Are Canada’s current prostitution laws, enacted in 2014, achieving their goals? How you answer that question will depend on what you identify those goals to be.
News reports frequently claim that Canada’s criminal prostitution laws are failing to achieve their goals. These articles often suggest that the laws were implemented to make sex work safer, healthier and less risky for those who engage in it. Despite these consistent assertions, these outcomes are not what the laws aim to achieve.
Canada’s criminal laws applicable to prostitution were enacted with the intention of denouncing and deterring prostitution. Prostitution is legally defined by the Supreme Court of Canada as the exchange of sexual services for consideration. This exchange is now illegal in Canada.
Parliament based the new laws on the concern that prostitution is an extremely dangerous activity that poses a risk of violence and psychological harm regardless of where it takes place. Their position was that legalizing prostitution does not eliminate these harms.
Those who suggest the goal of Canada’s prostitution laws is to make sex work safer often point to the Supreme Court’s decision in the Bedford case.
Before 2013, there were no direct criminal prohibitions on the purchase or sale of sexual services in Canada. Criminal laws curtailed how and where prostitution could take place.
In its decision, the Supreme Court held that the laws in place at that time precluded people engaged in prostitution — a risky but legal activity — from taking steps to reduce their risk of harm.
However, in the Bedford decision, the Supreme Court made clear that Parliament was not precluded from imposing limits on where and how prostitution may be conducted in Canada. What Parliament was required to do was to ensure that the laws it chose to implement did not increase the risks faced by prostitutes in a way that was overly broad or grossly disproportionate to the new law’s objectives.
The Supreme Court acknowledged that dealing with prostitution is complex and sensitive. How prostitution is regulated is a matter of great public importance; few countries leave prostitution entirely unregulated.
Canadian Parliament: Prostitution discouraged
In 2014, the Canadian Parliament enacted The Protection of Communities and Exploited Persons Act (PCEPA). This new legislative approach to prostitution criminalized “obtaining sexual services for consideration,” making prostitution itself illegal for the first time in Canada.
Activities thought to contribute to creating or supporting a market for sexual services were also criminalized. It is a criminal offence in Canada to obtain financial or other material benefits from the exchange of sexual services, to procure a person to provide sexual services for consideration or to advertise an offer to provide sexual services.
Those who exchange their own sexual services for consideration are immunized from prosecution for their participation in the commission of these offences because they are understood to be victims in need of support and assistance.
It is also an offence to communicate with anyone for the purpose of offering or providing sexual services for consideration in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre.
In the preamble to PCEPA, Parliament expressed grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it. They also identified that social harm results from objectification of the human body and commodification of sexual activity. To protect human dignity and equality, Parliament decided that prostitution itself should be discouraged.
On Nov. 29, 2018, the Ontario Superior Court of Justice released its first decision on the constitutionality of three of the new prostitution laws. The Court upheld the constitutionality of these laws. Referencing a Department of Justice technical paper explaining the new legislative scheme, Justice Stephen T. Bale found that the goal of PCEPA is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it, and ultimately abolishing it to the greatest extent possible.
Bale held that the material benefit, procuring and advertising offences are not overly broad or grossly disproportionate to that objective. In upholding the constitutionality of the offences, Bale found that Parliament was responding to pressing and substantial concerns.
The Court specifically rejected the applicants’ argument that an objective of PCEPA is to enhance the safety, security and dignity of people involved in sex work.
Funding, education and enforcement needed
Along with the concerns expressed above, Bale reasoned the pressing and substantial concerns to which Parliament responded with PCEPA included that the majority of those who sell their own sexual services are women and girls. Marginalized groups such as Indigenous women and girls are disproportionately represented in prostitution. Further, the choice to enter prostitution is often more apparent than real; it is often driven by poverty, child sexual abuse and drug addiction.
Prostitution reinforces gender inequalities by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. The purchase of sexual services creates the demand for prostitution and third parties promote and capitalize on this demand for their own gain.
Whether the objectives of Canada’s current prostitution laws can be achieved depends in large measure on three factors: enforcement, funding and societal and educational commitment.
So far, enforcement of the new laws has been uneven. Police in Canada have significant discretion in deciding how and whether to enforce laws. Police forces in Canada take different approaches to enforcing Canada’s criminal prostitution laws. The Vancouver Police Department, for example, takes the position that sex work involving consenting adults is not an enforcement priority.
In addition, although the federal government promised funding to help the sellers of sexual services exit prostitution, the amount is generally agreed to be inadequate.
Finally, meaningful implementation of the PCEPA will also require education to shift societal attitudes towards recognizing prostitution as inconsistent with equality and human dignity. Provinces may want to consider teaching about prostitution and its harms as part of their sexual education programs.
In introducing PCEPA, Parliament concluded that decriminalization and legalization would not make prostitution safe. As a result, the goal of the legislation is to denounce and deter prostitution itself.
Parliament took some steps to ensure those who continued to engage in prostitution were not precluded from taking safety measures expressly identified in the Bedford case. They immunized them from prosecution for the new commodification offences, excluded certain non-exploitive relationships from the new material benefit offence and limited the locations in which communicating would constitute an offence.
However, making the sex trade safer for those who continue to engage in the now criminal act of prostitution is not an aim of the new laws.