The Need to Make Prostitution Legal in Canada

Over the years, Canada has had many different views of prostitution in relation to the law. Prostitution is the practice or occupation of engaging in sexual services in exchange for money, and can take the form of many varieties including streetwalkers, bar girls, massage parlour prostitutes, house prostitutes, rap session booth prostitutes, and escort service prostitutes. Canada’s first prostitution laws were based on British common law in the Nova Scotia Act of 1979, and were initially prohibited under vagrancy laws (Chenier, 2019). In the Canada (Attorney General) v. Bedford case in 2013, prostitution was struck down as unconstitutional by the Supreme Court of Canada, and as a result, the federal government introduced Bill C-36, The Protection of Communities and Exploited Persons Act. Its approach is known as “end demand” or the “Nordic model,” which focuses on the prosecution of those who purchase sex rather that those who sell it. Under this law, to be paid for sex is to be prostituted, which is to be sexually exploited (Davies, 2015). This act aimed to criminalize the people who buy sex, in an attempt to reduce the demand for prostitution. Moreover, Bill C-36’s reforms target those who create the demand for sexual services, and those who capitalize on that demand. It is legal to solicit for purpose of sexual services as long as it’s in a place where people under the age of eighteen are not present. Public order crimes like prostitution are often debated, as there is a thin line between good and bad behaviour and is dependent on who is determining that. Criminal law protects society and condemns social harm, but it is more difficult to identify victims in public order crimes because these people might be willing. Power plays a big role in defining public moral standards, as peoples’ views on right versus wrong varies. Research shows sex workers’ perspectives are ignored during policy formation in most cases, even though they have insider knowledge and are directly affected by the policies that are enacted. In saying this, the current laws are not the best way to respond to prostitution. These laws open prostitutes up to a greater safety and health concerns and disregards the experience of sex workers. Prostitution should be a trade that is regulated and have precautions in place to ensure the health and safety of the sex worker’s while also allowing them to maintain their sex worker career.

The first reason that Bill C-36 and the current laws in place are not the best way to respond to prostitution is because it presents an increase in safety concerns and risks for the prostitute. Prostitution can take place outdoors in the form of streetwalkers, or indoors as massage parlour prostitutes, house prostitutes, rap session booth prostitutes, and escort service prostitutes. It has been argued that indoor prostitution typically involves less exploitation, less risk of violence, more control over working conditions, more job satisfaction, and higher self-esteem. However, since these indoor prostitution venues are illegal, prostitutes look for outside work where they won’t get caught during the exchange, making them further exposed to vulnerabilities of violence. Research shows that outdoor prostitution has higher rates of rape and sexual assault. Firms such as a brothel or a massage parlour can invest in locks, security cameras, and security professionals to reduce the opportunity for premeditated violence from clients. Without suggesting that these firms are not exploitative and violent towards prostitutes in some instances, research has shown that they can provide prostitutes with the skills, assets and knowledge require to improve their safety and security, including screening clients before meeting with them, and act as a guardian for street-based workers. Criminal enforcement in Canada has been found to primarily focus on street-level sex trade, as research shows that 93-95 per cent of arrests are street-level occurrences, even though only 5-20 per cent of sex work occurs on the street. In addition, the legal restrictions put sex workers at an increased risk of infectious disease. Research shows that street prostitution has higher rates of gonorrhea (Willcox, 1962; Wren, 1967; Dunlop, Lamb and King, 1971 as cited in Cunningham & Shah, 2014), as indoor prostitution typically involves more control over working conditions, a greater job satisfaction, and higher self-esteem .

Moreover, prostitutes are more vulnerable to safety concerns due to their agnostic and alienated relationships with the police services (Benoit et al., 2017). Benoit’s research on sex worker’s shows that prostitutes feel alienated from accessing police services and feel as though they have to make a decision between more dangerous working conditions, or being criminalized if they get caught (Benoit et al., 2017). Pitts’ study (2016) on sex workers found that there are limited avenues for sex workers to seek protection or support when their safety is compromised, due to fear of arrest or discrimination. Decriminalization of prostitution may reduce violence by increasing sex worker’s willingness to cooperate with police and report crimes committed against them.

Another reason Bill C-36 is not the best way to respond to prostitution is because It silences the varied experiences of sex work, and discounts structural conditions for which a prostitute may enter into the sex trade in the first place such as socio-economic background and race (Galbally, 2016). Sex workers are viewed as a homogenous group, who are oppressed and enslaved by sex buyers and managers, in need of rescue (Benoit et al., 2017). However, sex workers are a heterogeneous group and come from all walks of life (Chenier, 2019). The sex trade is often considered a prostitute’s main means of making a living, and that it is their job or occupation. At an international level, it has been noted that sex work often arises in situations of poverty and economic disadvantage, particularly in the realm of human trafficking (Galbally, 2016). A “survival” sex worker is someone who engages in prostitution as a means to survive, and sometimes, prostitution is the only way they can afford basic necessities. Bill C-36 prohibits purchasing sexual services, making the prostitution transaction illegal, therefore taking away the prostitutes means of living. Furthermore, the law’s prohibition on advertisements have made it a lot harder for self-employed sex workers to operate as they have to look on the street and often encounter johns who are afraid of being targeted and criminalized because they are seeking out sex workers.

Rather than implementing a law such as Bill C-36 where purchasing sexual services is illegal and the businesses or persons that profit from the prostitution transaction is illegal, we should respond in a way where the regulatory objective should be to prevent coercion without infringing on voluntary exchange. I believe a law such as New Zealand’s Prostitution Reform Act (PRA), which legalizes prostitution, but has provisions in place to ensure that workers are actually protected by authorities such as police against coercion, violence, and exploitation (Bowen, 2013). The goal of this act was to improve the working conditions, health and safety of sex workers, and allows adults to sell from their own homes, in brothels, and from the street and other unregulated spaces. Mossman’s study (2010) interviewing informants on the New Zealand PRA revealed that the interviewees generally viewed violence had been decreased to a degree (Bowen, 2013). Furthermore, 70 per cent of the interviewees in the study reported that sex workers were now much more likely to seek help from authorities when needed. This is important in responding to prostitution because the function of the police is to maintain public order and safety. If prostitutes are more willing to talk to the police and report incidences to the police, they will feel safer and maintain a positive relationship with authorities, seeing police officers more as protectors than prosecutors. New Zealand was one of the first countries who received feedback from diverse workers and people who experience prostitution first hand, whereas with the construction of Bill C-36 and prostitution policy in other countries is driven by moral assumptions and not empirical evidence. As previously stated, this is problematic because sexual deviance is a social construction and power plays a major role in determining moral standards and what is deemed right and wrong (Chenier, 2019). Taking into consideration the views of the sex worker’s when creating policy will allow for insights on whether a particular policy approach improves their health and safety.

Considering the difference between prostitution and sex trafficking should be another response to prostitution in Canada. Prostitution and sex trafficking are not the same. In the legalization debate, however, sex trafficking and prostitution are often conflated (Huisman & Kleemans, 2014). Human trafficking laws in Canada are completely different from prostitution laws, and changes from a situation of agency to one of trafficking when there is force, fraud, or coercion involved (Chenier, 2019). However this conflation of human trafficking with domestic sex workers arose in the Bill C-36 debate, reinforcing the victim status of the sex worker through the notion that they were brought into the sex worker life against choice (Galbally, 2016). The consequence of this is that it establishes criminal law as the only permissible legal solution, and rescue as the only possible response to dealing with the victims' exploitation. Rather, the policy should take into account the extent to which the sex worker may be a voluntary participant. This reiterates how the response of Bill C-36 to prostitution disregards the sex worker’s experiences.

Finally, I believe regulating prostitution would be an effective response. One way to regulate prostitution is by continuing to have serious laws in place of prostitution for those buying and selling sexual services under the age of 18. This will help keep commercial exploitation of children at a minimum. In addition, STI testing should be regulated as well. A study involving indoor female sex workers in Vancouver indicated that 12 per cent of respondents had never had STI testing, and 16 per cent had not had HIV testing (Canadian Public Health Association. By having services in place where prostitutes can routinely get checked for STI’s without the fear of judgment or criminalization will ensure they are healthy and seek treatment.

Overall, I argue that Bill C-36 is not the best response to prostitution in Canada. Power plays a big role in defining public moral standards, as people’s views on right versus wrong varies when dealing with public order crimes. The bill suggests that sex workers are a homogenous group and victims of prostitution. We see however that this isn’t true, as prostitutes come from all walks of life and people may enter the sex worker field for various reasons. The evidence suggests that the law presents an increase in safety concerns and risks for the prostitute. Since indoor venues such as massage parlours and brothels are not legalized, sex workers turn to finding clients on the streets, making them more vulnerable to victimization. Moreover, due to indoor venues being more controlled, the legal restrictions on these venues increase the risk of infectious disease for the sex workers. The bill also overlooks male prostitution and transgender prostitution. As outlined on the Department of Justice’s website, prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies. By stating this, they are discounting the male and transgender prostitutes, even though they are affected by and must follow Bill C-36. Rather, the response to prostitution should prevent coercion without infringing on voluntary exchange. This will reinforce that there is a difference between prostitution and trafficking, and that the sex worker might be a voluntary participant. Most importantly, when coming up with a response to prostitution, rather than power and authority being the main drive and determining factor of the policy, the sex workers themselves should be consulted, as they are the one’s being affected the most by the policy, and they will have the most insight on what they believe will maintain their health and safety while working as a prostitute. A committee with various stakeholders of the sex work industry should be important to get the best results, and thus can implement a “best practices” policy. This will ensure that the sex workers are safe while doing their job.