Keywords Sociology

With the development of the transcontinental railways, there was a mass migration westward at the turn of the century. Unlike the earlier settlers of the West who had been mainly farm families, these migrants were mostly single men, either bachelors or husbands who had temporarily left their wives and families at home. This mass migration of single men created an environment in which prostitution flourished. Brothels were located close to the railway stations. Unless they or their inmates came to the attention of social or moral reformers, little was done to close them. The authorities were inclined to feel that prostitution had to be tolerated because it could not be eradicated. On occasions when the North-West Mounted Police did take action, it was usually for reasons other than a mere violation of the prostitution laws. Such reasons included complaints that prostitution was having a damaging effect on the native population or on the railway construction projects, or evidence that brothel inmates were involved in other criminal activities.

From 1890 on, legal repression made it more difficult to operate brothels, and street prostitution became more common. Levels of prostitution increased during WWI when there was little employment for women, and decreased during WWII, perhaps as a result of the greater economic opportunities for lower-class women in war-related industries. Immediately following the war, the levels of prostitution continued to fall and the off-street trade became much more decentralized.

Brothels (sometimes organized as massage parlours), call-girl and call-men operations (often concealed as model and escort services) still exist today, but street prostitution is the most visible form of prostitution and receives the most attention. Yet in Canada as elsewhere, street prostitution represents only a small proportion of the sex trade (estimates range from 10% to 33%).

Legislation and Enforcement
Prostitution itself has never been a crime in Canada but various activities relating to the exchange have always been prohibited. Currently 4 classes of prostitution-related activities are prohibited: 1) procuring or living on the avails of prostitution; 2) owning, operating, or occupying a bawdy house; 3) all forms of public communication for the purpose of prostitution; and 4) knowingly transporting another to a bawdy house. Statutes prohibiting some of these activities have been in place in Canada for well over 200 years. One of the earliest - contained in the Nova Scotia Act of 1759 - was designed to make the status of being a prostitute or streetwalker an offense. In comparison to the criminalization of the NONMEDICAL USE OF DRUGS - which occurred just under 90 years ago in 1908 - the criminalization of prostitution has a relatively long and varied history. Social and legal responses to it fall into 4 clearly distinct periods: preconfederation (1759-1867), Victorian (mid-19th century-1920), post-Victorian (1920-1972) and contemporary (1972-1992).

Pre-confederation
Legislation controlling prostitution prior to 1867 was in the form of vagrancy laws designed to remove indigents and other undesirables from the streets. The earliest prohibitions made the status of being a prostitute or streetwalker an offense. Disruptive or annoying behaviour was not a prerequisite to detention and once the status was established, conviction would follow more or less automatically. Both prostitutes and those who ran or frequented common bawdy houses were dubbed vagrants and were liable to prosecution under the law. From all accounts, enforcement during this period was sporadic and capricious. Prostitution was likely to be tolerated in port cities such as Halifax and on the western frontier but repressed when it was seen as a direct threat to respectable members of the population. Regardless of where and when the laws were enforced, the focus of attention during this early period of Canadian history was the prosecution of female prostitutes.

Victorian
After Confederation, more complex provisions designed to protect women and children from procurers, pimps and brothel keepers were introduced. In 1867 the new federal government enacted provisions prohibiting the defilement of women under the age of 21. In 1869 the existing vagrancy provisions were consolidated and expanded to embrace males found to be living on the avails of prostitution. The penalties were increased in 1874 and in 1886 the bawdy-house provisions were re-enacted. When the Criminal Code was finalized in 1892, the vagrancy provisions outlawing street walking and bawdy houses were incorporated along with some additional offenses directed at bawdy house operators and procurers of women "for unlawful carnal connection." Provision was also made for the securing of a search warrant when there was reason to suspect the concealing of a women or girl lured into prostitution. Over the next 28 years, the laws relating to procuring and living on the avails continued to be refined: definitions were enlarged and penalties strengthened. The bawdy house provisions were also refined but much less extensively.

Some argue that these changes came in response to the initiatives of members of the national temperance and Protestant church organizations who created and maintained a climate in which the evils of white slavery were very much in the public imagination. The reformers' objectives were to abolish the "social evil" by punishing exploiters and rescuing women and children from sexual exploitation in general and white slavery in particular. Regardless of the reason, amendments addressing these concerns are clearly reflected in the laws of this period. Unfortunately the determination to punish exploiters and rescue women and children did not carry over into practice. During the years immediately before and after the enactment of the Criminal Code, there are no entries for either defilement or procuring, nor for the nuisance offence of keeping a bawdy house. Convictions for the vagrancy offenses increased only slightly and after 1895 - the first year a gender breakdown is available - the entries show that more convictions were registered against women than men. Conviction rates for bawdy house offenses increased as well, but once again the conviction of females significantly outnumbered those of men. Convictions for procuring were infrequent. After 1911 when they became numerous enough to warrant reporting, the rate never exceeded more than 66 convictions per year for all of Canada. These figures are insignificant in comparison to the fervour over the extent of white slavery and the traffic in women and children.

Post-Victorian
The social purity movement waned in the 1920s and the sex trade continued with little public comment for the next 50 years. There were no changes to the procuring and street prostitution sections and only minor changes to the bawdy house section. The latter took place in 1947 when the maximum sentence for keepers and inmates was increased to 3 years and a new offence added: knowingly transporting another to a bawdy house. The enforcement patterns in evidence during the Victorian era continued into this period. Women (not men) were criminalized for selling sexual services, convictions of women outnumbered those of men for the more serious bawdy house offenses, and conviction rates for procuring remained very small. Only with respect to the less serious bawdy house offenses did the convictions of men outnumber those of women.

Contemporary
When public debate was rekindled in the late 1970s and early 1980s, it was prompted by growing concern about the increased visibility of street prostitution in residential neighbourhoods. The protests during this period recaptured the social nuisance concerns of the preconfederation era. Citizens' groups - portraying prostitution as either an insidious source of neighbourhood decay or as a public nuisance in residential areas - lobbied municipal, provincial and federal politicians to enact more effective laws to control street prostitution. The solutions most groups advocated were simply aimed at strengthening the soliciting section of the criminal code. In contrast, civil libertarians, a variety of feminists' groups, and Prostitutes' Rights Organizations, supported much broader legal and social reform. In large part, their concerns echoed those manifested by the Victorian reformers. They called for the criminalization of those seen as exploiting or coercing prostitutes and a full array of social reforms to eradicate the objective conditions that force people into prostitution. In addition they wanted the law changed so that women and men could work in the sex trade (could prostitute) without being subject to criminal offence.

In 1983 a special committee was appointed by the federal government to inquire into and report on these problems. They recommended strong criminal sanctions against street prostitution but otherwise embraced the need for broad social and legal reforms. Only the former were eventually adopted by the government.

The prostitution legislation enacted during this period changed the wording of the Criminal Code in 4 areas.

First, street prostitution ceased to be a status offence. The vagrancy provision was repealed and replaced by a soliciting law in 1972 and then by a communicating offense in 1985. In the process, the legal understanding of the offensive behaviour (soliciting had to be "pressing or persistent") was expanded to include simple communicating and even "attempting to communicate" for the purpose of prostitution.

Second, the liability for engaging in prostitution was extended to men, both as prostitutes and as purchasers. A definitional amendment in 1983 provided that prostitute meant "a person of either sex engaging in prostitution" and the new communicating section clearly included customers. It stated that every person communicating for the purposes of engaging in prostitution or of obtaining the sexual services of a prostitute is liable.

Third, the protection of women under the procuring offence was extended to both men and women and persons of either sex can now be charged with procuring and living on the avails of prostitution.

Fourth, customers of juvenile prostitutes and pimps who engage youths were singled out for more severe sentences in 1988.

The coming into force of the new communicating section did not serve to still the public debate. It generated criticism from lawyers, prostitutes, civil rights groups and feminists and is being challenged on several grounds, including its legality under the freedom of expression section of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS. The latter has been successfully challenged in some provinces and upheld in others. Until dealt with by the Supreme Court of Canada, however, its constitutionality remains unresolved. In the meantime, contemporary enforcement practices penalize women more often and more severely than men; penalize prostitutes more than customers, procurers, or pimps; and penalize street prostitution more than off-street prostitution. Since levels of street prostitution initially plummeted and then quickly rebounded to previous and even higher levels, questions about the effectiveness of the communicating legislation remain.

The Participants
Most of the studies relating to prostitution focus on the women who work the street, ignoring the men who prostitute, the men who purchase their services, the pimps and the off-street sex trade. Yet field studies show that women represent only a very small proportion of the individuals involved (conservative estimates based on the ratio of female to male prostitutes and the average number of clients served each week indicate that less than 5% of those involved in communicating for the purpose of prostitution are women). Police and court-room statistics as well as clinical and social agency samples suggest that most street prostitutes are young, single, female, addicted, undereducated, from backgrounds with a history of poverty and abuse, and controlled by pimps. These impressions are only partially corroborated by the field studies conducted for the special committee. Most are female and most - regardless of gender - are young (the average age varied from 22 to 25) and began their careers between the ages of 16 and 20. Most are single but between 30% and 70% of the women have children and are supporting them financially (depending upon the region). The data regarding drug use vary substantially by region and gender. It is highest in the Atlantic provinces, lowest in Québec, and appears to be a problem for the men more than the women. Levels of educational attainment seem low and poverty and abuse levels appear high, but they have yet to be adequately compared with the rates in the general population. Findings from all the field studies clearly indicate that many women work for themselves: 62% in Vancouver, 50% in Toronto, and 69% in Montréal claimed that they worked for themselves. The presence and influence of pimps was more extensive in the Maritimes and on the Prairies.

There is general agreement that prostitution is a hazardous business. The people involved in the selling are at risk - the women more so than the men - from physical assault, sexual assault, theft and sexually transmitted diseases. There is little consensus, however, as to why they are at risk. Some argue that it is inherent in the job itself; others insist the danger is inherent in its illegality; still others argue that it is dangerous simply because women are at risk in our society.

Research on child and adolescent prostitution is limited but public concern over the extent of youth involved in prostitution is growing. There is a general consensus that it represents a serious problem but some dispute over the numbers of youth involved. Unofficial estimates suggest that a significant number of the prostitutes who work the streets and other public places are juveniles. Police statistics indicate otherwise: fewer than 5% of those charged with prostitution activities are youth, and of those over 80% are young women.

These findings do not challenge the integrity of the more traditional databases. They simply indicate that the traditional data must be combined with field samples in order to provide a more representative portrait of the situation. The lack of information on customers, pimps and the trade itself underscores the need for more studies on these topics.

Legal Policy Options
Strategies to regulate prostitution and its attendant problems fall under 4 basic systems of control: criminalization, legalization, abolitionism or decriminalization.

Criminalization
Criminalization, or prohibition as it was called in the 19th century, involves the use of criminal law to control prostitution and any related activities. Victorian prohibitionists believed that prostitution should be eradicated, and wanted criminal law to serve as a tool to root out all forms of prostitution activities. Today, most advocates of the criminalization approach are simply interested in strengthening criminal law with regard to street activities and youth prostitution.

Legalization, abolitionism and decriminalization are different strategies for making various combinations of adult prostitution activities legal.

Legalization
Under legalization, sometimes known as regulation, prostitutes and prostitution activities are regulated while using the criminal law. Practices may include the licensing of prostitutes, compulsory medical examinations, zoning (confinement to certain areas) and the registration of bawdy houses through the criminal justice system. Early proponents of regulation believed that prostitution resulted from the different sexual needs of men and women. They felt that prostitution should be recognized as a necessary social evil and regulated to contain its worst side effects; eg, the spread of SEXUALLY TRANSMITTED DISEASE and the traffic in women. Contemporary supporters of legalization are less concerned with the social evil and more concerned with the nuisance aspects of street prostitution, since attempts to suppress it have failed. Legalization is practised in several countries.

Abolitionism
Abolitionism frees prostitutes from criminal sanction but maintains specific laws criminalizing those seen as exploiting or coercing them. Prostitutes are seen as victims rather than criminals. The goal is to protect them while working toward the final abolition of prostitution by punishing the exploiters and reintegrating prostitutes back into "legitimate" society. This is reminiscent of the approach advocated, but not practised, by Victorian reformers. Abolitionism is endorsed by the UN in its Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others. To date, no country has adopted a pure form of abolitionism.

Decriminalization
Decriminalization involves the repeal of all existing laws including the offenses dealing with the exploitation or coercion of prostitutes. Prostitution is considered to be a personal choice and hence a private matter between consenting adults. Proponents of this system argue that individuals and activities can be regulated without using criminal law and that the specialized protection under abolitionism reinforces the marginalized position of prostitutes. Their aim is to ensure that those abusing prostitutes are penalized under the appropriate sections of the criminal code (eg, kidnapping, physical assault, sexual assault, extortion, theft) and to increase the chances of women and men leaving the profession should they so wish. Not practised by any country to date, this approach seeks to affirm the rightful place of prostitutes in the community by erasing at least the legal distinction between them and the rest of society.

The official policy in Canada is to criminalize prostitution activities. Enforcement practices, however, reflect a pattern of selective toleration akin to the regulation of prostitution under legalization. Over 90% of Canadians are convinced that prostitution is here to stay but there is no consensus regarding the approach to take. Prostitutes' rights groups and some feminists urge full decriminalization of prostitution offenses. The majority of analysts conclude that most ought to be decriminalized. Public attitudes are divided but many favour a strategy that will make some activities legal. In contrast, the current government favours a criminalization approach: various committees are poised to call for more vigorous enforcement of the current legislation and to bring in provisions to facilitate the apprehension and punishment of clients and procurers of youth. It is clear that prostitution will continue to be a controversial issue in Canada for years to come.

Author FRANCES M. SHAVER

Suggested Reading
James H. Gray, Red Lights on the Prairies (1971); P. Fraser et al, Pornography and Prostitution in Canada, vol II, Report of the Special Committee on Pornography and Prostitution (1985); Janice D. McGinnis, "Whores and Worthies: Feminism and Prostitution, "Canadian Journal of Law and Society IX (1994); John P.S. McLaren, "Chasing the social evil: Moral fervour and the evolution of Canada's prostitution laws, 1867-1917, "Canadian Journal of Law and Society I (1986); E. McLeod, Women Working: Prostitution Now (1982); G. Pheterson, ed, A Vindication of the Rights of Whores (1989); Daniel Sanfaçon, ed, "Law, Feminism and Sexuality," Special issues of the Canadian Journal of Law and Society IX,1 (1994).

Links to Other Sites
You and the law - Community Legal Information on the Web
An extensive listing of websites providing general legal information that may be of interest to Canadians. From University of Toronto’s Bora Laskin Law Library.