Prostitution in Canada - Legal Status

Legal Status

While the exchange of sexual gratification for consideration between consenting adults is legal, the law prohibits those activities Parliament deems to be a threat to public order or offensive to public decency, under the powers given to the federal government.

The activities related to sex work that are prohibited by law include operating a premise (sexual services establishment or brothel) where such activities take place, being found in such an establishment, procuring for such purposes, or communicating such services (soliciting) in a public place are illegal, making it difficult to engage in prostitution without breaking any law. Automobiles are considered public space if they can be seen. On the other hand, working as an independent sex worker and private communication for such purposes (telephone, internet, e-mail, etc.) is legal. This ambivalence can cause confusion leading to one judge referring to the laws as 'Alice-in-Wonderland' and the Chief Justice of the Supreme Court to refer to the situation as "bizarre".

“We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself. The appellants' argument then, more precisely stated, is that in criminalizing so many activities surrounding the act itself, Parliament has made prostitution de facto illegal if not de jure illegal.”, per Dickson CJ at page 44

The legal situation has also been challenged in the rulings of two courts in Ontario in Bedford v. Canada, which described the laws as 'ancient' and emphasised that the purpose of the laws was not to eradicate prostitution but to mitigate harms emanating from it.

"We are satisfied that the challenged provisions are not aimed at eradicating prostitution, but only some of the consequences associated with it, such as disruption of neighbourhoods and the exploitation of vulnerable women by pimps." OCA at 169

In a strongly worded dissenting opinion (2:3) regarding the potential harm of the laws, the appellate justices wrote;

"The 1985 addition of the communicating provision to the existing bawdy-house and living on the avails provisions created an almost perfect storm of danger for prostitutes. Prostitutes were first driven to the streets, and then denied the one defence, communication, that allowed them to evaluate prospective clients in real time." OCA at 364

'Prostitution' is not defined in Canadian statute law, but is based on case law which deems that 3 elements are necessary to establish that prostitution is taking place - (i) provision of sexual services, (ii) the indiscriminate nature of the act (soliciting rather than choosing clients), and (iii) the necessity for some form of payment.

On October 25, 2012, the Supreme Court of Canada granted leave to appeal and cross-appeal of the Ontario Court of Appeal Bedford decision. The court also granted the motion to stay the Ontario Court of Appeal decision until judgement is passed. This means that the Criminal Code sections at stake are still in-force in Ontario.