c), 1990).
In a four to three decision upholding the laws, the Su-
preme Court justices were unable to agree about the
purpose of prostitution law as a whole. Justice Lamer
was the only one of seven to argue that the legislation
aims to abolish prostitution:
[T]hese laws indicate that while on th e face of the leg-
islation the act of prostitution is not illegal, our legisla-
tors are indeed aiming at eradicating the practice. This
rather odd situation wherein almost everything related to
prostitution has been criminalized save for the act itself
gives one reason to ponder why Parliament has not taken
the logical step of criminalizing the act of pro stitution…;
[O]ne possible answer is that, as a carryover of the Vic-
torian Age, if the act itself had been made criminal, the
gentleman custom er of a prostitute wou ld have been also
guilty as a party to the offence. That situation has now
been rectified in that the [communicating law] reaches
out to the customers of prostitutes, although the act itself
is still not illegal.
Against this view, Justice Wilson (with Justice L’
Heureux-Dubé concurring) reasoned:
While… many people find the idea of exchanging sex
for money offensive and immoral… many types of con-
duct which are subject to widespread disapproval and
allegations of immorality have not been criminalized.
Indeed, one can think of a n umber of reasons why selling
sex has not been made a criminal offence… Whatever the
reasons may be, the persistent resistance to outright cri-
minalization of the act of prostitution cannot be treated
as inconsequential… We cannot treat as a crime that
which the legislature has deliberately refrained from
making a crime.
Similarly, Chief Justice Dickson (with Justice LaForest
and Justice Sopinka concurring) rejected Lamer’s view:
Like Wilson J., I would characterize the legislative
objective of [the communicating law] in the following
manner: the provision is meant to address solicitation in
public places and, to that end, seeks to eradicate the
various forms of social nuisance arising from the public
display of the sale of sex… [I]n my view, the legislation is
aimed at taking solicitation for the purposes of prostitu-
tion off the streets and out of pub lic view.
Regardless of what might have motivated Victorian
legislators, none of this judicial commentary—Justice
Lamer’s in particular—acknowledges that, when the
Fraser Committee recommended sweeping law reform in
1985, everything was up for grabs. The Conservative
government of the day could have introduced legislation
criminalizing the buying and/or selling of sexual ser-
vices—options the Special Committee on Pornography
and Prostitution discussed [7, pp. 515-517, 520-521]20
but chose not to.
While I return to the substance of the Supreme Cour t’s
constitutional arguments later in the paper, it is sufficient
to note at this juncture that Canadian prostitution law is
beset with a fundamental problem: if the justices on the
Supreme Court of Canada cannot agree about the overall
purpose of prostitution law, how is the average citizen
supposed to figure it out? In this sense, Canadian prosti-
tution law as a whole is vague. If it is “impermissibly
vague”, then presumably it offends the principles of fun-
damental justice that lie at the heart of the Charter. Al-
ternatively, if the purpose of the legislation is regulation,
the question remains, where should the lawful act of
prostitution take p lace?
11. Parliament Reviews the Communicating
Law (1990)
At the same time the Supreme Court was consid ering the
constitutional status of communicating and bawdy house
statutes, the Standing Committee on Justice and the So-
20As well as criminalization of both buying and selling sexual services,
the Special Committee on Pornography and Prostitution discussedthe
demand-side model of prohibition that was adopted in Sweden some
fifteen years later—criminalizing sex buying and other kinds of “ex-
ation,” but not sex selling, which would continue to be legal—and
found it wanting because, “This approach depends on acceptance of the
thesis that prostitutes really have no desire to engage in this sort of life,
and that, even if they do, they should be protected from their own rash
choices” (p. 521).
19Although in some circumstances a client could potentially be charged
for being found in a common bawdy house, I have not found an in-
stance in Vancouver of such a charge being laid during the period I
have conducted prostitution research in that city (1977-present). There
appear to be very few, if any, such charges anywhere in Canada during
this period.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
licitor General completed its review of the communicat-
ing law (1990). After a review of the research carried out
by the Department of Justice and a series of hearings
with invited speakers, the Standing Committee [29] made
three recommendations.
1) That government departments develop start-up pro-
grams and core funding to community-based agencies
providing programs accessible and responsive to the
needs of sex workers wishing to leav e the industry;
2) That the Identification of Criminals Act be amended
to allow for the fingerprinting and photographing of
those charged under Section 213, whether as prostitutes
or as clients;
3) That Section 213 be amended to provide j udges with
the discretion, in addition to any other penalty imposed,
to prohibit persons convicted of communicating for the
purposes of prostitution in instances involving a motor
vehicle fr om driving a motor vehicle for up to 3 months.
Parliament accepted the first reco mmendation on prin-
ciple, but rejected the other two [28,31].21 The status quo
12. Justice Canada Sponsors Research on
Violence against Sex Workers (1995)
In the five years following the parliamentary review Jus-
tice Canada contracted a series of updates of its 1989
evaluation to track the impact of the communicating law.
On-going research in Vancouver through this period
produced evidence th at violence against street prostitutes
was increasing. In 1991 for the first time the Canadian
Center for Justice Statistics began publishing information
about the occupation of homicide victims. These data
revealed that in 1991 and 1992 twenty-two sex workers,
the vast majority of whom appeared to be street prosti-
tutes, were victims of homicide in the course of their
In 1993 Justice Canada sponsored a series of studies of
violence against sex workers in order to examine what
appeared to be escalating levels of violence [30-33].
Lowman and Fraser’s study [33] revealed that the num-
ber of homicides of sex workers in British Columbia ap-
peared to have accelerated after 1980. Of the fifty
sex-worker homicides they describe during the period
1964 to 1993, only seven occurred prior to 1983. But
worse was yet to come.
13. The Federal-Provincial-Territorial
Working Group on Prostitution (1998)
Absent clarification of the purpose of Criminal Code
statutes relating to prostitution and with murders of pros-
titutes, sexual exploitation of youth, and the nuisances
associated with street prostitution all making news head-
lines [34], the federal, provincial and territorial deputy
ministers responsible for justice established the Federal
Provincial Territorial Working Group (Working Group)
in 1992. The Working Group was asked to review the
adequacy of legislation at the federal and provincial lev-
els, the role of municipalities in prostitution policy, law
enforcement issues, and make yet more recommenda-
tions for law and policy reform.
Unlike the Fraser Committee, which comprised spe-
cialists from outside government, the Working Group
consisted of provincial, territorial and federal govern-
ment employees wh ose recommend ations fo r prostitution
law and policy reform had to be acceptable to the politi-
cal party that employed them, thus making independent
recommendations impossible.
In an Interim Report the Working Group [35] devel-
oped a series of preliminary recommendations, some of
which the Federal Government acted on in the form of
Bill C-27, an Act to amend the Criminal Code in relation
to child prostitution, child sex tourism, criminal harass-
ment and genital mutilation. These amendments came
into force in May 1997.
After six years of extensive nation-wide consultation
and deliberation the Working Group released its final
report in 1998 [8]. The report focused on the two issues
that had the highest public profile at the time: youth in-
volved in prostitution and the harms associated with
street prostitution, including public nuisance and vio-
lence against prostitutes.
The Working Group produced sixteen recommenda-
tions regarding youth pros titution, and twen ty concern ing
street prostitution, with a passing reference to bawdy
house laws [8. pp. 72-77]. The members had little tro uble
recommending social interventions and provision of ac-
cessible services, including substance abuse program-
ming and safe houses, but when it came to more funda-
mental questions about the legal status of prostitution,
there was no consensus. While the Working Group rec-
ommended against decriminalizing street prostitution, it
expressed concern about the way “the law is silent on
when and under what conditions prostitution is allowed
to occur” [8, p. 4], and suggested that the legislature
might consider changing bawdy house laws to allow in-
door prostitution in relative safety and help prevent nui-
sance in the process:
[I]nterested municipal and provincial governments
21The second recommendation was rejected as not striking an appropri-
ate balance between societal concerns about prostitutes and the law
enforcement objective of suppressing street prostitution. The third rec-
ommendation was rejected because it would: a) interfere with the sen-
tencing discretion left to judges; and b) there was no rational connection
etween the offence and the punishment, as street prostitution does no
require use of a motor vehicle.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution41
[should] undertake discussions with each other and with
the federal government regarding the option of giving
municipalities more regulatory authority in relation to
bawdy-houses in order to address the problems posed by
street prostitution, particularly the hazards posed to res-
idents, the involvement of youth in prostitution and the
dangers to prostitutes themselves. In particular, consid-
eration could be given to the reform of s.210 of the
Criminal Code to allow one or two prostitutes operating
out of their own residence where municipalities believed
that the hazards and dangers of street prostitution war-
ranted such measures. [8, pp. 69- 70].
The Working Group suggested that partial decrimi-
nalization of indoor prostitution could be achieved by a
law emulating s.207 of the Criminal Code, which permits
provincial governments, charitable organizations and
other parties to license and/or hold lotteries by exempting
them from the criminal prohibition of gambling set ou t in
other sections of the Code.
Again the legislature did nothing to resolve the fun-
damental issue first raised by the Fraser Committee thir-
teen years before: if prostitution is legal, where and un-
der what circumstances should it occur? It was at about
this same time that pressure from local social services
agencies, prostitute’s rights organizations and local jour-
nalists began to mount for the Vancouver Police De-
partment (VPD) to make a more concerted effort to in-
vestigate the disappearance of dozens of street-involved
women from the Downtown Eastside just a few blocks
from police headquarters.
The Downtown Eastside comprises one of the ten
poorest census tracts in Canada [36], has some of the
highest HIV and Hepatitis C infection rates in the West-
ern world,22 is the location of Canada’s first needle ex-
change program and, through a process of urban triage,
has become home to a substantial population of persons
diagnosed as mentally ill. The area contains 5000 single
room occupancy accommodation, which constitutes
about 80% of the Vancouver total, 5000 social housing
units, and 900 special needs housing beds. Of roughly
16,000 residents, 700 are homeless.
In 1991 Vancouver Police Department identified over
450 women involved in the Downtown Eastside street
prostitution trade at one time or another that year, many
of whom were aboriginal. It was this population of
women that became the primary target of serial killer
Robert Pickton.
14. Robert Pickton and Vancouver’s Missing
From 1995 through 2001, 46 women who were know n to
have worked in the Downtown Eastside prostitution stroll
were reported missing. After several years of denial by
the police and the municipal council that a serious prob-
lem existed23 a joint RCMP-VPD Missing Women Task
Force was established in 2001.
On February 5th 2002 when police exercised a search
warrant for illegal firearms at Robert Pickton’s farm they
discovered human body parts. On February 22nd Pickton
was arrested and charged with two murders. The subse-
quent twenty-month long inch-by-inch search of the farm,
which involved hand screening the topsoil of the entire
16 acre property looking for evidence, is estimated to
have cost over one hundred million dollars. The search
produced the DNA of 33 women who had been reported
missing from the Downtown Eastside between. When
Pickton initially went to trial he was charged with 26
murders. However, twenty charges were severed with the
intention of processing them at a separate second trial to
be held after the first one was concluded.
On December 9th 2007 Pickton was convicted of all six
murders. After the Supreme Court of Canada upheld
these convictions, the Crown stayed the remaining twen-
ty charges, arguing that it would be too costly to proceed
given that Pickton will never be released from prison.
15. Grandma’s House
The case of Grandmas House, a charitable society es-
tablished in 1998 by Jamie Lee Hamilton24 to help sur-
vival sex workers in the Downtown Eastside/Strathcona,
epitomizes the issues that are being raised by the consti-
tutional challenges to prostitution law currently before
the courts.
At about the same time Grandmas House opened in
1998, fear that a serial killer was preying on the area’s
sex workers was rife on the street, and the Vancouver
media were beginning to report the disappearance of
numerous street-connected women. We now know that
10 women disappeared from this area in 1997, nine in
1998, and 6 in 1999. 25 Hamilton has reported that women
would sometimes arrive at Grandmas House bloodied
and bruised after a bad date. Some of them asked Hamil-
ton if they could bring dates to Grandmas House so that
they could conduct their business safely: with other peo-
ple around, they would be able to get help if a date turned
bad. During this period Hamilton publicly criticized
Vancouver Police Department on numerous occasions
22Leidl [37] estimates the DES population’s HIV infection rate to be
about 30% and the HCV rate to be just below 70%—roughly the equiv-
alent of Botswana.
23When asked in 1999 to put up a reward for finding a missing woman,
Mayor Owen was reported as saying that the authorities were not pre-
ared to fund a “location service” for prostitutes [38].
24This account is based on my personal communications with Ms.
Hamilton, a Vancouver prostitute rights activist.
25These figures were compiled by then Detective Inspector Kim Ross-
mo of the Vancouver Police Department.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
for failing to investigate the disappearance of dozens of
women, and did not attempt to hide what was happening
at the House. It may well have been this activism that led
to VPD charging her in 2000 with keeping a common
bawdy house.26
In the ensuing trial Hamilton challenged the constitu-
tional validity of the law. The general gist of her argu-
ment was that if a bawdy house is not located in a resi-
dential area, it is unlikely to be a nuisance. Because no
profit was involved—the charge for the room was suffi-
cient only to cover costs for rent, bedding, towels, etc.—
Grandmas House did not exploit the sex worker’s la-
bour. Indeed, its purpose was to protect sex workers from
murder while avoiding the creation of a public nuisance
in the process. By criminalizing her conduct in this in-
stance, the bawdy house law was overly broad, she
claimed, an affront to the principles of fundamental jus-
tice, and thus in violation of the Charter.
In 2004 the charges against Hamilton were stayed, so
we do not know how the court would have ruled on this
argument. Grandmas House closed nonetheless after the
charges were laid, thus making it difficult to figure out
where street-based sex workers are supposed to work an d
how they can conduct their work safely, as they do not
have the resources to set up an indoor location nor the
personal characteristics required for escort service and
massage parlour work. As Currie et al’s [39] research
revealed, many of Downtown Eastside/Strathcona women
are drug and/or alcohol dependent, and are homeless or
live in rooming hous es. The message seems to b e that the
only way they can get help is if they stop the legal act of
The closure of Grandmas House forced the street-
based sex workers who used it to perform sexual activi-
ties elsewhere, the most likely place being in cars—the
very place they find themselves most vulnerable and in
the greatest danger.
16. The Subcommittee on Solicitation Laws
(2006) [2]
In February 2003 Libby Davies, the MP for Vancouver
East, which includes the Downtown Eastside, proposed
that the House of Commons appoint a special committee
to review prostitution law one more time. In light of the
charges laid against Pickton, there was broad support for
her plea. The review was referred to a subcommittee of
what was then called the Standing Committee on Ju stice,
Human Rights, Public Safety and Emergency Prepared-
The Subcommittee was asked “to review the solicita-
tion laws in order to improve the safety of sex-trade
workers and communities overall, and to recommend
changes that will reduce the exploitation of and violence
against sex-trade workers” [2, p. 2]. Members of all four
federal political parties (two Liberals, two Con servativ es,
one New Demo crat, and one Bloc Qu ébécois) comp rised
the Subcommittee.
Like every other body that has examined Canadian
prostitution law since the Fraser Committee in 1985,
Subcommittee members agreed that:
The status quo is unacceptable. The social and legal
framework pertaining to adult prostitution does not ef-
fectively prevent and address prostitution or the exploi-
tation and abuse occurring in prostitution, nor does it
prevent or address harms to communities. This frame-
work must therefore be reformed or reinforced [2, p . 86].
But the Subcommittee was divided over the two con-
flicting models of law reform that were proposed during
its extensive hearings, which included testimony from
over 300 witnesses across Canada. It is worth reviewing
the main dimensions of this debate as it represents a mi-
crocosm of the controversy that has played out around
the world over prostitution law:
a) The “sex work as victimization” or radical feminist
prohibitionist perspective: prohibit sex purchase, procur-
ing and other forms of “exploitation”.
b) The “sex work as work,” prostitutes’ rights, liberal
feminist perspective: remove all reference to prostitution
from criminal law.
1) Rad ical-feminist abolitionism28 (e.g. [1,40-44]) – aka
the “Nordic” model of prostitutio n law29—is an argument
for prohibiting purchase of sex, procuring, and living on
the avails of prostitution of another person with the ulti-
mate goal of eradicating pro stitution. Because p rostitutes
are viewed one-dimensionally as “victims”, selling sex
would continue to be lawful.
The Nordic model enshrines in law the message that
prostitution is unacceptable because:
The distinction between forced and voluntary prosti-
tution is largely spurious; prostitution is female sex-
ual slavery; all prostitutes are victims of sex traf-
Prostitution is violence against women.
Prostitution involves an asymmetrical power ar-
rangement in which the seller is subordinate; for this
reason, all prostitution is exploitative.
26No charges were laid that year against any of the city-licensed mas-
sage and body rub parlours that police well knew were fronts for pros-
27The Subcommittee was reconvened after general elections in2005
and, with some opposition from the newly elected Conservative party,
again in 2006. When its report in December 2006 it was a subcommit-
tee of the Standing Committee on Justice and Human Rights.
28For a description of the “radical” compared to other feminist perspec-
tives on prostitution, see Bromberg [45].
29For a description of this legal regime, see International Center for
Criminal Law Reform and Criminal Justice Policy [46].
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution43
A woman does not truly consent to prostitute, even
if she claims that she does; very few women would
choose to prostitute if they really h ad choices.
Selling sex harms the prostitute psychologically and
Because it treats women as sex objects, prostitution
harms all women.
It will be difficult if not impossible for women to
achieve equality or control their own bodies as long
as buying sex and third-party profit from prostitution
is tolerated.
Male prostitution involves wealthy older males ex-
ploiting younger powerless males.
Because the prostituted woman is a victim,” prof-
iting from prostitution of other persons and buying
sex should both be criminal offences.
2) Liberal/libertarian feminism favours “decriminaliza-
tion” of prostitution, or maintaining its lawful status in
jurisdictions where it is not criminalized. Generic crimi-
nal and civil laws would be used to control violence and
exploitation in any work, including prostitution, and the
nuisances associated with any street commerce, including
street prostitution. Organized around a defence of prosti-
tutes’ rights, it holds that:
Forced prostitution should be distinguished from vo-
luntary prostitution and cross-border trafficking
should be distinguished from migration. Broadly
speaking, sexual slavery should be distinguished
from prostitution”, which involves varying degrees
of choice”.
A womans/ mans right to control her/ his body in-
cludes the right to pros titute.
Women cannot achieve equality if they do not control
their own bodies, including whether to sell sexual
Regardless of whether money changes hands, adults
who consent to engage in sex acts that would be legal
apart from the payment involved should not be sub-
ject to criminal penalty.
Violence, pimp exploitation, nuisance, low self-esteem
are indirectly caused by or exacerbated by the crimi-
nalization and stigmatization of prostitution, not by
the act of selling sex as such.
Commercial sex is not necessarily a patriarchal so-
cial relation involving an inherently unequal power
As long as sellers and buyers of sex are criminalized,
prostitutes will continue to be stigmatized and put at
risk of physical and psychological harm.
When the prostitute and customer contract a sexual
service, prostitution should be treated as a form of
Although there is cons iderable terminological slippage,
advocates of legal prostitution sometimes distinguish
“decriminalization” and “legalization” (e.g. [7; 47, pp.
“Decriminalization” would remove all reference to
“prostitution” from criminal law, and would use generic
civil laws to control prostitution rather than specific reg-
ulation of prostitution. “Legalization” involves specific
licensing of prostitutes and/or pro stitution establishments,
including state control of brothels and the like, combined
with criminal law to control various aspects of prostitu-
tion, including its visibility. Prostitute rights organiza-
tions like the short-lived ASP (Alliance for the Safety of
Prostitutes) in Canada and the almost fifty-year old
COYOTE30 (Call off Your Old Tired Ethics) in the USA
oppose “legalization” on the grounds that a rigid regula-
tory system could end up being as, or more oppressive
than criminalization. Indeed, they view the Nevada sys-
tem, which allows brothels but not independent self-em-
ployed prostitution, as a form of “state pimping.”31
After hearing lengthy submissions from advocates of
both camps, the majority report by the Liberal, Bloc
Québécois and New Democrat Party members accepted
the distinction between forced and voluntary prostitution ,
and agreed that prostitution between consenting adults
should not be subject to criminal penalty:
[S]exual activities between consenting adults that do
not harm others, whether or not payment is involved,
should not be prohibited by the state... [I]t is preferable
to concentrate our efforts on combating exploitation and
violence in the context of prostitution, rather than crimi-
nalizing consenting adults who engage in sexual activi-
ties for money… [G]iven that prostitution itself is not
criminalized, the legislature ought to decide where and
under what circumstances it can occur [2, p. 90].
The majority report favoured a pragmatic approach
that would increase services for people wishing to leave
prostitution, and stress harm reduction “to address the
underlying concerns of poverty and social inequa lity and
to meet the needs of individuals engaged in prostitution
with respect to their health and safety” [2, p. 89]. How-
ever, the majority report made no substantive recom-
mendations for law reform, thereby failing to meet its
primary mandate [48].
The Conservative party’s minority report opposed any
form of lawful prostitution. It agreed with the prohibi-
tionist claim that prostitution is violence against women,
but was not prepared to embrace the radical-feminist
proposal to implement the Nordic model of demand-side
prohibition which would mean that selling sex continues
to be lawful:
31Radical feminists would likely regard just about any type of regulatory
system as “state pimping.”
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
[T]he Conservatives do not believe it is possible for the
state to create isolated conditions in which the consen-
sual provision of sex in exchange for money does not
harm others. [A]ny effort by the state to decriminalize
prostitution would impoverish all Canadians—and Ca-
nadian women in particular—by signalling that the
commodification and invasive exploitation of a womans
body is acceptable. [B]ecause of the negative elements it
attracts, prostitution is unacceptable in any loca-
tion—commercial, industrial or residential, including
massage parlours and private homes…
The Conservatives therefore… propose a new ap-
proach to criminal justice in which the perpetrators of
crime would fund, through heavy fines, the rehabilitation
and support of the victims they create… As for the pros-
titutes themselves, the Conservatives recommend a sys-
tem in which first-time offenders and those forced or co-
erced into the lifestyle are assisted out of it, and avoid a
criminal record. However, those who freely seek to bene-
fit from the business of prostitution would be held ac-
countable for the victimization which results from pros-
titution as a whole. To address the problem of the
two-tiered sex trade… law enforcement must deal equally
and consistently with all forms of prostitution, whe ther i t
be found on the street, in escort services, massage par-
lours, bawdy houses, or other locations [2, pp. 90-91].
In commenting on the “Difficulty of Finding Consen-
sus” the Subcommittee concluded that, just like much of
the testimony it heard, “the divergence between mem-
bers’ views on prostitution is often philosophical.” Con-
servatives saw it as a “form of violence… a form of ex-
ploitation in and of itself”. Members representing the
three other Federal political parties viewed prostitution
by consenting adults “as a human rights issue—the right
of an adult to use his or her body to provide sexual ser-
vices in exchange for money and to operate in a safe en-
vironm ent ” [1, p. 9 2] .
These same philosophical and ideological issues
would be aired again in the most recent Federal body to
consider prostitution law reform at the time of writing,
the Twelfth Report of the Standing Committee on the
Status of Women [9].
17. “Outrage”: The Standing Committee on
the Status of Women (2007)
Pursuant to its mandate under the order that created the
Standing Committee on the Status of Women and the
motion that it adopted in September 2006, the Commit-
tee’s twelfth report [9] examined “human trafficking”.
Given its claim [9, p. 1] that 92% of all human traffick-
ing involves sex ual exploitati on, the Standing Committee
did not consider trafficking in any other context.
Rather than beginning with an evaluation of evidence,
the majority report began by adding a qualification to the
United Nations Protocol to Prevent, Suppress and Pun-
ish Trafficking in Persons, Especially Women and Chil-
dren [49], which defines trafficking as:
The recruitment, transpo rtation, transfer, harbouring or
receipt of persons, by means of the threat or use of force
or other forms of coercion, of abduction, of fraud, of de-
ception, of the ab use of power or of a positio n of vulner-
ability or of the giving or receiving of payments or bene-
fits to achieve the consent of a person having control
over another person, for the purpose of exploitation.
Not satisfied with this definition, the majority report
added the follo wi n g proviso:
[T]he Committee considers that definition to be weak-
ened by its lack of clarity with respect to what constitutes
sexual exploitation. For that reason, the Committee
wishes to clarify that prostitution and pornography are
forms of sexual exploitation, wherever they occur—on
the street, in massage parlours, modelling agencies, etc.,
or through escort agencies [9, p. 3].
Its report then examines Canada’s efforts to combat
trafficking, the prevention of trafficking, the protection
of victims, and the prosecution of offenders.
The majority report’s first four recommendations in-
volve what would be relatively non-controversial issues
for both prohibitionists and regulationists, including
tackling gender inequality and poverty, and the many
problems affecting Canadian aboriginals. It’s fifth, sixth
and seventh recommendations encourage the Canadian
legislature to adopt the Nordic model of prostitution law
that criminalizes the purchase of sex and repeals all of-
fences relating to the activities of sex sellers, including
being found in a common bawdy-house and communi-
cating. Other recommendations relate to sex tourism, the
prohibition of members of the military from buying sex
abroad, the age of consent, combating trafficking in the
modeling industry, women’s migration, strengthening
anti-trafficking measures, more research and data gath-
ering, better education of police about trafficking, en-
hanced victim services and protection of trafficking vic-
tims, and various measures to improve the police and
court response to sex traf ficking.
An examination of the list of witnesses invited to give
testimony to the Standing Committee on the Status of
Women raises important questions about the responsibil-
ity of any such Committee to give a fair hearing to evi-
dence supporting differences of opinion over the issues it
Rather than hearing testimony from representatives of
the two general approaches to prostitution law reform
that the Subcommittee on Solicitation Laws identified—
i.e. the “prohibitionist” and “regulationist” camps—re-
searchers who presented evidence to the Subcommittee
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution45
that questioned some of th e core claims of prohibition ists
were not invited to make submissions to the Standing
Committee on the Status of Women.
Given the ideological filter that appears to have been
employed in the process of selecting witnesses, perhaps it
is not surprising that the Status of Women majority re-
port turned its “outrage” over prostitution into a clarion
call for Canada to adopt the “Nordic model” of de-
mand-side prohibition, together with a series of policy
and educational initiatives to support it. Even so, the mi-
nority report of the two Bloc Québécois members drew
attention to the paucity of evidence presented to the
Committee and expressed concern about the ideology
underpinning the majority report:
The report makes value judgments on prostitution and
is condescending at times, especially in Recommendation
6 [criminalize sex purchasing]. The Bloc Québécois op-
poses sexual exploitation and regards prostitution as a
form of it. In our opinion however criminalizing the pur-
chasing of sexual services would not solve the problem;
on the contrary, this could increase the risk of assault
relating to these practices, which are already dangerous
enough By trying to do too much too quickly, the
Committee has overlooked some aspects of the issue and
we are unable to suppo rt the report in its current form [9,
p. 58].
Since 1985 when the Special Committee on Pornog-
raphy and Prostitution [7] called for fundamental reform
of prostitution law some 300 sex workers have been
murdered or gone missing. In terms of resolving the ob-
vious contradictions and inconsistencies that the Special
Committee identified, we are no further ahead. Dissensus
prevails. On one side, the majority report of the Stand ing
Committee on Justice and Human Rights report opted for
regulation of consenting adult prostitution. On the other,
the Conservative party minority report proposed crimi-
nalizing both the buying and selling of sex, whiles the
majority report of Standing Committee on the Status of
Women preferred the Nordic model of demand-side pro-
Not one of these committees has proposed that we
keep the current system of “unacceptable” law, and yet
the status quo prevails. Meanwhile, women involved in
street-level prostitution continue to be murdered and
Faced with this deadly inertia, two groups of sex
workers have turned to the courts for relief, arguing that
Canada’s prostitution laws violate several of their con-
stitutionally guaranteed rights, especially their right to
“security of the person”. By turning to the courts they
can at least force an evaluation of the evidence being
offered to support the current Cri minal C ode prohibi t ions.
To understand the Ch arter arguments currently before
the courts, they need to be placed in the context of pre-
vious Supreme Court of Canada decisions. To understand
these, we turn next to the mechanism enabling judicial
review of legislative decisions.
18. Prostitution Law on Trial
The Canadian Charter of Rights and Freedoms com-
prises Part 1 of the Constitution Act (1982), the legisla-
tion which formally made Canada a constitutional de-
mocracy. Its Constitution specifically allows for judicial
review of legislative decisions.32 If the Court concludes
that a law does limit a protected right, it then has to de-
termine whether that limit is “demonstrably justified in a
free and democratic society” (Charter Section 1). To
make this determination, the court applies the test laid
out in R. v. Oakes ([1986] 1 S.C.R. 103).
The “Oakes test” poses two primary questions:
a) Is the legislative objective of the impugned law of
sufficient importance to warrant overriding a constitu-
tionally protected right? Th e legislative objective must be
“pressing and substantial” before it can be characterized
as sufficiently important to justify restricting a right.
b) Does the party seeking to invoke Section 1 show
that the means chosen are reasonable and demonstrably
justified in a free and democratic society? This second
question involves a three part “proportionality test” that
allows the court to balance the interests of society with
those of individuals and groups:
(1) The measures adopted must be rationally con-
nected to the achievement of the objective in question;
they must not be arbitrary, unfair or based on irrational
(2) The means chosen, even if rationally connected to
the objective, must impair as little as possible the right
and freedom in question.
(3) There must be a proportion ality b etween the effects
of the measures responsible for limiting the Charte r
right or freedom, and the objective which has been
identified as being pressing and substantial.
In 1990 and 1992 the Supreme Court of Canada agreed
that the communicating and living on the avails law do
limit certain Charter rights, but as we shall see next, the
Court ruled that the limitations of these rights are “de-
monstrably justified”.
32Constitution ActSection 52(1) says. “The Constitution of Canada is the
supreme law of Canada, and any law that is inconsistent with the provi-
sions of the Constitution is, to the extent of the inconsistency, of no force
or effect.”
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
19. The Reference Case (1990), R. v. Skinner
(1990) and R. v. Downey (1992)
The first time questions about th e constitutional integrity
of prostitution law reach ed the Supreme Court of Can ada
was in 1990. The case exemplifies the test that courts
must employ once they have decided that a law limits a
constitutional righ t, as it did in this instance.
Because of the uncertainty created by a series of lower
court decisions, the Province of Manitoba petitioned the
Supreme Court to rule on whether the communicating
and bawdy house laws violate Charter Section 2(b),
which guarantees “fundamental freedoms” such as “free-
dom of expression” and Section 7, which guarantees “life,
liberty and security of the person” and the right “not to
be deprived thereof except in accordance with the princi-
ples of fundamental justice?”
In determining if a law complies with principles of
fundamental justice, the Court has to determine whether
it is “unduly broad” or “impermissibly vague”. Also the
Court was asked to determine whether Section 7 protects
“economic rights”, in this case a prostitute’s right to earn
a living.
In its 4:3 decision the majority on the Supreme Court
of Canada held that, while the communicating law does
infringe freedom of expression, the elimination of the
nuisances that street prostitution creates is a governmen-
tal objective of sufficient importance to justify that limit
(Reference re ss. 193 and 195.1(1)(c), 1990).33 The dis-
senting opinion reasoned that the legislative response of
potential imprisonment for a combination of two lawful
actions—prostitution and communicating—is much too
The Supreme Court agreed with the lower courts that
the bawdy house laws do not violate the Charter.
In a second case (R v. Skinner, 1990) the Supreme
Court was asked to rule on whether the communicating
law violates Section 2(d) of the Charter—“Freedom of
Association”—as well as Section 2(b). The Court upheld
the precedent it had set in the reference case regarding
2(b) and ruled that the communicating law did not violate
2(d). It reasoned that communicating for the purpose of
buying or selling a sexual act:
[I]s expressive conduct and not conduct of an associa-
tional nature. The [communicating la w] does not directly
proscribe an agreement between two individuals for the
exchange of sex for money, nor sexual relations between
consenting individuals. The mere fact that an impugned
legislative provision limits the possibility of commercial
activities or agreements is n ot sufficient to show a prima
facie interference with s.2(d).
One of the most important aspects of the Supreme
Court’s decision in both these cases is that Justice Can-
ada’s evaluation—which concluded that the communi-
cating law failed to reduce street prostitution in Toronto
and Vancouver, the two cities experiencing the most ex-
tensive street prostitution problems [27]—was not en-
tered into evidence. Reflecting on this omission, the Fed-
eral-Provincial-Territorial Working Group argued that:
Had the research results been available prior to the
Supreme Court decision, the question of whether s.213
[the communicating law] is a justifiable infringement on
freedom of expression might have been considered dif-
ferently [36, p. 7].
In 1992 a man charged for “living on the avails of
prostitution” challenged the constitutional validity of the
“reverse onus” clause of that law; if a person is habitu-
ally in the company of prostitutes the onus switches to
that person to prove that he/she was not living on the
avails of prostitution of another person.
In another four to three decision, the Supreme Court
upheld the law. The majority argued that, while th e living
on the avails law does infringe Section 11(d) of the
Charter—the right to be “presumed innocent until prov-
en guilty according to law”—it is a demonstrably justifi-
able limit of the right, because b y “curbing the exploitiv e
activity of pimps” it is “attempting to deal with a cruel
and pervasive social evil”.34 The court argued that re-
verse onus clause is proportional given that:
Evidence of pimps living on the avails is difficu lt, if not
impossible, to obtain without the cooperation of the
prostitutes, who are often unwilling to testify for fear of
violence against them by their pimps… Parliament has
chosen a reasonable and sensitive position. To eliminate
the presumption completely would reward the accused
for the intimidation of vu lnerable witnesses in a situation
where such intimidation is widespread (R. v. Downey,
However, the dissenting judges argued that the living
on the avails law cast too wide a net:
The section catches people who have legitimate non-
parasitic living ar rangements with prostitutes… Spou ses,
lovers, friends, children, parents or room-mates may live
with or be habitually in the company of a prostitute,
which is not a criminal offence, without living on the
avails of prostitution. Any presumption which has the
potential to catch such a wide variety of innocent people
in its wake can only be said to be arbitrary, unfair and
based on irrational consideratio ns. (R. v. Downey, 1992)
Much has changed since these three Supreme Court of
Canada decisions, not the least because of the conviction
34The decision cited the Committee on Sexual Offences Against Chil-
dren and Youth [6] and the Special Committee on Pornography and
Prostitution [7] as providing evidence of this “evil.”
33In 1989 a reorganization of the Criminal Code resulted in these sec-
tions being renumbered. As of 1989, s. 193 became s.210 and s. 195.1
became s.213.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution47
of serial killer Robert Pickton, who may have murdered
as many as 49 street-involved women from Vancouver’s
Downtown Eastside, and because of the much more ex-
tensive research that is available about the effects of the
enforcement of various prostitution laws. These changes
are being brought into sharp relief by the Charter chal-
lenges now before the Ontario and BC courts.
20. Sex Workers Fight for Their
Constitutional Rights
Two groups of former and current sex workers—one in
Ontario (Bedford v. Canada), the other in British Colum-
bia (Downtown Eastside Sex Workers United against
Violence Society and Sheryl Kiselbach v. Canada)—are
currently before the courts challenging various Criminal
Code sections relating to prostitution.
The Ontario Charter challenge involves three women
who have more than forty years of sex work experience
among them. One of the women has already been con-
victed of keeping a common bawdy house, and all three
are concerned that if they continue to work indoors, or
resume indoor work, they will be subject to criminal
prosecution for violating the bawdy house laws. One of
the women is concerned that her partner may be prose-
cuted for living on the avails of prostitution simply be-
cause he lives with her.
The essence of their Charter challenge is that, al-
though it is lawful to work as a prostitute, the bawdy
house and living on the avails prohibitions (Criminal
Code sections 210 and s.212.(1)(j), respectively) prevent
prostitutes from being able to work in a relatively safe
and secure environment. The bawdy house prohibition
denies the sex seller a safe place for pursuing the lawful
act of prostitution. The living on the avails provision
prevents the sex seller from hiring the services of third
parties to help create a protective work environment.
Together with the communicating law, which also vio-
lates Section 2(b) of the Charter—freedom of expression
—the bawdy house and living on the avails provisions
compromise the prostitute’s Charter Section 7 right to
“life, liberty and security of the person”.
In British Columbia the Downtown Eastside Sex
Workers United against Violence Society (SWUAV) and
a former sex worker also are challenging the constitu-
tional validity of several prostitution laws (Downtown
Eastside Sex Workers United against Violence Society
and Sheryl Kiselbach v. Canada, 2008). SWUAV com-
prises street-involved women from Vancouver’s Down-
town Eastside who, their lawyers argue, do not have the
ability individually to commence such an action in their
own names, and would be put at risk in a variety of
ways35 if they identified themselves. They live in poverty,
many are Aboriginal, they all have experienced violence
in the course of their work, and they have various physi-
cal and mental health challenges and disabilities, includ-
ing s ubstance addiction.
The SWUAV case goes further than its counterpart in
Ontario by challenging the constitutional validity of the
procuring laws (ss.212, except for subsections (g) and
(i)36) as well as the bawdy house (ss.210, 211, 212.(c))
and communicating (s.213) laws. Also, it adds two con-
stitutional arguments to those advanced in Bedford v
Canada (2010).
First, SWUAV argues that the impugned laws violate
Charter Section 2(d)—“freedom of association”—by
preventing prostitutes from working together, referring
clients to other workers, sharing revenue, and maintain-
ing business premi ses together.
Second, SWUAV argues that the impugned laws vio-
late Charter Section 15, which guarantees “equality be-
fore and under law and equal protection and benefit of
law without discrimination and, in particular without
discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disabil-
SWUAV argues that sex workers as a group are dis-
advantaged and stigmatized Women, transgendered per-
sons and gay men are ov er-represented among sex work-
ers, as are aboriginals, people living in poverty, and peo-
ple with substance addictions. The laws and their en-
forcement discriminate against street-level sex workers
in a variety of ways by, for example, having diversion
programs for clients but not sex workers, and by treating
street and indoor workers differently. They discriminate
against all sex workers by treating them differently from
people who have consensual sex without exchange of
money, and by treating sex workers differently from oth-
er persons who perform other personal services for pay.
In summarizing the effects of this discrimination, the
Statement of Claim argues:
The adverse effects of the Prostitution Laws on sex
workers are wide-ranging, including a heightened risk of
violence in the course of their occupation, the exacerba-
tion of pre-existing disadvantage, the imposition of stig-
ma and stereotyping in relation to their occupation, im-
position of barriers to accessing services and exiting sex
work, and barriers to accessing the protections, rights,
35Including: a) physical, sexual and emotional violence; b) further dis-
crimination and social alienation; c) reduced ability to access social and
medical services; d) eviction from housing; e) attraction of attention
from child protection services; and e) more difficult relations with po-
36s.212.(1)(g) prohibits procuring a person to enter or leave Canada for
the purpose of prostitution, and (i) prohibits administering an intoxicant
to a person in order to enable anyone to have illicit sexual intercourse
with that person.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
and entitlements pursuant to workplace, labour and
health and safety regulations…
Those regulations include the Employment Standards
Act (R.S.B.C., 1996 c. 113), the Workers Compensation
Act (R.S.B.C., 1996), the Labour Relations Code (R.S.B.C.,
1996 c. 224), the Human Rights Code (R.S.B.C., 1996 c.
210), the Canadian Human Rights Act (R.S. 1985, c H-6)
and the Employment Insurance Act (R.S.C. 1996, c.23)
(for further discussion see Pivot Legal Society, 2006).
In December 2008 SWUAV’s case hit a speed bump
when the court ruled that neither SWUAV nor a former
sex worker have either a “private” or “public interest
standing” that would enable them to bring their Charter
arguments before the court.
Private interest standing occurs when a person has in-
terests that are directly affected by a law, as would be the
case if a person had been charged under the impugned
Criminal Code prostitution laws. However, SWUAV’s is
a civil case and does not involve persons who are cur-
rently charged und er any of those laws .
Public interest standing is granted when a party who
has a direct interest in a particular piece of legislation or
a genuine interest in its constitutional validity raises a
serious issue about its validity and has no other effective
way of bringing that issu e to cour t.
The chambers judge ruled that none of the parties had
a private interest standing. Further, he ruled that although
they clearly have a direct and genuine interest in the va-
lidity of the impugned laws, there would be other ways
for the case to come before the court, either in the proc-
ess of a criminal prosecution or if a current prostitute
launched a civil suit seeking declaratory relief, as had
already happened in Bedford v Canada.
SWUAV appealed the decision to the Court of Appeal
for British Columbia, arguing along with several inter-
venors37 that the decision denying standing did not take
into sufficient consideration the nature of the lives of th e
Downtown Eastside women in question. Nor did it take
into consideration the “systemic” and “comprehensive”
nature of SWUAV’s constitutional challenge, which
raises questions about the combined effect of the im-
pugned laws.38 The Court of Appeal agreed (Downtown
Eastside Sex Workers United against Violence Society
and Sheryl Kiselbach v. Canada, 2010). In a majority
decision it ruled that there is no other way that a woman
from this highly marginalized group could be reasonably
expected to bring serious questions about the validity of
prostitution laws before the court, and noted that Bedford
v Canada would be binding in British Columbia only if it
were to be upheld by the Supreme Court of Canada. Also
SWUAV is raising constitutional issues that are not ad-
dressed in Bedford.
The Crown has appealed the Court of Appeal decision
to the Supreme Court of Canada, which will hear the case
this year (2011).
Although it will have ended up derailing SWUAV’s
constitutional challenge for at least three years, the mat-
ter of standing is crucial when it comes to the p rinciple of
equal access to law and the difficulty marginalized
groups have accessing justice—especially when the mar-
ginalized citizens in question allege that the impugned
laws deny them equality under the law.
While observers were waiting for the outcome of
SWUAV’s appeal on the matter of standing, the Ontario
Superior Court delivered its judgment in Bedford.
21. Bedford v Canada: The Ontario Superior
Court of Justice Decision
The first line of the Crown’s defence of the constitutional
integrity of Canada’s prostitution laws was to argue that
the Applicants failed to demonstrate any basis in evi-
dence or law to warrant reconsidering the issues dealt
with in the 1990 Reference case.
If the court disagreed with this assessment, and pro-
ceeded to hear the specific constitutional arguments be-
ing advanced, the Crown argued that Applicants did not
meet the evidentiary burden to prove that the impugned
laws violate the Charter. The Crown alleged that the
Applicants’ s.7 argument is based on the assertion that
there is a constitutional right to engage in prostitution39
and, further, that the Charter does not mandate Parlia-
ment to design a legal regime that would allow the Ap-
plicants to engage in prostitutio n with fewer hindrances.
In justifying the impugned laws, the Crown relied
primarily on the radical-feminist argument that the social
science evidence in Canada and internationally demon-
strates that prostitution is inherently dangerous for the
individuals involved. It is not the law that causes these
harms; prostitution entails significant harm to society
regardless of the legal regime in which it occurs. The
Crown claimed that prostitution exacerbates o ther harms,
including drug addiction, violence, trafficking and in-
volvement of organized crime. Given these harms, even
if the impugned laws do violate any Charter right, the
violation is demonstrably justified as a reasonable limit
under Section 1.
The two intervenors in BedfordThe Attorney Gen-
eral of Ontario (Ontario) and a religious coalition in-
37The British Columbia Civil Liberties Association, the Trial Lawyers
Association of BC and the West Coast Women’s Legal Education and
Action Fund.
38It would be highly unlikely in a criminal proceeding that a person
would be charged with all three of the impugned sections, in which
case they may not be able to raise the same kind of challenge.
39The court clarified that its decision does not address this question
(paragraph 25), but then the Applicants did not claim that there is such
a constitutional right.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution49
cluding The Christian Legal Fellowship, REAL Women of
Canada, and the Catholic Civil Rights League (CLF)—
similarly sought to defend Canada’s prostitution laws on
the grounds that prostitution is inherently harmful. On-
tario argued that the physical and psychological harms of
prostitution arise not from the Criminal Code, but from
the inherent inequality that characterizes the prostitute-
customer relationship. The impugned provisions operate
to limit the negative effects of prostitution on both the
prostitute and the public by curtailing commercialized
and institutionalized p rostitution , and by proh ibiting pub-
lic prostitution. Societal values and human dignity must
be taken into con sideration when interpreting the legisla-
tive objectives of the impugned provisions.
Adding to this argument, CLF asserted that the laws
prohibiting various aspects of prostitution reflect a core
Canadian value rooted in interfaith morality and the
Charter; prostitution offends the conscience of ordinary
Canadians, is immoral, and should be stigmatized. CLF
lamented that striking the laws down would send the
message that prostitution is a legitimate way for Canadi-
ans to make a living.
22. Research on Trial
The Applicants and Crown called dozens of witnesses to
testify, including police officers, social service providers,
sex workers, resident group representatives, a politician,
a journalist, and eighteen expert witnesses on prostitu tion
research and research methodology.
The Crown’s choice of expert witnesses reveals the
ideological premises of its case. The Crown’s research
experts included three well-known international advo-
cates of radical-feminist demand-side prohibition: Janice
Raymond, Melissa Farley and Mary Sullivan. Of these
three only Melissa Farley had conducted any research in
Canada, a study of street prostitution40 in Vancouver [50].
The Crown called only one other witness who has con-
ducted research on prostitution in Canada, including a
study of street sex workers [51] and another of men who
participated in British Columbia’s “john school” [52].
The Crown also called Ottawa sociology Professor Rich-
ard Poulin, whose research concerns trafficking and sex-
ual exploitation of children internationally (e.g. [53]).
The Applicants called eleven expert witnesses, seven of
whom had conducted numerous studies of prostitution
and/or prostitution law in Canada.41
The case pitted the Crown’s claim that prostitution is
inherently dangerous and harmful no matter where it
occurs against the Applicant’s claim that the laws expose
prostitutes to danger by preventing them from taking
various kinds of relatively simple safety measures. Con-
sequently, although the Court made it clear that its role
was not to decide which model of pros titution law is best,
in the process of evaluating the merits of the particular
Charter challenge arguments set out by the Applicants it
had to evaluate many of the evidentiary claims that are
advanced for and against prostitution prohibition. In this
sense, research itself was very much on trial because, as
the Crown’s factum acknowledged, “Much of the argu-
ment in this case turns on disputes over what conclusions
can be drawn from the voluminous social science evi-
dence – particularly in respect to cau s ality [54, p. 5]”.
23. Synopsis of the Decision
The court agreed that the situation in Canada has sub-
stantially changed since the Reference case, in which
case the legal principle of stare decisis42 could be set
aside. New legal arguments were being presented along
with new evidence, including the government’s evalua-
tion of the communicating law [22-27], twenty years
more research about violence, and the experience of the
serial murder and disappearance of dozens of street-
connected women from Vancouver’s Downtown Eastside.
Indeed, the government’s own research suggested that
there is a need to revisit the 1990 Reference decision
(paragraphs 69-7343).
When it came to the risk of violence against prostitutes,
the principle issue at stake, the court concluded:
The evidence44 led on this application demonstrates on
a balance of probabilities that the risk of violence to-
wards prostitu tes can be reduced, although no t necessar-
ily eliminated. The two factors that appear to affect the
level of violence against prostitutes are location or venue
of work and individual working conditions. With respect
to venue, working indoors is generally safer than work-
ing on the streets. Working independently from a fixed
location (in-ca ll) appears to be the safest way for a pros-
titute to work in Canada. That said, working conditions
can vary indoors, affecting the level of safety (paragraph
After weighing the evidence the co urt found that:
1) Prostitutes, particularly those who work on the
street, are at a high risk of being the victims of
physical violence.
42The doctrine of precedent: a court must follow the decisions made by
revious courts in the same province concerning same-fact evidence or
legal principle; lower courts are bound by the decisions of higher courts
in the same province. All Canadian courts are bound by decisions of the
Supreme Court of Canada.
43The citations in this section are all to Bedford v Canada, 2010.
44The 25,000 pages of evidence including transcripts of cross examina-
tions is posted at
40The title of the article is “Prostitution in Vancouver” but its authors
acknowledge that they did not manage to contact any indoor sex work-
41Cecilia Benoit, Augustine Brannigan, Deborah Brock, John Lowman,
Gayle MacDonald, Eleanor Maticka-Tyndale, Frances Shaver.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
2) The risk that a prostitute will experience violence
can be reduced in th e following ways:
a. Working indoors is generally safer than working
on the streets;
b. Working in close proximity to others, including
paid security staff, can increase safety;
c. Taking the time to screen clients for intoxication or
propensity to violence can increase safety;
d. Having a regular clientele can increase safety;
e. When a prostitutes client is aware that the sexual
acts will occur in a lo ca tion th at is pr e-d etermin ed,
known to others, or monitored in some way, safety
can be increased;
f. The use of drivers, receptionists and bodyguards
can increase safety; and
g. Indoor safeguards including closed-circuit televi-
sion monitoring, call buttons, audio room moni-
toring; financial nego tiations done in advance can
increase safety.
3) The bawdy-house provisions can place prostitutes
in danger by preventing them from working in-call
in a regular indoor location and gaining the safety
benefits of proximity to others, security staff, closed-
circuit television and other monitoring.
4) The living on the avails of prostitution provision
can make prostitutes more susceptible to violence
by preventing them from legally hiring bodyguards
or drivers while working. Without these supports,
prostitutes may proceed to unknown locations and
be left alone with clients who have the benefit of
complete anonymity with no one nearby to hear and
interrupt a violent act, and no on e but the pro stitute
able to identify the agg r essor.
5) The communicating provision can increase the vul-
nerability of street prostitutes by forcing them to
forego screening customers at an early and crucial
stage of the transaction (paragraph 421).
The presiding judge concluded that the three impugned
provisions prevent prostitutes from taking precautions,
some rudimentary, that can reduce the risk of violence
towards them. Consequently, “Prostitutes are faced with
deciding between their liberty and their security of the
person. Thus while it is ultimately the client45 who in-
flicts violence upon a prostitute, in my view the law
plays a sufficient contributory role in preventing a pros-
titute from taking steps th at could reduce the risk of such
violence” (paragraph 362).
Having found that the laws violate certain Charter
rights, the court then employed the Oakes test to deter-
mine whether the legislative objective of each law is of
sufficient importance to warrant overriding a constitu-
tionally protected right. To establish wheth er the laws are
reasonable and demonstrably justified in a free and de-
mocratic society, the court had to consider whether they
are rationally connected to the achievement of their ob-
jective and consistent with the principles of fundamental
justice, and whether they impair a prostitute’s rights as
little as possible.
The Applicants argued that the impugned provisions
are not in accordance with the principles of fundamental
justice because they arbitrarily deprive individuals of
their protected rights, are overly broad to the extent that
they capture behavior that lies beyond their stated pur-
pose, the harmful effects are grossly disproportionate to
their benefits, and they are not consistent with th e rule of
The court agreed on most counts.
While the court found that the legislative objective of
the living on the avails offence is to prevent exploitation
of prostitutes, ironically “it may serve to increase the
vulnerability of tho se it is inten d ed to protect” (parag rap h
379) and is “overly broad” because it captures several
non-exploitative arrangements (paragraph 402).
Although the court did not find that the bawdy-house
provisions are themselves arbitrary, “their interplay with
the other impugned provisions renders them so” (para-
graph 385). Because they assign criminal liability to
those direct p articipants of bawdy ho use prostitu tion who
do not contribute to the harms Parliament seeks to pre-
vent, “the bawdy-house provisions are overly broad as
they restrict the liberty and security of the person more
than is necessary to accomplish their goals” (paragraph
The primary purpose of bawdy house laws is to pre-
vent nuisance, a legitimate state objective. However, this
objective has to be balanced against its effect on prosti-
tute safety. Given that complaints about bawdy-houses
are relatively rare (par agraph 427) the court held that the
effects of the bawdy-house provisions—which prevent
prostitutes from working in a relatively safe indoor envi-
ronment—are grossly disproportional to their purpose
(paragraph 428).
The prohibition of living on the avails targets the fi-
nancial exploitation of prostitutes, another legitimate
state interest. However, th is objective has to be balan ced
against the effect of that law in preventing prostitutes
from legally hiring bodyguards, drivers, or other security
staff. In this respect, the court concluded that the law
presents prostitutes with a “perverse choice”: they can
safeguard their security, but only at the expense of an-
others liberty. These effects place prostitutes at greater
risk of harm and may make it more likely that a prostitute
will be exploited (paragraph 429).
45With these comments the court failed to recognize that an unknown
roportion of much of the violence is committed by men posing as
clients, as they did not intend to purchase a sexual service.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution51
The communicating law fulfills a legitimate state pur-
pose by targeting the general nuisance created by street
prostitution, including noise and street congestion.
However, these objectives must be balanced against the
fact that the provision forces prostitutes to forego
screening clients, which the court found to be an essen-
tial tool to enhance their safety (paragraph 432):
… one effect of the communicat ing provision (as well as
the bawdy-house provisions) is to endanger prostitutes
while providing little benefit to communities. In fact, by
putting prostitutes at greater risk of violence, these sec-
tions have the effect of putting the larger society at risk on
matters of public health and safety. Th e harm suffere d by
prostitutes carries with it a great cost to families, law
enfor cement, and communities and impacts upon the
well-being of the larger society (paragraph 434).
Although the communicating law is rationally con-
nected to its objective, it prohibits all communicative
activity for the purpose of engaging in prostitution or of
obtaining the sexual services of a prostitute, not merely
those communications that tend to contribute to social
nuisance. The court concluded that the evidence tends to
demonstrate that some of the communication being cur-
tailed is capable of reducing the risk of harm to street-
based prostitutes who are statistically much more likely
than the general population to be victims of violence.
Curtailing these communications “constitutes a more
serious impairment of the individual’s freedom than the
avowed legislative objective would warrant”. On this
basis alone, the court found that the communicating pro-
vision does not “minimally impair” the expressive rights
of the Applicants and therefore cannot be upheld as a
“reasonable limit” under s.1 (paragraph 472).
These effects are all the more problematic given that
the communicating law does not appear to effectively
curtail the social nuisance asso ciated with street prostitu-
tion. While the communicatin g law may allow the police
to direct prostitutes to social services or cap ture pimps on
occasion, the government evaluation [27] suggests that
its salutary effects in combating the social nuisance asso-
ciated with street prostitution are minimal (paragraph
After weighing the importance of its objective and sa-
lutary effects against its deleterious effects, the court
found that the communicating provision creates an un-
reasonable limit on the prostitu te’s freedom of expression
(paragraph 489). In the final balancing, the court con-
cluded that, “in pursuing its legislative objective, the
communicating provision so severely trenches upon the
rights of prostitutes that its pressing and substantial pur-
pose is outweighed by the resulting infringement of
rights” (paragraph 504).
The court concluded that the Applicants had proved on
a balance of probabilities that the impugned provisions
infringe their Charter rights, their effects are not propor-
tionate to their objectives, and they do not minimally
impair the Applicants’ rights to liberty and secu rity of the
Because the Crown was not able to demonstrate that
any of the infringements are justified under s.1 of the
Charter, the court declared that the bawdy-house provi-
sions, the living on the avails provision, and the commu-
nicating provision (ss.210, 212.(1)(j), and 213.(1)(c) of
the Criminal Code respectively) violate s.7 of the Char-
ter and are, therefore, unconstitutional (paragraph 506).
The court further concluded that the communicating pro-
vision violates s.2(b) of the Charter, and also could not
be saved by s.1 (paragraph 507).
The Crown immediately appealed the decision, which
is now before the Appeal Court of Ontario. At the time of
writing, the Ontario Superior Court’s decision has been
stayed pending the outcome of the appeal, which will be
heard in 2011.
24. Conclusions
It will take several years for the Ontario and British Co-
lumbia Charter challenges to be concluded, as whatever
decisions the lower courts make are likely to be appealed
by the losing party all the way to the Supreme Court of
Canada. The Supreme Court does not necessarily have to
hear an appeal. However, because provincial appeal court
decisions are only binding in the province in which they
occur, if the Ontario and British Columbia appeal courts
reach conflicting conclusions about the constitutional
status of the prostitution laws—i.e. should one uphold
them and the other strike them down—the Supreme
Court of Canada would presumably hear the case in order
to resolve the contradictory jurisprudence at the provin-
cial level. Given the serious nature of the issu es at stake,
the Supreme Court of Canada may well hear these cases
If the Supreme Court ultimately upholds the Ontario
Superior Court’s decision to strike down the laws, the
Canadian legislatu re will be forced to rewrite its prostitu-
tion laws. Given the rationale underlying the decision, it
is difficult to see how tinkering with the wording of these
laws will resolve the Charter violations the court identi-
fied. At that point the legislature will either have to opt
for direct prohibition of the sale of sex, the purchase of
sex, or both, or it will have to pave the way for a system
of regulation that identifies where and under what cir-
cumstances prostitution can occur.
Either way, one can only hope that the decision will
bring an end to the dead ly inertia that has beset Canadian
prostitution law reform since 1985 when the Special
Committee on Pornography and Prostitution called for
Copyright © 2011 SciRes. BLR
Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
fundamental reform to resolve the contradictions that
beset these “unacceptable” laws.
25. Acknowledgements
Thanks to Michael Goodyear, Ted Palys and Teela San-
ders for their commen ts on earlier drafts of this paper.
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Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution
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