The Evolution of Canada's Prostitution Laws
Updated: Mar 29, 2021
Policy Brief by Zoie Sutherland
This piece is part of Kroeger Policy Review's first issue on Race, Religion, and Culture. The full issue is available here.
Known as the oldest profession in the world, prostitution, also known as sex work, exists and has existed in most countries. Every country has different laws regarding sex work and prostitution. Whether it be from legal, decriminalized, or outright illegality, prostitution specifically is regulated in many different ways. In Canada, the current status of prostitution is dictated by Bill C-36, known as the “Protection of Communities and Exploited Person Act”, legislation that was introduced in 2014 (1). It was introduced as an amendment, to a supreme court decision that had been made the previous year. However, to understand Bill C-36, and its amendments it is important to understand how prostitution laws in Canada have evolved until now.
With the introduction on the Canadian Charter of Rights and Freedoms in 1982, it became legal to challenge the laws on prostitution present in the Constitution, and this challenge eventually happened in 2013. As of 2013, the Supreme Court struck down the laws against prostitution in Canada, after a challenge which originated from two different provincial legal challenges from British Columbia and Ontario (2). The basic gist of the arguments was that the illegality of prostitution was violating the rights of sex workers. Specifically, in the case of Canada (AG) vs Bedford, the argument being made was that the right to security was being violated by how the laws forced existing sex workers into the shadows and put them in danger, as people had to work illegally to access their services (3). The case in British Columbia was coming to a similar conclusion however, the Supreme Court ruled Canada’s prostitution laws unconstitutional resulting in the B.C becoming moot.
After the Supreme Court decision struck down the laws, Parliament was given a year to create replacement legislation which led to the birth Bill C-36, introduced on June 4th 2014, by the then Justice Minister Peter Mackay, and then became law in November of that year (4). This goal of this bill was to amend the law so that it was brought into line with the constitution. Bill C-36’s legislation is focused on the protection of those sell their own sexual services, protect vulnerable communities, such as children who incur harm as a result of prostitution, and reduce the incidence of prostitution (5). Bill C-36 has harmonized the Canadian laws on both prostitution and human trafficking, making this legislation two pronged. The first section of the law specifically states that sex workers themselves, and those selling sexual services are not be penalized. It is not illegal to sell sex, however it is illegal to purchase sexual services (6). It is stated clearly in Bill C-36 that if a person is to purchase, market, procure, or communicate about sexual services that are not their own, they are in fact in violation of Canadian law. What this distinction does in theory is protect sex workers from penalization and only penalize those who benefit from those services. In practice it hinders from doing their work publicly, which then puts sex workers in danger to being taking advantage of (7). The violation of Bill C-36 can result in jail time for the offender depending on the individual situations. The second prong of the C-36 concern human trafficking offences, which have much harsher consequences. Bill C-36 despite its claims to protecting sex workers still effectively made prostitution illegal in Canada, as it continued to penalize any customers who would be purchasing said sexual services. Bill C-36 still passed into law fairly easily, and since then the general political populace has been relatively apathetic on the topic of sex work in Canada. In fact, the only people who have seemingly cared about the bill have been sex workers.
After the Supreme Court decision in 2013, many of Canada’s sex workers regarded the new legislation to come with hope that it would be better than the outright criminalization that had persisted beforehand in Canada. For many sex workers however, Bill C-36 was seen as a major step back. Organizations such as the Canadian Alliance for Sex Work Reform have pointed out that it still actively criminalizes sex work, and still puts sex workers at risk (8). Many sex workers have pointed out that the legislation was created with little to no input from those actually effected by it (9). Instead of keeping sex workers safe, the law has instead forced them to make their activities more secretive, which instead has actively put sex workers more at risk than anything else (10). As it is illegal to buy or procure sex, sex workers cannot work in any setting that is not illegal and unsafe. Instead of protecting sex workers, it does nothing to address the root causes of sex work and instead creates more likely situations of harm in Canada (11).
Since the bill has become law, it and the topic of prostitution has largely disappeared from any type of political discourse in Canada. In 2019, sex work was only mentioned in one party’s election platform (the Green Party) and there was no real consistent plan aside from “reform Bill C-36” (12). The political will to do anything about the sex work laws in Canada is little, despite the harm current legislation causes. If anything, is to be done regarding the world’s oldest profession in Canada, the next time it should be done actually consulting the sex workers themselves.
Government of Canada, Department of Justice. ‘Fact Sheet - Prostitution Criminal Law Reform: Bill C-36, the Protection of Communities and Exploited Persons Act’, 11 March 2015.
2008 BCSC 1726 Downtown Eastside Sex Workers United Against Violence Society v. Attorney General (Canada)’. Accessed 5 November 2020
Canada (Attorney General) v. Bedford, 3 SCR 1101. Accessed 5 November 2020.
Government of Canada, Department of Justice. ‘Fact Sheet - Prostitution Criminal Law Reform: Bill C-36, the Protection of Communities and Exploited Persons Act’, 11 March 2015
Ibid
Ibid
Chu, Sandra, and Rebecca Glass. ‘Sex Work Law Reform in Canada: Considering Problems with the Nordic Model’. Alberta Law Review 51, no. 1 (2013): 101–25.
McKeen, Alex. ‘How a Canadian Law Meant to Protect Sex Workers Is Making It Harder for Them to Stay Safe’. Thestar.Com, 9 November 2018
Wahab, Stéphanie. ‘Creating Knowledge Collaboratively with Female Sex Workers: Insights from a Qualitative, Feminist, and Participatory Study’. Qualitative Inquiry 9, no. 4 (August 2003): 625–42
Picard, Andre. ‘Canada’s New Prostitution Laws May Not Make Sex Work Safer: Research’. Accessed 5 November 2020.
Chu, Sandra, and Rebecca Glass. ‘Sex Work Law Reform in Canada: Considering Problems with the Nordic Model’. Alberta Law Review 51, no. 1 (2013): 101–25.
‘Election Platform 2019’. Green Party of Canada, https://www.greenparty.ca/en/platform. Accessed 1 Nov. 2020.