Prostitution in Canada: Overview and options for reform

(Disponible en français: La prostitution au Canada – Aperçu et voies de réforme)

Since the Criminal Code came into force in 1892, adult prostitution has not in itself been illegal in Canada, although many activities surrounding prostitution are.

Today, provisions relating to prostitution are set out in sections 210 to 213 of the Code. They include the offences of keeping, using or transporting a person to a bawdy-house (brothel); procuring and living on the avails of prostitution; and communicating in public.

Over the last 30 years, these provisions have been debated in a variety of contexts. Among others:

  • in 1985, a Special Committee on Pornography and Prostitution recommended several legal and social reforms; and
  • in 2006, a subcommittee of the House of Commons Standing Committee on Justice and Human Rights issued a report on prostitution.

Constitutional challenge: Canada v. Bedford

More recently, a group of sex workers took a constitutional challenge to the courts. In December 2013, the Supreme Court in Canada (Attorney General) v. Bedford struck down sections 210 (bawdy-house), 212(1)(j) (living on the avails of prostitution) and 213(1)(c) (communication for the purposes of prostitution).

It ruled that the provisions violated section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person.

The Court held that the provisions made it almost impossible to engage in prostitution in a safe environment, as a person selling sex could not legally operate indoors, or hire managers or security personnel.

The Court suspended its declaration of invalidity for one year to give the government time to respond. The government announced yesterday that, in response to the ruling, it will introduce a bill in the House of Commons this week.

It should be noted that several prostitution-specific provisions were not addressed in the Court ruling, namely, most of the provisions in sections 212 and 213 targeting sexual exploitation and public nuisance. Other generic provisions of the Criminal Code, including provisions dealing with trafficking in persons, physical harm and public disturbances, can also be applied to address community concerns as well as target violence and exploitation in prostitution.

Options for reform

Following Bedford, the federal government conducted an online consultation to seek input on how the criminal law should respond to adult prostitution. It released its report on the consultation this week.

The federal government also announced that it would study international approaches. These approaches vary, ranging from complete or partial criminalization to complete or partial decriminalization or legalization.

There is little consensus on the best approach. Two conflicting perspectives are usually at play: one considers voluntary adult prostitution as a service industry and favours decriminalization or legalization; the other considers prostitution a form of violence and seeks its abolition.

Sweden and New Zealand have taken diametrically opposed directions. One has chosen criminalization of all parties involved, except the persons who sell their sexual services, while the other has chosen decriminalization of all forms of voluntary adult prostitution.

Evaluating the impacts of these reforms is a difficult task for many reasons, including the underground nature of prostitution, the absence of knowledge of the exact extent of prostitution prior to and after legislative changes, and the growth of solicitation on the Internet for the purpose of prostitution.

The table below compares three legal approaches often referred to when debating prostitution. In all three countries, it is a criminal offence to use children in prostitution, to force a person to engage in prostitution, or to profit from forced prostitution (for example, s. 273f of the Dutch criminal code).

The table below compares three legal approaches often referred to when debating prostitution. In all three countries, it is a criminal offence to use children in prostitution, to force a person to engage in prostitution, or to profit from forced prostitution (for example, s. 273f of the Dutch criminal code).

Table 1 – Legal Approaches to Prostitution in Sweden, the Netherlands and New Zealand

Activity Sweden
(Criminalization to Abolish Demand)
Netherlands
(Legalization)
New Zealand
(Decriminalization)
Operating a brothel Illegal – Unless the prostitute owns the space.Illegal to grant the right to use a place that serves for prostitution (a landlord or a friend of a prostitute could be prosecuted).Penalty – Imprisonment for up to 4 years, or if considered serious (“gross”), between 2 years and 8 years (Penal Code, Chapter 6, s. 12) (119 kB, 8 pages). Legal – Brothels must apply for licences, and employers must comply with labour laws and tax and social insurance obligations.Municipalities regulate the conditions under which sex work is permitted (size, location, and health and safety regulations). Legal – Operators must obtain a certificate, except small owner-operated brothels (i.e., with no more than 4 sex workers who control their earnings).Local authorities can impose restrictions on the location of brothels (Prostitution Reform Act 2003, s. 14).
Procuring and living on the avails Illegal – Promoting or profiting from the prostitution of others.Penalty – Same as for operating a brothel. Legal – Other businesses (e.g., escort services) may also require licences, depending on local government. Legal – Operators must adopt and promote safe sex practices.Penalty – A fine of up to $10,000 (Prostitution Reform Act 2003, s. 8).
Selling sexual services Legal (Prostitutes are considered victims of exploitation.) Legal – Citizens of the European Union may sell sex. Sex workers have the same rights and obligations as other workers.Street prostitution is either prohibited or confined to specified zones. Legal – Sex workers have the same rights and obligations as other workers, but must adopt safe sex practices.Penalty – A fine of up to $2,000 (Prostitution Reform Act 2003, s. 9).Migrant workers may not sell sex.Street prostitution is legal but subject to nuisance laws.
Buying sexual services Illegal – Obtaining sex for payment.Penalty – A fine or imprisonment for up to 1 year (Penal Code, Chapter 6, s. 11) (119 kB, 8 pages). Legal – Unless in illegal venues. Legal – Clients must adopt safe sex practices.Penalty – A fine of up to $2,000 (Prostitution Reform Act 2003, s. 9).

Laura Barnett, Lyne Casavant
Legal and Social Affairs Division
4 June 2014

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© Library of Parliament 2014