This article is written by Samiksha Madan, a law student at Symbiosis Law School, Hyderabad. This article analyses the legality of prostitution in Canada and scrutinises Bill-36 which was introduced in 2014.

It has been published by Rachit Garg.

Introduction 

Sex work essentially entails the exchange of sexual services for some consideration, which includes both money and goods. Bill C-36, Protection of Communities and Exploited Persons Act, introduced in June 2014 by Justice Minister, the Honourable Peter MacKay, aims to safeguard everyone’s safety by diminishing, deterring, and eventually abolishing the demand for prostitution to the greatest extent possible. Since the goal of Bill C-36 is to reduce the demand for sex work, with the ultimate goal of eliminating sex work in Canada, it criminalizes the procurement of sexual services. Consequently, a shift in focus of criminalisation from persons selling sexual services to those purchasing and financially benefitting from such services was seen. This article seeks to determine what has been essentially entailed under Bill C-36 and what role it has played in the legality of prostitution in Canada.

What is prostitution 

Prostitution is the practice that involves engaging in sexual activity, agreeing to engage, or offering to engage in sexual conduct with another person in exchange for money. The legal status of prostitution varies from country to country and also from region to region within a country, ranging from being an upheld or unenforced wrongdoing, to an unregulated profession. Pornography, sex shows, sexual surrogacy, and other forms of employment in what is sometimes referred to as the ‘sex industry’ are included in the much broader definition of ‘sex work,’ which also includes prostitution. Direct sexual access to the prostitute’s body is provided to the customer as part of the sex work known as prostitution. Brothels are foundations that are solely dedicated to prostitution. The law relating to prostitution is changing all over the world, and some people consider prostitution to be a form of savagery or abuse of women and children.

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In the case of R v. Phippard (2005), the Court ruled that in order to determine whether or not a specific act would be considered a ‘sexual service for consideration, ‘a court would have to consider whether the service is sexual in nature and whether the purpose of providing the service is to sexually gratify the person who receives it. An express or implied agreement or contract for sexual service in exchange for consideration is required. It was stated in the case of R v. Lee (1989) that sexual activity with no expectation of consideration or payment in return for the services provided would not meet the test.

Legal standing of prostitution in Canada 

Bill C-36 represents a significant paradigm modification from treating prostitution as a “nuisance,” as determined by the Supreme Court of Canada in Canada (Attorney General) v. Bedford (2013), to considering prostitution as a kind of sexual exploitation that disproportionately and severely affects women and girls. This revolutionary shift is highlighted by Bill C-36’s stated goal, as expressed in its preamble, and the inclusion of most prostitution offences in Part VIII of the Criminal Code (1985), ‘Offences Against the Person.’ By delivering a strong message that everyone is entitled to dignity and respect, the Bill envisions safeguarding vulnerable people targeted by prostitution, the communities in which it is practised, and society itself. One of Bill C-36’s goals is to provide a shield to prostitutes by acknowledging them as ‘victims of sexual exploitation.’ According to the preamble to Bill C-36, the Parliament wishes to encourage persons who engage in prostitution to report incidences of violence and to leave prostitution.

All you need to know about Bill C-36

Three crimes in the Criminal Code of Canada were found to be unconstitutional in the case of Bedford v. Attorney General of Canada (2013). These offences predominantly dealt with prostitution-related behaviour in violation of Section 7 of the Canadian Charter of Rights and Freedoms. The Section substantiates the preservation of a person’s right to life, liberty, and security, as well as the right not to be deprived of these rights (except in accordance with the principles of fundamental justice). If Parliament had not passed Bill C-36, the declaration of invalidity would have taken effect on December 20, 2014.

Objectives 

Bill C-36, the Protection of Communities and Exploited Persons Act 2014, formulated to criminalize prostitution, was introduced in the year 2014 with three primary objectives include;

  • Protecting sex workers
  • Protecting communities and children from the harm caused by prostitution
  • Criminalizing the purchase of sex in order to reduce the demand for prostitution.

In accordance with the Bill, prostitution is a kind of sexual exploitation that disproportionately affects women and girls. The law seeks to protect the dignity of Canadians and uphold equality by not only outlawing the purchase of sexual services, the exploitation of others’ prostitution, the emergence of financial incentives for the sexual exploitation of others, as well as the institutionalisation of prostitution through profit-making businesses like strip clubs, escort services, etc. that sell sexual services, but also encouraging the victims to report incidents of violence and to leave prostitution.

Different types of prostitution offences

1. Purchasing offence 

The Bill criminalizes the purchase of sexual services by making prostitution itself an illegal practice. Communication for the purpose of purchasing sexual services may result in the criminal charge of “Obtaining Sexual Services for Consideration,” whether it occurs online through ads on Ashley Madison, webcams, Twitter, Instagram, in person at strip clubs, or on the streets. Bill C-36 advances its primary goal of reducing demand for prostitution by criminalising those who produce it, with the objective of eventually eradicating prostitution to the greatest extent achievable. The Bill seeks to prohibit obtaining sexual services for consideration or communicating in any place for that purpose, as stated in Section 286.1, and thus provides some protection to sex workers, as the criminalization of selling their own sexual services is not supported by the bill. 

a) Penalty:

  • Section 286.1(1) – Adult victim

It is considered a dual procedure offence since it entails a maximum penalty of 5 years in prison if charged by indictment and 18 months imprisonment if charged by summary conviction.

Escalation in the minimum fines starts at $500, which is mandatory on summary conviction for a first offence, which would include higher mandatory minimum fines as well if the offence is prosecuted by indictment and is committed in a public place which is or is next to a park, school, or religious institution, or a place where children can reasonably be expected to be present.

  • Section 286.1(2) – Child victim

The provision prohibits the purchase of sexual services for consideration from minors (under the age of 18 years), such that the purchaser of such services from a child victim would be held liable for imprisonment of up to 10 years and mandatory minimum penalties of 6 months for a first offence and one year for any subsequent offences that may also apply.

2. Advertising offences 

Advertising the sale of sexual services is criminalized for the first time under Canadian law through this Bill. It applies to individuals who advertise, either through print media, websites or in locations that offer such sexual services for sale, eg: strip clubs or the sale of another person’s sexual services.

  • Section 286.4 – those who knowingly advertise an offer to provide sexual services for some form of consideration.
  • Section 286.5(1)(b) – those who sell and advertise their own sexual services are protected from criminal liability for committing this offence.
  • Section 286.5(2) – those who participate in the commission of this offence, shall be protected from criminal liability if it relates to their own sexual services.

As a result, sex workers can legally advertise their own sexual services on the Internet or in print, whereas anyone who advertises another person’s sexual service risks proceedings under the new law.

a) Penalty:

It would be considered a dual procedure offence with maximum penalties including 5 years imprisonment if prosecuted by indictment and 18 months if prosecuted by summary conviction.

3. Material benefit offence

Section 286.2 – those who receive financial or other material benefits which are obtained by or derived from the commission of the purchasing offence.

This offence criminalises anyone who receives a financial or material benefit from those who purchase sexual services. It does, however, exempt sex workers who have received such benefits from the sale of their own sexual services or who have used their profits in legitimate business situations, such as supporting their family or purchasing gifts for others.

a) Penalty:

  • Section 286.2(1) – Adult victim 

An indictable offence with a maximum imprisonment of 10 years.

  • Section 286.2(2) – Child victim 

An indictable offence with a maximum of 14 years’ imprisonment and a mandatory minimum of 2 years’ imprisonment.

b) Exceptions – provided that there was no threat or attempt to use violence, abuse of a position of trust, power, or authority, or use of any type of intoxicating substance to encourage the sale of sexual services or engage in conduct that amounted to procuring and receiving a benefit in the context of a commercial enterprise that offers sexual services for sale.

  • Section 286.2(4)(a) – Legitimate living arrangements (e.g., children, spouses, roommates);
  • Section 286.2(4)(b) – Legal or moral obligations (e.g., supporting a disabled parent, gifts);
  • Section 286.2(4)(c) – Goods and services offered to the general public (e.g., accountants, landlords, pharmacists, security companies); and,
  • Section 286.2(4)(d) – Goods and services offered informally for fair value (e.g., babysitting or protective services).

4. Procuring offence

The offence of procurement was previously entailed under Section 212 of the Criminal Code. However, the Supreme Court found it to be in violation of Section 7 of the Charter and consequently struck it down in the Bedford case. 

Section 286.3 – to procure a person, to offer or provide sexual services for consideration or to recruit, hold, conceal, or harbour a person who provides for a certain consideration such sexual services, or exercise control, direction, or influence over that person’s movements, such that an offence under Section 286.1 is facilitated. The expression “to procure” has been defined by the Supreme Court of Canada as “to instigate, induce, or have a persuasive effect, which includes active participation in another’s prostitution on the part of the accused” in the case of R v. Deutsch (1986).

a) Penalty:

  • Section 286.3(1) – Adult victims

An Indictable offence with a maximum sentence of 14 years in jail

  • Section 286.3(2) – Child victim 

An indictable offence with a maximum sentence of 14 years in prison and a mandatory minimum sentence of 5 years in jail.

5. Communicating offence 

Section 213(1)(c) that made stopping or attempting to stop or in any way communicating or attempting to communicate with any individual for the purpose of prostitution or of obtaining sexual services was held to be guilty of the offence entailed under this Section, was ultimately struck down for having negative implications on the security of a person.

  • Section 213(1.1) is the only new offence that explicitly aims to criminalize prostitutes in the course of their work.
  • Section 213(1.1) – communicating in public locations that are or are near school grounds, playgrounds, or childcare centres with the purpose of offering or performing sexual services for consideration. The primary aim of the offence is to protect children from being exposed to prostitution, which is viewed as harmful in and of itself because such exposure risks normalising a gendered and exploitative practice in the eyes of naive and gullible youth and could lead to vulnerable children being drawn into a life of exploitation.

a) Penalty: 

A summary conviction offence with a maximum of 6 months imprisonment.

6) Trafficking in person offences

This takes into its ambit the recruitment, transportation, holding, harbouring, directing, or influencing of individuals to exploit them for sex work. These charges are severe because they are frequently coupled with charges of kidnapping and physical and sexual assault. The punishment for the offence comprises imprisonment for 4 years -14 years.

7) Bawdy House Offences

The provision for this offence, which was previously substantiated under Sections 210 and 211 of the Code, which prohibited activities with respect to places kept or occupied for the purpose of prostitution, was subsequently struck down in 2013. These provisions infringed upon the rights guaranteed under Section 7 of the Charter by preventing them from hiring bodyguards, working at fixed locations, etc. This deprivation of personal security was contradictory to principles of fundamental justice because it was completely disproportionate to the purpose of avoiding public nuisance.

Weapon

The definition of ‘weapon’, stated under Section 2 of the Criminal Code, through this Bill has been amended to include anything used or intended to have been used for restraining another person against their will (for instance, using handcuffs, rope, duct tape, etc.). Therefore, a person who possesses a weapon with the intention of committing an offence [Section 88], assault with a weapon [Section 267], or sexually assaulting a person with a weapon under [Section 272].

Why does the Criminal Code of Canada criminalize prostitution 

The human body is not a commodity that can be purchased and sold. Prostitution provides paid access to female bodies for men, who are the primary purchasers of sexual services. By legalising and regulating blatantly gendered behaviour, the human dignity of all women and girls alike would be diminished. It has been recognised through various international studies that jurisdictions that have legalised or decriminalised prostitution have comparatively larger sex industries and higher rates of human trafficking for sexual exploitation than those that choose to not legalise it. Since the purpose of Bill C-36 was to alleviate the demand for and purchase of sex services from sex workers, prostitution is now deemed to be a criminal offence under Canadian Criminal Law. It is hoped that criminalizing the purchase of sexual services and making prostitution a crime would discourage people from seeking such services and safeguard vulnerable sex workers.

Critical analysis

A ray of hope was seen by sex workers across Canada when, through the landmark decision in the case of Canada (Attorney General) v Bedford (2013), three sections of Canada’s Criminal Code were found unconstitutional.  Many hoped this was a step towards decriminalising sex work in Canada. Instead, Bedford resulted in Bill C-36. With Bill C-36, the sex industry was promised improvement. But in the eyes of many, Bill C-36 fell short of fulfilling the same. The laws proposed in Bill-36 have criminalised the demand for and procurement or the purchase of sexual services. However, it has not entailed within itself a provision criminalising those who sell these sexual services. The goal of these proposed laws, which are closely aligned with the Swedish or “Nordic” model of sex work regulation, is to specifically target the consumers of sexual services. The foundation of this model is the idea that adult sex work is inherently harmful to women and ought to be banned. According to the model, this goal is accomplished by criminalizing only those who pay for sexual services, portraying sex workers as victims in need of assistance, and providing programming to help people leave and prevent them from entering the sex industry. 

Conclusion 

However, Bill C-36 acknowledges that achieving its transformational paradigm shift would require some time as altering social views can be a long-drawn-out process. As a result, the approach of the Bill acknowledges that some people may continue to be at risk of or exposed to exploitation through prostitution until this transformation occurs. Critics believe that the new law has resurrected the ideological ghosts of our nineteenth-century past. The bill has been criticised and it is alleged that it will make sex workers more vulnerable by changing the negotiating power of individuals who sell sexual services. Clients are likely to be more apprehensive if purchasing sexual services is a crime or an offence punishable, pushing transactions into dangerous locations. Since condoms can be used as evidence in court, many clients are afraid to wear them, and this causes potential health risks to both women and men. Sex workers are not allowed to legally work together or advertise their services. All of these reasons are pushing sex workers into more dangerously solitary situations on the street.

Frequently Asked Questions (FAQs) 

Is living with a person who sells their sexual services unlawful?

Unless the person living with another selling their sexual services, whether family members or roommates, exploits the person selling such services, the law does not prohibit or restrict such a family member or roommate from living with them.

Is stripping illegal? What about tipping strippers?

The act of stripping is not illegal in itself, and so is tipping them. Since the strippers perform as entertainers in strip clubs, tipping or paying them for private dances is perfectly legal. However, if one pays for sexual services in a private room in a strip club, the conduct becomes unlawful.

References 

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