JUST Committee Report
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CHAPTER SEVEN: DIFFICULTIES IN ACHIEVING CONSENSUS — RECOMMENDATIONS AND CONCLUSIONS
As in other countries, there is little consensus in Canada surrounding the issue of adult prostitution, although there is unanimous agreement that the sexual exploitation of minors through prostitution must not be tolerated. This conclusion became clear to the Subcommittee after hearing the testimony of approximately 300 witnesses at public and private hearings held in Ottawa, Toronto, Montréal, Halifax, Vancouver, Edmonton and Winnipeg, from January 31 to May 30, 2005. As we have seen throughout our review of the Criminal Code provisions dealing with prostitution, differing opinions relate to the nature of prostitution, its causes and effects, as well as the measures that should be taken to address it.
B. THE SUBCOMMITTEE’S UNANIMOUS RECOMMENDATIONS
Despite many differences in opinion and contradictory points of views in the testimony and among members of the Subcommittee, a few points of agreement emerge from our study that provide the basis for strong recommendations.
First of all, the Subcommittee agrees that violence, discrimination and intimidation against individuals selling sexual services must never be tolerated.
Commercial Sexual Exploitation of Minors
Like all witnesses, the Subcommittee also agrees that the sexual exploitation of minors (under 18 years of age) is a serious crime that should be subject to severe penalties. In order to create an environment where commercial sexual exploitation of minors is strongly condemned, law enforcement authorities must be provided with sufficient resources and training to ensure the full punishment of those who use and sexually exploit children and youth through prostitution.
RECOMMENDATION 1
The Subcommittee recommends that the Government of Canada ensure that the commercial sexual exploitation of minors (under 18 years of age) remains a serious crime subject to severe penalties and that law enforcement authorities be provided with sufficient resources and training to ensure the full punishment under the law of those who use and sexually exploit children and youth through prostitution.
The Subcommittee also wishes to reinforce the fact that trafficking in persons must remain prohibited and effectively prosecuted, and victims provided with adequate assistance and services. While the Subcommittee applauds the initiatives taken in Canada to counter this serious crime, it recognizes that more needs to be done particularly with respect to the training of law enforcement authorities and the provision of services and programs to victims. In order to effectively prosecute traffickers, law enforcement authorities must be provided with sufficient resources and training. Therefore:
RECOMMENDATION 2
The Subcommittee recommends that the Government of Canada ensure that the problem of trafficking in persons remains a priority so that victims are provided with adequate assistance and services, while traffickers are brought to justice.
The Subcommittee had a mandate seeking to improve the safety of individuals selling sexual services and communities overall. After reviewing the criminal laws pertaining to prostitution with that mandate in mind, members agree that the status quo is unacceptable. The social and legal framework pertaining to adult prostitution does not effectively prevent and address prostitution or the exploitation and abuse occurring in prostitution, nor does it prevent or address harms to communities. This framework must therefore be reformed or reinforced. This view reflects the position of the vast majority of witnesses who appeared before the Subcommittee, as well as the conclusions of the major studies on prostitution conducted over the last 20 years.
Criminal Laws Pertaining to Prostitution are Unequally Applied
Members also agree that the existing laws on prostitution are unequally applied, enabling a “two tiered sex trade to emerge [where] more expensive licensed off-street prostitutes operate with virtual impunity,”273 while those already most vulnerable and marginalized — street-level prostitutes, particularly Aboriginal and transsexual/transgendered persons, as well as drug addicts — are routinely arrested. Unlike section 213 of the Criminal Code, the other provisions pertaining to prostitution (210 to 212) are rarely enforced by police, often passing under the radar of the complaint-driven prosecution process. Given that street prostitution makes up only 5% to 20% of all prostitution-related activities, yet historically accounts for more than 90% of all prostitution-related incidents reported by the police, the bias in application of the law is clear. Therefore:
RECOMMENDATION 3
The Subcommittee recommends that the Government of Canada recognize that the status quo with respect to Canada’s laws dealing with prostitution is unacceptable, and that the laws that exist are unequally applied.
Urgent Need for Legislation and Programs
The Subcommittee came to the conclusion that legislation and programs must be set up to prevent and protect persons from exploitation and assist them in regaining control of their lives. Education campaigns and programs dealing with underlying concerns, such as poverty, social inequality and sexual exploitation, are desperately needed to prevent people from entering prostitution because of lack of choice or coercion, while exit strategies are also needed to assist the individuals who wish to leave prostitution in regaining control of their lives. Like many witnesses, the Subcommittee strongly believes that reducing the incidence of survival sex requires various social programs and services to address the underlying factors that leave individuals with no other choices but prostitution. Therefore:
RECOMMENDATION 4
The Subcommittee recommends that the Government of Canada establish and develop education campaigns and programs to prevent people from entering prostitution because of lack of choice or coercion, and to raise the awareness of young people, children, and society to the risks of being coerced into prostitution. The government must also work with other levels of government, institutions, and non-governmental organizations to develop exit strategies to assist those involved in prostitution who wish to leave in regaining control of their lives.
Need for Research and Data Collection
Throughout its study, the Subcommittee noted a lack of information about prostitution in Canada and agrees that more research is needed to ensure a better understanding of its causes and impacts. As mentioned in Chapter 2, empirical research in the field is too often silent about certain problems that are frequently associated with prostitution, including organized crime, the drug trade, and trafficking in persons for the purposes of prostitution. Therefore:
RECOMMENDATION 5
The Subcommittee recommends that the Government of Canada fund research on prostitution to obtain a clearer picture of prostitution activities in the country, the associated problems, and the needs of people involved in those activities. The Subcommittee believes that a better understanding of the causes and impacts of prostitution is essential to the implementation of policies and programs that will have a positive impact on the lives of individuals engaged in prostitution and communities in general.
Throughout its study, the Subcommittee also noted the absence of a legal analysis of the existing Criminal Code provisions dealing with prostitution (sections 210 to 213), as well as those dealing with violence, exploitation and nuisance. Some of the questions that remain unanswered in this regard include,
Given the high number of minors exploited through prostitution, why is section 212 of the Criminal Code so rarely used to eradicate this pressing problem?
Why are sections 210, 211 and 212 of the Criminal Code so rarely applied in comparison to section 213?
Many police officers told the Subcommittee that they would prefer to tackle demand for prostitution instead of the prostitutes themselves. If so, why are clients so rarely the target of law enforcement initiatives?
Why do law enforcement officials and prosecutors not seem to use general application provisions of the Criminal Code, like kidnapping, extortion, sexual exploitation and assault to address the violence in prostitution?
Finally, the evidence emerging from our testimony with respect to the legal and social approaches to prostitution adopted in other countries was also incomplete and contradictory. The Subcommittee feels that further research into the impact of these approaches and the Canadian approach on issues such as trafficking in persons and the sexual exploitation of women and children is required. In addition, the Subcommittee feels that more comprehensive data and analyses of the legal and social frameworks available to address crime in the context of prostitution would assist the government in finding a viable and effective solution to address prostitution in Canada. Therefore:
RECOMMENDATION 6
The Subcommittee recommends that the Department of Justice coordinate research on prostitution on a priority basis with other levels of government, institutions, and non-governmental organizations, as well as persons selling sexual services. This research should include an examination of best practices adopted in Canada and abroad.
C. A MAJORITY AGREEMENT — THREE PARTIES’ PERSPECTIVES
Prostitution as a Public Health Issue
Members of the Subcommittee could not agree on a strategy to address the safety of individuals selling sexual services and communities overall. That said, the majority of the Subcommittee — members from the Liberal, New Democratic, and Bloc Québécois Parties — strongly believe that prostitution is above all a public health issue, and not only a criminal law issue. What they propose is therefore a pragmatic approach that recognizes the importance of prevention, education, treatment and harm reduction measures for all persons involved in the many forms of prostitution, from sexual slavery and survival sex, to the exchange of sexual services between consenting adults. While recognizing that programs are desperately needed to enable those who wish to leave prostitution to do so, and to support and protect those coerced in prostitution; they also recognize the importance of providing harm reduction measure to address the underlying concerns of poverty and social inequality and to meet the needs of individuals engaged in prostitution with respect to their health and safety (including sex education, distribution of condoms, bad date list, etc). Therefore:
RECOMMENDATION 7
The majority of the Subcommittee calls for concrete efforts to be made immediately to improve the safety of individuals selling sexual services and assist them in exiting prostitution if they are not there by choice. In addition, the federal government should consider increasing transfer payments to the provinces to enable them to provide significant resources for income support, education and training, poverty alleviation, and treatment for addictions, while respecting provincial areas of jurisdiction.
Canada’s Approach to Adult Prostitution is Contradictory
Members from the Liberal, New Democratic, and Bloc Québécois Parties believe that Canada’s current quasi-legal approach to prostitution — in which adult prostitution is legal per se, but nearly impossible to practise without breaking the law — should be recognized as contradictory. Much like the conclusion reached by the Fraser Committee 20 years ago, they feel that since adult prostitution is legal in Canada, the conditions under which it can be practised must be stipulated. Moreover, after hearing the testimony, they came to the conclusion that the current situation causes more harm than good. It marginalizes prostitutes, often leaving them isolated and afraid to report abuse and violence to law enforcement authorities. In the view of members from the Liberal and New Democratic Parties, the Canadian government must come to terms with this contradiction and the inefficiency of the law, and engage in a process of law reform that will consider changes to laws pertaining to prostitution, thus allowing criminal sanctions to focus on harmful situations.
Striking a Balance without Judging
Members from the Liberal, New Democratic, and Bloc Québécois Parties are of the view that sexual activities between consenting adults that do not harm others, whether or not payment is involved, should not be prohibited by the state. They feel that it is essential to strike a balance between the safety of those selling sexual services — without judging them — and the right of all citizens to live in peace and safety. In order to ensure that both individuals selling sexual services and communities are protected from violence, exploitation and nuisance, the majority of the Subcommittee urges reliance on Criminal Code provisions of general application targeting various forms of exploitation and nuisance, such as public disturbance, indecent exhibition, coercion, sexual assault, trafficking in persons, extortion, kidnapping, etc. The approach proposed by these members is premised on the idea that it is preferable to concentrate our efforts on combating exploitation and violence in the context of prostitution, rather than criminalizing consenting adults who engage in sexual activities for money.
D. THE CONSERVATIVE PARTY’S PERSPECTIVE
Prostitution as a Form of Violence, not Commerce
In contrast, like many witnesses who appeared before the Subcommittee, members from the Conservative Party see prostitution as a degrading and dehumanizing act, often committed and controlled by coercive or opportunistic individuals against victims who are frequently powerless to protect themselves from abuse and exploitation. They believe that the most realistic, compassionate and responsible approach to dealing with prostitution begins by viewing most prostitutes as victims.
Questioning Consent and Harmlessness
Unlike other parties, the Conservatives do not believe it is possible for the state to create isolated conditions in which the consensual provision of sex in exchange for money does not harm others. They believe that all prostitution has a social cost, and that any effort by the state to decriminalize prostitution would impoverish all Canadians — and Canadian women in particular — by signalling that the commodification and invasive exploitation of a woman’s body is acceptable. In their view, such a notion violates the dignity of women and undermines efforts to build a society in which all members are respected equally, regardless of gender. Furthermore, considering that gender-linked social and economic hardships are often what push women into prostitution in the first place, the Conservatives question how often “consent” is truly given out of choice, and not necessity.
These members also feel that because of the negative elements it attracts, prostitution is unacceptable in any location — commercial, industrial or residential, including massage parlours and private homes. They feel it would be unethical for a government to voluntarily degrade or endanger any community by permitting increased prostitute, john and pimp traffic, and subsequently exposing locals to elevated levels of harassment, luring and drug use.
The Conservative members agree that the status quo with respect to the enforcement of laws is unacceptable, but disagree that decriminalization is the solution. They cite the example of Sweden, which decriminalized prostitution in the 1960s then recriminalized it in 1999 after concluding that decriminalization had in fact entrenched the very problems it was expected to resolve. The Conservatives are also deeply concerned about evidence from other countries that links decriminalization to an increase in both adult and child prostitution274, and to a stronger control over prostitution by organized crime.275
The Conservatives therefore call for legal and social reforms which would reduce all prostitution through criminal sanctions that clearly target abusers (johns and pimps), and improve the ability of those engaged in prostitution — the victims — to quit. They propose a new approach to criminal justice in which the perpetrators of crime would fund, through heavy fines, the rehabilitation and support of the victims they create. These fines would also act as a significant deterrent. As for the prostitutes themselves, the Conservatives recommend a system in which first-time offenders and those forced or coerced into the lifestyle are assisted out of it, and avoid a criminal record. However, those who freely seek to benefit from the “business” of prostitution would be held accountable for the victimization which results from prostitution as a whole. To address the problem of the two-tiered sex trade, these members emphasize that law enforcement must deal equally and consistently with all forms of prostitution, whether it be found on the street, in escort services, massage parlours, bawdy houses, or other locations.
The Conservatives reject any attempt to characterize the Criminal Code provisions listed in Appendix D as adequate protection for either prostitutes or communities. In their view, such an effort is part of a decriminalization agenda that would eliminate tools required to separate communities from prostitution, and prostitutes from exploitation and abuse. While cognizant that solicitation laws may be improved, they believe that marginalization is not a function of the laws themselves, but of attempts to circumvent them. The fact that such attempts are made points to the need for intervention.
The Conservatives agree that there is a significant public health component to prostitution, but cannot support majority Recommendation 7 insofar as it enables prostitutes to remain in a dangerous and degrading lifestyle. The Conservative Party calls for the establishment of far-reaching educational strategies and programs that are focused on the reduction of all forms of prostitution, and encouraging all prostitutes towards exit programs.
E. DIFFICULTIES IN FINDING A CONSENSUS
The Subcommittee’s examination of the law has revealed significant elements of agreement and disagreement with respect to the appropriate legal and social response to prostitution, probably reflecting the conflicting views of Canadians more broadly.
Much like our testimony, the divergence between members’ views on prostitution is often philosophical. This is certainly one of the major impediments for the Subcommittee to finding consensus on how to address adult prostitution. Some members see prostitution as a form of violence against women — a form of exploitation in and of itself. Others see prostitution among consenting adults as a human rights issue — the right of an adult to use his or her body to provide sexual services in exchange for money and to operate in a safe environment.
As noted earlier, despite the Subcommittee’s extensive study, many questions remain unanswered. There is an obvious lack of research and data with respect to prostitution and issues such as the commercial sexual exploitation of children and youth, trafficking in persons for the purposes of prostitution, and the involvement of organized crime. In addition, the Subcommittee was unable to find an answer as to why the many laws of general application that can be used to control violence and exploitation in the context of prostitution and the negative impacts of prostitution on communities are rarely used to address such crimes. In the same vein, the Subcommittee feels that it did not hear sufficient evidence with respect to the impact of the legal and social reforms emerging from other countries to address prostitution.
Answers to these questions and others would facilitate consensus building as to what changes need to be made in order to ensure that the law more effectively protects individuals involved in prostitution and communities overall.
| 273 | Federal/Provincial/Territorial Working Group on Prostitution, Report and Recommendations in respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities, December 1998, p. 65. |
| 274 | Testimony of Richard Poulin with respect to the Netherlands and the Australian states that decriminalized prostitution, 9 February 2005. |
| 275 | See testimony by Yolande Geadah, Julie McNeice as well as Richard Poulin of the University of Ottawa. |