Prostitution Law Reform in Canada

John Lowman, School of Criminology, Simon Fraser University To be published in an anthology celebrating the fiftieth anniversary of the Institute of Comparative Law in Japan, Chuo University. Edited by T. Shiibashi, forthcoming

This paper is a follow-up to an article on Canadian prostitution law published in the Comparative Law Review (Lowman, 1989a) that described the events leading up to the enactment in December 1985 of a new street prostitution control measure which prohibits communicating in a public place for the purpose of buying or selling sexual services.  The paper concluded that the communicating law did not have the salutary effect its designers promised because they misdiagnosed the problems they were trying to solve.

With an additional eight years experience of the communicating law since that paper was written, and with the experience of two other new laws    section 212(2), a separate offence for persons procuring or living on the avails of a person under 18 years of age; and section 212(4) which prohibits attempting to purchase or purchasing sex from persons under 18    this paper examines the way various interest groups have influenced prostitution law reform, and how those reforms have played out in law enforcement practice.  I suggest that far from resolving the dilemmas facing Canadian legislators in the 1980s, the communicating law has made street prostitution more dangerous, and made the hypocrisy underlying the Canadian approach to regulating prostitution all the more problematic.
 

Canadian Prostitution Law

In addition to the communicating law, “bawdy houses” are prohibited (Criminal Code sections 210 and 211), as are procuring and living on the avails of prostitution of another person (section 212). Procuring and living on the avails are indictable offences carrying terms of up to ten years in prison (and in the aces of a person under 18, up to 14 years in prison).  A common bawdy house is a place kept, occupied or used by at least one person for the purposes of prostitution or indecent acts.  “Keeping” a bawdy house (section 210(1)) is an indictable offence liable to up to two years in prison.  Being “found in” or an “inmate” of a bawdy house (Criminal Code sections 210(2) and 211) are summary offences carrying a maximum term of six months in prison and/or a $2000 fine (being a summary offence, the communicating law carries the same maximum penalties).

The living on the avails, procuring and bawdy house laws date back to Canada’s first criminal code, as did the vagrancy provision which prohibited street prostitution.  The vagrancy law was replaced in 1972 with the soliciting law which, in turn, was replaced by the communicating law.

While the activity proscribed by each law is relatively clear, the overall goal of Canadian prostitution law is not.  Apparently it is not prohibition, otherwise the buying and selling of sexual services as such would be prohibited.  However, the aforementioned criminal laws circumscribe prostitution in a way that makes it difficult to conceive how a person can prostitute without breaking the law.  The practical solution to this contradiction is that, as long as it is off the street, laws against prostitution are rarely enforced.  Indeed, most large municipalities facilitate the off-street trade by licensing and regulating it.  And yet the rhetoric of Canadian politicians about prostitution is almost entirely abolitionist.  The Canadian political solution to the problems created by prostitution has been to say one thing and do another.

The paper begins by briefly describing events leading up to the enactment of the communicating law, and then discusses attempts to control the prostitution industry since that time.
 

The Construction of the Canadian “Prostitution Problem”

Since Gusfield’s (1963) study of US alcohol prohibition and Becker’s (1963) recognition of the political role of “moral entrepreneurs” in such symbolic crusades many western sociologists have recognized that we cannot fully understand “social problems” without understanding how those problems are socially constructed, and by whom.  And so it is with the Canadian “prostitution problem.”

The “prostitution problem” as it was constructed in the early 1980s was not about prostitution as such, but the spread of the street trade.  The conventional wisdom held that a series of court decisions in the late 1970s emasculated the street prostitution law which made it an offence to “solicit any person in a public place for the purpose of prostitution.”  In the pivotal decision (R. v. Hutt [1978] 2 S.C.R. 476) the court ruled that “soliciting” involved “pressing and persistent” behaviour.  After this ruling, it was no longer possible to secure a conviction by establishing that a person had, in public, offered a sexual service for a price; rather, the Crown had to establish that, in so doing, the accused had effectively refused to take “no” for an answer.  According to the conventional wisdom, it was at this point that street prostitution spread because the police were no longer able to contain it.
 

The Fraser Committee

In 1983, the Special Committee on Pornography and Prostitution (the Fraser Committee) was established to review the situation, and make recommendations for law reform and other policy intiatives.  When it came to the problems associated with prostitution, the Fraser Comittee rejected the conventional wisdom.  Citing research which showed that the spread of street prostitution had occurred prior to the Hutt decision, the Fraser Committee (1985) concluded that it was not so much jurisprudence relating to the soliciting law that was the problem, as it was the contradictory and often self-defeating nature of the various criminal code sections relating to prostitution.

For example, the Committee recognized that some of the principle reasons for the spread of street prostitution in the mid and late 1970s was the action of Vancouver and Toronto police against the off-street prostitution trade.  It is debatable whether these incidents reflect a grand political design, but they do illustrate the way prostitution law often sews the seeds of its own demise.  The problem is, even though prostitution is legal, the law can be mobilised against it regardless of where it occurs.  In Vancouver in 1975, police investigations led to the closure of two cabarets clubs that were well known as places to meet prostitutes (Lowman, 1986).  One club mysteriously burned to the ground during a police investigation (the owner was charged with arson, but not convicted).  The liquor license of the other was revoked when the owners and several employees were charged with procuring and living on the avails of prostitution.  The license was not reinstated until six years later, after the BC Court of appeal overturned the convictions.  But the damage was done.  The dating activity that had occurred in these clubs and others like them spilled onto the streets.

In Toronto, the dynamics were different but the result the same.  In 1977 a shoe shine boy was sexually assaulted and murdered on Toronto’s Yonge Street strip.  In the ensuing furor over the sex industry that had long been a part of strip life, there was a clamp-down on massage parlors and other venues, with the obvious although apparently unanticipated result: more street prostitution.

From this and other analyses, the Fraser Committee concluded that the main problem with Canadian prostitution law is that it is at odds with itself.  If prostitution is to remain legal, the legislature must decide where it is to be permitted, and under what circumstances.  To this end, the Committee recommended that while laws against coercive pimps and tangible street nuisances be retained, up to two prostitutes should be allowed to work out of a single location (the so-called “cottage-industry” model of prostitution) and municipalities should be allowed to license small scale brothels.

The Progressive Conservative government of the day balked at wholesale prostitution law reform.  Instead, it bought into the “failure of the soliciting law” perspective, promoted mainly by police and resident’s groups, on what had gone wrong with prostitution law.  On December 20, 1985 the soliciting law was repealed, and the communicating law enacted.
 
 

The Federal Evaluation of the Communicating Law

The legislation introducing the communicating law included a provision for an evaluation of its impact, to be carried out within three years of its enactment.  The Department of Justice Canada commissioned five regional studies (Brannigan, et. al., 1989; Gemme, et. al., 1989; Graves, 1989; Lowman, 1989; Moyer and Carrington, 1989) to assess the impact of the law in Canada’s main cities (1),  the results of which were brought together in a synthesis report (Fleischman, 1989).  Unfortunately, in most sites the evaluation did not begin until after the law was enacted.  Consequently, researchers were unable to draw conclusions on the basis of comprehensive baseline data.

In 1990 the Standing Committee on Justice and the Solicitor General reported to parliament on the results of the three year review of the communicating law.  In Montreal, Quebec City, Niagara Falls, Ottawa and Halifax, the Committee noted (p.6), it appears there may have been a reduction of street prostitution.  However, in all of these sites, the research methods employed did not allow any conclusion to be drawn about how long this apparent effect might have lasted, and because of inadequate baseline data, the results are equivocal.  The Committee was not nearly so equivocal about the results of the evaluations elsewhere:

... despite vigorous law enforcement, considerable costs, and the near certainty of conviction, the incidence of street prostitution in Vancouver and Toronto was not reduced.  These two cities had expressed the greatest concern about street prostitution in the period preceding the enactment of the 1985 law reform (p.6).

Also, the research team working in Calgary, Winnipeg and Regina (Brannigan et. al., 1989) concluded that the new law had not resulted in a reduction in the number of street prostitutes in those cities.

In Vancouver, a census of street prostitutes and their clients conducted at various times over a three year period prior to the law’s enactment and eight years thereafter shows that it had only a short-lived impact on the number of prostitutes on the street (Figure 1).  In Vancouver since the communicating law was enacted, street prostitution has figured prominently in the local news, and at the time of writing (spring 1997) the actions of anti street prostitution activists are again making news.

 
In the process of conducting its review, the Standing Committee consulted city mayors, police officers and community groups about the impact of street prostitution on the neighborhoods in which it occurs.  Also, the Committee interviewed researchers about the results of the regional studies, and conducted a survey of services and programs available to prostitutes across Canada.

Police, municipal politicians and neighborhood representatives voiced a litany of complaints about the effects of street prostitution on residential neighborhoods (noise, traffic congestion, litter including condoms and needles, and harassment).  Almost without exception, these witnesses blamed the failure of the communicating law on what they perceive to be inadequate sentences.  One problem, they contended, was that because the communicating law is a summary offence, police are not empowered to fingerprint or photograph prostitutes (the Identification of Criminals Act restricts fingerprinting and photographing to indictable offences).  It is difficult to track repeat offenders across police jurisdictions, and even within a jurisdiction when prostitutes use false identities to conceal previous charges for communicating.  Consequently, judges do not necessarily know about the existence of previous offences, and so do not necessarily sentence accordingly.  To remedy this situation, the Canadian Association of Chiefs of Police and other police organizations called for minimum seven day prison sentences for repeat offenders, and the ability to fingerprint and photograph offenders.  However, given that recent statistics show that 39% of all females charged for communicating get prison sentences, with an average of 30 days per term (Duchesne, 1997, p. 10-11), it is doubtful that this more punitive approach would have the desired effect.

In the early 1980s, the opponents of street prostitution showed little compassion for the objects of their wrath.  But more recently, the view that prostitutes are victims has gained momentum, especially in police rhetoric.  Speaking of the witnesses who testified during the review, the Standing Committee commented:
 

While this perspective is generally borne out by Canadian research on street prostitution, it would be misleading to portray all street prostitutes one-sidedly as “victims” devoid of any power over their own lives.

While their choices may not be made in conditions of their own choosing, most persons who prostitute do make a choice.  Analytically, the key issue is how that choice is circumscribed in different situations.  There is a tendency to generalize what we know about street prostitutes to all prostitutes, and to view street prostitution as a monolithic entity.  The Canadian contact sex service trade    that which is usually referred to as “prostitution”    ranges from female sexual slavery (the gorilla pimp) and survival sex (sale of sexual services by persons with very few other options, such as homeless youth and women in poverty) through to more bourgeois styles of sex trade (including some street prostitution) where both adults are consenting, albeit it in a way that is shaped by their gender, occupation, ethnicity, socio-economic status and cultural values.

Like most political rhetoric about prostitution, the Standing Committee’s report was not sensitive to these differences, which need to be taken into account in the process of reforming    or getting rid of    prostitution law.  The Standing Committee report is compromised by it’s mandate to examine street prostitution and the communicating law without considering the broader prostitution trade and the law pertaining to it    precisely the approach that the Fraser Committee cautioned against when it recommended partial decriminalization of prostitution.

In light of its review of the communicating law, the Standing Committee made three recommendations:

1) that the departments responsible for justice, health and welfare, and employment, at all levels of government, develop programs to provide start-up and core funding to community-based agencies providing integrated, holistic programs accessible to male and female prostitutes wishing to leave the street solicitation trade and responsive to their needs.

2) that the Identification of Criminals Act be allowed for the finger-printing and photographing of those charged [for communicating] whether as prostitutes or as customers.

3) that [the communicating law] be amended to provide sentencing judges with the discretion to prohibit persons convicted of street solicitation (2)  involving a motor vehicle, in addition to any other penalty imposed, from driving a motor vehicle for a period not to exceed three months.

The federal government, which has exclusive control of criminal law in Canada, ignored recommendations (2) and (3), and not much has been done by other levels of government to establish holistic integrated programs for prostitutes.  Also note that the recommended social programs involve strategies of bargain-help: prostitutes can get help, but only on the condition they are exiting prostitution.  Like nearly all Canadian political rhetoric on prostitution, the recommendation is abolitionist at heart, because it does not countenance harm reduction programs, or any other kind of service for prostitutes, even though prostitution is legal.
 

The Communicating Law and the Canadian Charter of Rights Freedoms

After its hearings from October through December 1989 the Standing Committee suspended its deliberations pending the outcome of the Supreme Court of Canada’s decision on three appellate court cases (3)  involving arguments that the communicating law    and in one of the cases the bawdy house law as well    violates the right of freedom of expression and freedom of association as guaranteed by the Canadian Charter of Rights (sections 2b and 2d).  On May 31, 1990, with both female judges dissenting, three male judges upheld the law, reasoning that although the communicating law contravened the right to free expression, it is justified on the basis of section 1 of the Charter which holds that a “reasonable” limit as prescribed by law can be put on a protected right.  In this case, the majority ruled that, because of the pressing nature of the public nuisance it is designed to curb, the communicating law is a reasonable limit to the right of free speech.

One noteworthy feature of this judgment is that it was rendered prior to the release of the Standing Committee’s report about the (lack of) impact of the communicating law.  In judging whether a limit to a right is “reasonable” a test is applied,(4)  one component of which relates to the balance between the salutary and deleterious effects of the law.  If a law does not meet its objectives, and/or if its deleterious effects outweigh its benefits, then it may not be a reasonable limit of a right.(5)   Given that the communicating law has not reduced street prostitution in cities like Toronto and Vancouver    indeed, it may have made it more dangerous is it a reasonable limit of the right of free expression?  With the benefit of the empirical record placed before the Standing Committee, one can only wonder if the Supreme Court would have reached the same conclusion.

These speculations aside, the reasoning of the Supreme Court decision is notable for its comments about the contradictory nature of Canadian prostitution law.  Jurisprudence from the US indicates that if too vague, a law violates principles of due process.  When taken separately, the Canadian Supreme Court Justices had no difficulty in arguing that the communicating law and bawdy house law are clear as to what they prohibit.  But when taken together, the two laws seem to contradict each other.  As prostitution is legal, the purpose of the communicating law must be to keep prostitution off the street, not curtail prostitution itself.  However, the bawdy house law makes it virtually impossible to practice prostitution off the street.  The contradiction begs the question: where should prostitutes and customers meet to arrange what is, after all, a legal transaction?  And where should the services be rendered?  Of course, these kinds of questions cannot be answered by the Supreme Court.  That is a job for legislators.
 
 

Prostitution Law Enforcement Since the Enactment of the Communicating Law

Charge rates for offences related to prostitution remained fairly constant from 1986 through 1992, with roughly 8000 to 10000 charges per year.  There were fewer charges from 1993 through 1995 as a result of a reduction of the number of communicating charges in Toronto, Edmonton and Calgary in 1994, and Vancouver in 1993 and 1995.

Of the roughly 6000 to 10,000 prostitution charges a year from 1986 to 1995, 92% were for communicating, 5% involved procuring and living on the avails of prostitution, and 3% involved bawdy house offences (Duchesne, 1997).  In terms of the number of charges laid overall in Canada, the large proportion of communicating charges suggest that public propriety and property values heavily outweigh all other considerations.  However, there have been some important shifts in the rhetoric surrounding prostitution and in law enforcement practice.
 
 

The Communicating Law

Under the soliciting law, although the British Columbia and Ontario courts reached opposite conclusions as to whether a customer could be charged,(6)  the more important point is that police, apart from a handful of charges, enforced the law only against prostitutes.  Before the contradictory decisions could be resolved by a higher court, the soliciting law was repealed, and the communicating law enacted, thereby explicitly prohibiting public offers to purchase sexual services as well as offers to provide them.

Initially there was considerable variation across Canada in the ratio of charges of prostitutes and clients.  For example, in 1986 and 1987, of the 2180 charges laid in Vancouver, 76% involved prostitutes, and in Montreal of 3956 charges, 65% involved prostitutes.  However, in Toronto the proportions were much closer to parity, where only 55% of the 5368 charges involved prostitutes (Fleischman, 1989:41).(7)

In the 1990s, some important changes have occurred, and there can be no doubt that more of an effort is being made to prosecute would-be customers.  Unfortunately, the Uniform Crime Reports do not distinguish charges against buyers and sellers.  On the basis of data on the gender of persons charged, commentators writing on behalf of the Canadian Center of Justice Statistics have claimed that “police are charging prostitutes and customers in close to equal numbers” (Wolff and Geissel, 1993; also see Duchesne, 1997, p.6).  However, some of the males charged were not customers, but transvestite or transgendered persons (8) selling sex, or young “hustlers” (males who dress as males when selling sex).  We are not aware of any case of a woman being charged for offering to buy sexual services.  Consequently, the discrepancy in charge rates is greater than the gender proportions suggest.  Nevertheless, this is a very different picture from the days of the soliciting law, and the earlier vagrancy law, when customers could buy sex on the street with impunity.
 

The Sexual Procurement of Children and Youths

In January 1988, two new offences were introduced in an attempt to combat the sexual procurement of youth and children:

Section 212(2) is a separate offence for persons procuring or living on the avails of a person under 18 years of age.  While procuring and living on the avails have long been criminal offences in Canada, the purpose of this section is to raise the maximum prison term from ten to fourteen years for persons exploiting youths.
Section 212(4) which prohibits attempting to purchase or purchasing sex from persons under 18.

Unfortunately, it is not possible to ascertain from the Uniform Crime Reports how many charges are laid under these two new sections, because the three categories of offence provided (procuring, bawdy house and communicating) do not distinguish the number of charges under each subsection.  Nevertheless, it is possible to examine the number of charges in specific jurisdictions, and for certain years.
 

Prohibiting the Purchase of Sex From Children and Youth

Every person who, in any place, obtains or attempts to obtain, for sexual consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and is liable to a term of imprisonment for a term not exceeding five years.

In 1984, from a public opinion survey conducted by Peat Marwick, it was estimated that roughly 90% of Canadians agreed that purchasing or offering to purchase sexual services from a youth should be a criminal offence.(9)   After conducting extensive research on prostitution, the Committee on Sexual Offences Against Children and Youth (the Badgley Committee, 1984) and the Special Committee on Pornography and Prostitution (the Fraser Committee, 1985) both recommended that obtaining or attempting to obtain for consideration the sexual services of a youth should be criminalized.  The Canadian legislature acted upon these recommendations, and on January 1, 1988 section 212(4) came into force.

This child saving rhetoric is in keeping with a movement washing across many parts of the world to combat traffic in women and children, and particularly the sexual exploitation of children.  In 1996 the Swedish government, in cooperation with other government and non-government groups, sponsored the World Congress on the Commercial Sexual Exploitation of Children.  The conference aimed to increase international co-operation and harmonise legislation, and occasioned international media attention.  That same month, Canada’s national newspaper, the Globe and Mail, published a special series on the child sex trade around the world.  Another series appeared in The Christian Science Monitor,(10)  a call to arms to “battle the scourge” of the child sex trade.  Toward this end, several countries (11)  have criminalized their nationals who sexually procure children abroad, and a bill is currently before the Canadian parliament to do the same.  However, evidentiary and other difficulties make laws on sex tourism difficult to enforce, a “toothless tiger” according to one commentator (Freeman, 1996).

Against this backdrop, how has the new law prohibiting sexual procurement of children within Canada fared?
 

Enforcement of s.212(4) compared to s.213 (the communicating law)

While the law prohibiting sexual procurement of youth apparently has wide public support, in practice, it is rarely enforced.  For example, 1994 data for Newfoundland, Prince Edward Island, Nova Scotia, Quebec, Saskatchewan, Yukon and the North West Territories show that there were 57 charges in Quebec, 15 in Saskatchewan, and none in the other five jurisdictions (Daum, 1997).  Out of a total of 72 charges, 31 were stayed or withdrawn, and 29 convictions were obtained.  Turning to Vancouver data, we find that during the first seven years of its existence (1988 through 1994), there were just six charges for offering to purchase the sexual services of a youth, and only two convictions (Clark, 1996).  Compare this to the enforcement of the communicating law.  During its first six years, 7409 charges were laid in Vancouver.

The general consensus of police and Crown sources is that the law prohibiting sexual procurement of youth is difficult to enforce because, to achieve a conviction, a youth who has been propositioned would have to testify against the accused (Federal-Provincial-Territorial Working Group on Prostitution, 1995; Lowman and Fraser, 1996: 105-6; Daum, 1997).  Youths are reluctant to do this, so the argument goes, because they would not want to alienate their potential source of income, or they might be too intimidated by the process of having to appear in court.

While there are, no doubt, difficulties in enforcing s.212(4), it is what the police and, in turn, the media make of these difficulties that is noteworthy.  From 1978 to 1985, when police authorities across Canada experienced problems with the “soliciting law,” they were very vocal in lobbying for law reform so that they could more easily obtain convictions.  They’ve mounted no such campaign on behalf of section 212(4).  In this regard, they are something of a litmus paper for the rest of society.  In Canada, prostitution law enforcement tends to be complaint driven.  The complaints are predominantly about presence of street prostitution.  Until 1994 in Vancouver, not much public concern was expressed about the sexual procurement of youth.  Again a comparison of s.212(4) and s.213 is revealing, this time in terms of the number of times the two laws were mentioned in newspapers.

During the two years after the communicating law was enacted, a total of 254 Vancouver Sun articles talked about prostitution, of which 86 discussed the communicating law. These included on-going stories about how many charges had been laid, and speculation about why the law was not working.  The news coverage of the law prohibiting sexual procurement of youth provides a stark contrast, given that it, too, is not working.  From 1986 to 1993, of the 926 Vancouver Sun articles that mentioned prostitution, only six mentioned the procurement of youth law, and three of these were stories about the government’s more general legislative package, of which it was but a part.  The other three articles talk about enforcement of the law, two of which reported the charging of a Quebec politician.  The remaining article talked about problems Vancouver police were experiencing with the new law, the only article prior to 1994 to do so.

There are signs that priorities are changing.  There has been some lobbying by social service agencies in Vancouver for police to make a more concerted effort to enforce the sexual procurement of youth law (Clayton, 1996a; Daum 1996, 1997).  Bill C-27, which would change the way the law is worded, is headed towards its third and final reading in the House of Commons.  However, there is still debate about whether the amendments would be effective (BC Ministry of Attorney General, 1996; Daum, 1997).  As part of a community consultation on prostitution, the Province of British Columbia in 1996 formed the Provincial Prostitution Unit with the express intention of taking a tougher approach to persons involved in exploitation and victimization of sexually procured youth, and to raise public awareness about such matters.  Alberta recently released the report of its Task Force on Children Involved in Prostitution  (Forsyth Committee, 1997).  Also the Federation of Canadian Municipalities (1993b) and the Federal-Provincial-Territorial Working Group on Prostitution (1995) have examined these issues in detail.  All are agreed that a much more concerted effort needs to be made to prevent and discourage the sexual procurement of children and youth.
 
 

Bawdy House, Procuring and Living on the Avails Prosecutions

One other notable trend in the recent discourse on prostitution is the re-emergence of the pimp as the most loathed player in the prostitution business.  Figure 2 shows the number of bawdy house and procuring offences from 1977 to 1995 in Canada as a whole.  There are two clear trends.  Canadian police are paying progressively less and less attention to bawdy house violations and off-street prostitution in general, and relatively more to prosecuting men for procuring and living on the avails of street prostitutes.  

Unfortunately, it is not possible to discern from the published Uniform Crime Reports (UCRs) the number of charges for the different categories of procuring offences (section 212 has twelve subsections, including “living on the avails of prostitution”).  Also, in the cases where an accused is charged with more than one offence (most of the pimping cases involve multiple charges) the UCRs record only the most serious charge.  However, in Vancouver most of the procuring and living on the avails prosecutions relate to street prostitution, not to the apparently burgeoning off-street prostitution trade in body rub parlours, which violate bawdy house and procuring laws (and may violate the living on the avails law), and escort services which violate procuring laws (and may violate living on the avails and bawdy house laws as well).  There appears to be a tacit understanding that off-street prostitution is to be left alone.  For example, Vancouver vice officers say that they do not investigate these establishments unless they receive specific complaints about them.

The UCRs show that from 1977 to 1985, there was an average of 158 procuring charges a year as compared to an average of 385 charges per annum between 1986 and 1995.  The increase is part of a deliberate policy change by many police departments, such as Calgary, Toronto, Vancouver and Halifax to make a more concerted effort to prosecute “pimps” (street level managers) particularly those who sexually exploit youth (Clayton, 1996b; Jessome, 1997).

A study of prosecutions for living on the avails and procuring from Vancouver Police Department Vice Intelligence Unit files on “pimps” for the period 1981-1993 found that, between 1981 and 1987, only twelve people were charged with procuring and living on the avails of prostitution (Lowman and Fraser, 1996).  There is a marked increase after 1989.  Five people identified as pimps and their associates (usually another woman working for the man) were charged in 1989, 25 in 1990, 16 in 1991, 15 in 1992, and 54 in 1993, although not all of these cases involved living on the avails and procuring offences (some of the charges were for assaults, weapons offences, threats, forcible confinement, and so on).  From 1989-1993 there was a total of 84 cases in which 115 people were charged (96 males and 19 females).  Seventy-three cases involved procuring and/or living on the avails charges.  34% of persons charged were accused of living on the avails of a youth, and 51% of the accused for whom we have this information (n=104) were charged with an offence relating to a youth.  The 115 accused were charged with a total of 205 prostitution and 99 other offences.

The offences related mostly to street prostitutes (some of whom also worked for escort services).  There was obviously no attempt to charge the operators of escort services or body rub parlours for procuring or bawdy house offences even though both police and Crown are well aware of the offences being committed.

It remains to be determined in other parts of Canada how many charges have been laid under section 212(2), which provides longer sentences for men procuring and living on the avails of youths.  The Canadian Centre for Justice Statistics Adult Criminal Court Survey covering Newfoundland, Prince Edward Island, Nova Scotia, Quebec, Saskatchewan, Yukon and the Northwest Territories shows that there were but 8 charges under s.212(2) in 1994, as compared to 56 charges for procuring and 64 for living on the avails of adults (Daum, 1997).
 
 

The Mixed Messages of Canadian Prostitution Law: The “john” as folk devil.

We have already seen that one purpose of the communicating law was to hold customers as well as prostitutes accountable for street prostitution, and to this extent it has been a “success.”  Indeed, in February 1997 the Vancouver police announced that they no longer intend to arrest prostitutes for communicating under section 213, except if they are working near schools and other sensitive locations, or to protect young persons.  Instead, they plan to concentrate communicating law enforcement against clients.  Vancouver’s is the first and only Canadian police force to take this approach.  The press release announcing the policy reasoned that:

The root cause of Vancouver’s street prostitution trade is the men who purchase or who recruit and control (pimp) juvenile or adult sex workers.  Our limited resources are focussed on pimps and “johns” and other abusers ... If we can reduce the demand, the supply will decrease

“Going after pimps and customers will be more effective in reducing street prostitution,” a Police Inspector said.  “The change shows officers now recognize sex workers are actually victims and police resources are better spent pursuing johns and pimps.  In the past, prostitutes have been penalized, jailed, fined and shifted from neighborhood to neighborhood, but no concentrated effort was made to go after the customers, and we firmly believe that these men are predators.”  Vancouver’s Mayor, Philip Owen, agreed: “I think the whole thing is to rescue the women” (Pemberton, 1997).
 
 

“John School”

While other municipalities across Canada have not followed Vancouver’s lead by relaxing law enforcement against street prostitutes, the moral boot has shifted to the other foot with the establishment of so-called “john schools” in Edmonton, Ottawa and Toronto.  In the latter part of the twentieth century, this trend to “hold men accountable for prostitution” can be traced back to the late nineteenth and early twentieth century moral crusades, the crucible in which Canadian prostitution law was formed.  In the post World War 2 period, this rhetoric re-emerged with the development of “Shame the Johns” groups protesting street prostitution, the first of which appeared in the West End of Vancouver in 1984.  Other examples of this moral sentiment include attempts by police    most recently in Abbotsford, British Columbia (July 1997)    to deter would-be clients by publishing in local newspapers the names of all the men charged with communicating.

The rhetoric surrounding these developments nicely reveals the Canadian political doublespeak about prostitution, both in terms of the reason given for why we need “john school” and the curriculum itself.

Advocates usually justify “john school” by saying that we need, “a more effective way of dealing with johns [because they] are getting absolute discharges, which infuriates people” (Bula, 1996).  But is there any justification for this fury?  From 1986 to 1992 in Vancouver, 2045 males were charged with communicating.  There were 44 repeat offenders, a rate of just two percent.  When it comes to individual deterrence, where is the evidence that more severe sentences are needed?  Apparently, the mere fact of being charged is deterrence enough, especially as these men can turn to one of the municipally licensed escort services or body rub parlours to buy sex, albeit it at a much higher price    instead of returning to the street.  When it comes to general deterrence, there is no evidence that “john school,” a diversion program, would be more effective than the court process.

Then there is the curriculum of john school.  Take the Edmonton “john school,” for example.  Like its other Canadian counterparts, the Edmonton School is a diversion program for men charged with communicating.  They can elect either to attend the “school,” in which case the charge against them is withdrawn, or they can proceed to court.  The one day curriculum includes lectures from: a) health department officials talking about the dangers of sexually transmitted diseases; b) community activists talking about the havoc caused by street prostitution in residential neighborhoods; c) parents talking about the impact their daughters’ prostitution has on their family life; d) former prostitutes talking about the shame they feel for having been involved in prostitution; and e) a forensic psychologist telling johns what steps they can take in the future to avoid buying sex from prostitutes (Smith, 1996).

As both the parliamentary debate leading up to the enactment of the law and the Supreme Court decision upholding it make clear, the purpose of the communicating law is to control the nuisances associated with street prostitution, not to prohibit prostitution itself.  By extending the “education” beyond nuisance “john school” imposes on its conscript clientele a moral position that the law does not contain.  It’s advocates conveniently forget that buying and selling sexual services are both legal in Canada.  To be consistent with the law, the program should be called “nuisance school” and provide the same education about nuisance to prostitutes and clients alike (part of which might well be about where prostitutes and clients should meet in order to avoid creating a nuisance).  By introducing epidemiological concerns, topics like drug-dealing, and the effects of prostitution on the prostitute and her family, john school is a morality play on prostitution, not nuisance.  The conspicuous hypocrisy is that many of the same politicians sit on city councils that regulate the off-street prostitution trade by licensing and regulating body rub parlours, which are thinly disguised brothels, and escort services which, according to police, prostitutes and clients,  are prostitution procurement agencies.
 

State Manager (“business person”) versus Street Manager (“pimp”): Cornering the Market on Prostitution

There can be no doubt that the image of pimping as a form of sexual slavery does fit a certain segment of the street prostitution trade (see e.g. Jessome, 1997).  But having said this, it should also be recognized that there is considerable amount of terminological slippage in rhetoric about the people who manage prostitution.  Because the term “pimp” does not appear in the criminal code, he is socially constructed in a manner that leaves much confusion about the way prostitution is organized.  The law prohibits various kinds of “procuring,” including procuring or attempting to procure a person to become a prostitute (s.212(1)(d)).  Also, one cannot, for the “purpose of gain,” exercise “control, direction or influence over the movements of a person in such a manner as to show he is aiding, abetting or compelling that person to engage in or carry on in prostitution” (s.212(1)(h)).  Although they claim only to introduce men and women to each other, escort service operators have been convicted of procuring, and what little research there is on escort services (12) suggests that agency records could be used to establish that they aid and abet prostitution.  However, across Canada, there is a tacit policy to turn a blind eye to escort services and body rub parlours.

The law also prohibits living wholly or in part on the avails of the prostitution of another person (s.212(1)(j)).  Moreover, “Evidence that a person lives with or is habitually in the company of a prostitute, or lives in a common bawdy house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution (s.212(3)).  Some commentators have interpreted these sections as prohibiting a prostitute from sharing money with anyone, including a husband, lover or a child (Lowman, 1986, Highcrest, 1997).  However, case law (13)  requires that the relationship be “parasitic:”

Living on the avails is directed at the idle parasite who reaps the benefit of prostitution without any legal or moral claim to support from the person who happens to be a prostitute (Madame Justice Arbour (14) )

Even if it can be established that a person cohabits with a prostitute, that is not sufficient to obtain a conviction.  One effect of this jurisprudence has been to encourage police to pursue street level managers, especially those who use coercive strategies and directly exercise control over women and youths selling sex.  The “pimp” has been selected out as the black-market renegade who lives on the avails of a street prostitute.  Meanwhile, enforcement of the procuring laws against municipal license-holding managers has been almost completely relaxed.

If we put these various law enforcement patterns together, we see that almost the entire police law enforcement effort is aimed at street prostitution.  A two tier sex trade has emerged, with a licensed off-street trade, and black-market street trade.  At the very same time they point their moral finger at the mostly blue-collar men (15) who are charged with communicating, license fees paid by escort and body rub operators to the municipalities, and the Federal and provincial governments take their requisite tax cuts.  Stripped of its rhetoric, the criminal justice system has actively intervened in the marketplace.  The unintended consequence is a pattern of law enforcement that allows the municipalities and the entrepreneurs who pay their license fees to corner the sex trade market, and exact higher prices in the process.  The male consumers who can afford the higher prices are allowed to buy sex without fear of prosecution or exposure.  And as long as they work in one of the licensed off-street venues, people are allowed to prostitute.  Also, people who are able to afford the advertisements and have a stable enough living situation, can work privately on a self-employed basis, and run a bawdy house which, although it is illegal, will not be prosecuted.  These bourgeois styles of prostitution are accepted and flourish.

But if the person selling sex is homeless, or drug dependent, or if they do not fit the cultural stereotypes of the “salable” women who work in the off-street prostitution trade    in which case, the only place that they can make any money is on the street    the full weight of the criminal justice system is brought to bear against them.

Through all this the street prostitution trade forms an important ideological function.  It provides a platform for politicians and other moral entrepreneurs to loudly denounce prostitution, and give the impression that government policy is driven by an abolitionist sentiment, and sustained resistance to the male exploitation of women and youth.  The Canadian Association of Chiefs of Police has opposed legalizing prostitution, apparently not realizing that it is already legal.  The full force of this hypocrisy is realized in the political doublespeak of commentators who refuse to acknowledge the role already being played by the Canadian state and the police in the prostitution trade.  For example, Alberta’s Task Force on Children Involved in Prostitution (the Forsyth Report):

flatly rejects the idea of a ‘red-light zone’ where prostitutes would be allowed to work.  Any move toward ‘legalizing’ or regulating prostitution would give tacit support to youth becoming involved in prostitution.  (Mitchell, 1996)

According to this logic, Canadian politicians already support prostitution    why else is the municipally licensed off-street prostitution trade flourishing everywhere in Alberta and elsewhere in Canada?  Over the past twenty years there has been a steady growth of the sex trade, especially of municipally licensed “exotic dance” establishments (strip bars), in just about every city across the country.  In the face of these developments, it is hardly surprising that the prostitution industry is growing given the way municipal licensing authorities have facilitated and organized the demand.  Indeed, twenty years ago, there were no escort services in Canada, but since then they have grown to constitute probably the most lucrative component of the prostitution trade.  The telephone Yellow Pages of almost every medium and large Canadian municipality contains pages of escort service advertisements (75 services are advertised in the Vancouver directory this year), and local newspapers and specialty adult magazines contain numerous escort service and body rub parlour ads, as well as “businesses personal” columns with ads run by free lance and some pimped prostitutes working out of their own apartments or on an out-call basis.

Where do all these developments figure in the argument that programs like “john school” make men accountable for prostitution?  What about the effects of prostitution on the women working in the off-street prostitution trade?  What about the health, employment status and safety of these women?  One sees the hypocrisy played out over and over again as state agencies promote a noble and well-intentioned rhetoric about protecting women and children from (street) “pimps” and “johns.”  But in this anti-prostitution rhetoric, nothing is said about the recruitment ads run by the municipally licensed prostitution businesses in the telephone Yellow Pages and local newspapers, which find their way into almost every home in Canada (the street pimps should be so lucky!).
 
 

The Price of Political Doublespeak

Despite their involvement in prostitution, politicians railing against the street trade refuse to talk about where prostitutes should meet their customers.  In 1995, the Vancouver Council refused to countenance the idea of establishing a “safe stroll” for street prostitutes because it did not want to be seen to condone prostitution.  The price of this hypocrisy is that we are unable to tackle directly the problems faced by people who refuse to work for, or cannot work for state licensed off-street prostitution venues.  In this respect, consider the reasons Vancouver Council was asked to consider the idea of establishing a safe stroll: a spate of murders.
 
 

Violence Against Street Prostitutes

When the Department of Justice Canada commissioned background research for the review of the communicating law, one of the questions posed concerned the impact of the new law on the safety of prostitutes.  Although accurate information about levels of violence against prostitutes is difficult to obtain, it had already become apparent in Vancouver at the time the evaluation was being conducted in 1987 and 1988 that a large number of prostitutes had been murdered in the previous three years (Lowman, 1989, p. 132-134).  Then in 1991 the “Revised Homicide Survey” administered by the Canadian Centre for Justice Statistics included information about the known occupation of victims.  In 1991 and 1992, 22 known prostitutes were murdered, representing 5% of all female murder victims aged 16 and over (Wolff and Geissel, 1993, p. 11).  From 1993 to 1995, another 41 known prostitutes were murdered (Duchesne, 1997, pp. 8-9).  Of the 63 prostitutes murdered from 1991 to 1995, 60 were female, seven of whom were under eighteen years of age.  Fifty of the women were thought to have been killed by men who introduced themselves as clients, and eight by pimps or in a drug related incident.  If we remove the women who were murdered by a spouse or an ex-spouse from the homicide statistics    which from 1981 to 1990 amounted to 48% of all female homicide victims (Trevethan and Samagh, 1992, p. 13)    we find that one in ten of the remaining female murder victims was a known prostitute.

In 1994 the Department of Justice Canada commissioned a series of studies of violence against prostitutes (Brannigan 1996; Fleischman, 1996; La boîte à qu’on-se-voir, 1996; Lowman and Fraser, 1996).  In one of these studies we used a combination of Vancouver Police Department files, Royal Canadian Mounted Police data and newspaper reports to construct a profile of murders of prostitutes in British Columbia prior to and after the enactment of the communicating law (Lowman and Fraser, 1996; also see Gordon, 1996).  In the discussion that follows we examine prostitution news themes and murder rates to speculate about the impact of the communicating law on violence against prostitutes.
 
 

Violence and the Discourse of Disposal

The number of articles mentioning prostitution in the Vancouver Sun increased appreciably after 1975, again after 1980, and then again after 1984 (Figure 3).(16)  

A large increase in the number of articles mentioning violence occurred in 1985 (Figure 4) a reflection of a large increase in murders of prostitutes in British Columbia (Figure 5).      

Analysis of the ebb and flow of prostitution news themes in the Vancouver Sun reveals that from 1981 to about 1985 most of the talk was about the nuisance being created by street prostitution, and how the soliciting law, paralyzed by jurisprudence, needed to be replaced with an enforceable law so that prostitution could be swept from the streets.  The communicating law was enacted in 1985, but as we have already seen, it turned out to be more nostrum than cure.  In Vancouver it took less than a year before neighborhood groups in residential Mount Pleasant were protesting the failure of the new law.  Various police authorities and neighborhood groups called for stronger penalties.  Certain neighborhood group spokespersons characterized street-connected women and anyone associated with them as “scumbags” and “sleazeballs.”  In one instance, an oft-quoted Mount Pleasant activist wrote an open letter to movie star Clint Eastwood, “on behalf of the community of Mount Pleasant which has been invaded by street prostitutes and other criminals.”  Eastwood is well known for his film roles depicting police officers with a no-nonsense attitude to crime fighting.  The letter exhorted Eastwood, then Mayor of Carmel, California, to run for Mayor in Vancouver: “Talent such as yours is in great demand.  Due to conditions here in Mount Pleasant, your election would be certain.”  The letter concluded, “PS Bring your gun.” (Agg, S. 1986)

Using RCMP and Vancouver police data to supplement the murders reported in two local newspapers, we have constructed a profile of the number of murders in British Columbia from 1964 through 1995 (note, Figure 4 shows only the murders reported in newspapers).  For the period 1964 through 1974 there is no record of the murder of a prostitute in BC.  There is one in 1975, and then twelve from 1978 through 1984.  Then in 1985 there are four, and from 1986 through 1995, there were 49 (roughly five a year).  When it comes to violence in the sex trade, the murders represent the extreme end of a continuum.  Although it is not possible to ascertain if assaults, sexual assaults and robberies of street prostitutes have also increased, self-report surveys suggest that crime victimization is an all too regular hazard of prostitution, and that women working the street are much more vulnerable to crime victimization than escorts and body rub workers.  Of 50 prostitute murder cases reported in the Vancouver Sun and Province from 1975 to 1994, 80% of the victims were identified as street prostitutes (Lowman and Fraser, 1996, p. 13).

We can only speculate about how the discourse on street prostitution of the late 1970s early 1980s    NIMBYism (not in my back yard-ism; Highcrest, 1997, pp. 203-224)    created a social milieu in which violence against prostitutes could flourish.  In the context of this discourse of disposal, customers of street prostitutes no doubt found it easier to justify a violent resolution to any conflict that might occur during the course of a transaction.  Also, the increasing physical and symbolic marginalization of street prostitutes makes them easier targets for sex offenders and misogynist predators.  The symbolic marginalization of prostitutes already written deeply in our culture was translated in the early 1980s into a rights discourse    the right to be protected from criminal nuisance.  The symbolic marginalization of the street prostitute was completed with the enactment of the communicating law.  Their physical marginalization occurred as police used the communicating law in combination with other harassment tactics to displace prostitutes out of residential areas into darkly lit industrial back streets.  While this urban triage helps quell complaints from residents, it makes prostitutes easier targets for premeditated attack by sexual predators.  By consolidating the criminal status of street prostitution and the subculture associated with it, the communicating law forced street prostitutes into an increasingly adversarial relationship with police.  Now, as “outlaws,” they are less likely to report crimes against them, and have all the more reason to turn to pimps for protection and affection.
 
 

Where to Next?

There is a substantial prostitution trade flourishing in every city in Canada, regulated by municipal licensing laws, and facilitated by the selective enforcement of the criminal statutes.  At the same time various levels of government continue to set up committees, commissions and working groups trying to figure out what to do about street prostitution and the sexual procurement of youth.  In 1992 several provinces teamed up with the Federal Government to form the Federal-Provincial-Territorial Working Group on prostitution (1995).  The Working Group presented an Interim Report in October 1995 which discusses a series of options for prostitution law reform and various social intervention options, and will present its final report in 1997.  In 1993 the Canadian Federation of Municipalities took up the issue of prostitution under its Urban Safety and Crime Prevention Program, and sponsored a National Meeting on Prostitution in Canada (Fed. of Canadian Municipalities 1993a,b,c).  The Big City Mayors’ Caucus has also deliberated prostitution related issues.  In addition to these initiatives there have been numerous municipal level and provincial committees and reports all trying to work out what to do about the sexual procurement of youth and/or the street trade.

Underwriting almost every one of these state projects is an abolitionist stance    “we cannot be seen to condone prostitution.”  But the burgeoning licensed sex trade in Canada tells a different story.  The Canadian state is not doing what it is saying.

We urgently need to cut through the political hypocrisy and work out what prostitution policy is trying to accomplish.  In the long term, we should set about eradicating the conditions that produce prostitution as we know it.  These conditions include stigmatization of sex sellers, systemic racism and sexism, labour market structures, sexual exploitation of children, drug prohibition, and so on.  In the short term, we need to create choices for people who see prostitution as their only option for making a living, and develop programs of harm reduction for those who are involved.  We should repeal all the prostitution laws, and start over.  Four principles should guide the application of law to prostitution:  1) regard sexual procurement of children and youth as an abuse of power, not a prostitution contract; 2) use generic criminal laws to protect sex sellers from pimp coercion and customer violence; 3) facilitate systems of sex-seller self-employment, cooperatives, or non-profit management systems in appropriate locations; and 4) use generic criminal public disturbance laws and generic civil laws controlling street commerce to protect bystanders from nuisance.

As long as prostitution is legal    and there is every reason to believe that criminalization would only make matters worse    Canadian politicians ought to decide where and under what circumstance prostitutes can meet their customers.  In this respect they would do well to follow the Toronto City Council’s lead, based on the report by the city’s Board of Health (City of Toronto Board of Health 1995), and lobby the Federal Minister of Justice to decriminalize adult prostitution (18 years and over) and open up a debate about what kind of regulation, if any, would enable prostitutes to take more control over their own lives.  That way we also might help reduce the nuisances associated with street prostitution so that we can get on with the more important business of harm prevention and harm reduction by funding the social service, economic, education and other programs that might really make a difference.

 
 

Footnotes

1. The five main sites were Toronto, Montreal, Vancouver, Halifax and Calgary; there were eight subsidiary sites, including Winnipeg, Saint John, Troi-Rivieres, Quebec City, Ottawa, Niagara Falls and London.
2.  It is surprising that the Committee used this archaic wording since the term “solicit” had been deliberately excised from the communicating law.
3.  R. v Skinner ((1987), 35 C.C.C. (3d) 203, 58 C.R. (3d)  137, 79 N.S.R. (2d) 8; overd); Stagnitta (1987), 36 C.C.C. (3d) 105, 43 D.L.R. (4th) 111, 58 C.R. (3d) 164 (Alta. C.A.) and Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code. 56 C.C.C. (3d).
4.  In this case, the Oakes “proportionality test” (R. v. Oakes (1986) 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200 {1986] 1 S.C.R. 103).
5.  Tony Managh, personal communication.
6.  In R. v. Dudak (1978) , 41 C.C.C. (2d) 31 (B.C.A.A.) a British Columbia court ruled that the soliciting law did not apply to a customer, whereas in R. v. Di Paola (1978), 4 C.R. (3d) 121 (Ont. C.A.) an Ontario Court ruled that it did.
7.  For a discussion of arguments about how “equal treatment” of prostitutes and clients should be conceptualized, see Lowman (1990b).
8.  In Vancouver, transgenders are recorded as males up to the point they have completed a full sex change.
9.  Gerald Hannon, an English Professor at Ryerson College in Toronto, occasioned a media furor with his philosophical defence of adult sex with children.  As well as teaching English, he also moonlighted as a prostitute. By defending adult sex with children, Hannon violated one of our society’s most deeply held taboos, but in so-doing, raised fundamental question about academic freedom, freedom of speech and the limits of liberty.  At one pole of the spectrum of opinion, critics wondered how an apologist for pedophilia could be let loose in the classroom.  On the other side, defenders said that, in the classroom, Hannon made only oblique reference to sex with children, and an any case, academic freedom protected his right to voice any opinion, no matter how repugnant (Freedland, 1996; Hannon, 1997).
10.  From August 12 to September 16.
11.  Australia, Belgium, Denmark, Finland, France, Germany, Iceland, New Zealand, Norway, Sweden, and the US.
12.  E.g. Brannigan at. al. 1989; Lowman, 1989; Lowman et. al. 1996, 1997.
13.  See Shaw v. D.P.P. [1962] A.C. 220; R. v Grilo (1991), 64 C.C.C. (3d) 53, 5 C.R. (4th) 113, 44 O.A.C. 284; R. v. Celebrity Enterprises Ltd. (1977), 41 C.C.C. (2d) 540; R. v. Downey (1992) 72 C.C.C. (3d) 1 (S.C.C).
14.  Speaking for the Court in R. v. Grilo (see previous footnote for reference).
15.  For information about the social status of clients, see Lowman 1990b; Lowman, et.al. 1996; and Atchison et. al. 1997.
16.  These figures are taken from a study of the Vancouver Sun and Province from the early 1900s to the present.
 

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