The Walrus Blog

Laying Down: the Law

Is prostitution legal in Canada?
ProstitutionMassimo Catarinella/Wikimedia CommonsTwo brothels in Amsterdam’s red-light district

Last week, a resounding 77 percent of respondents to a Globe and Mail online poll voted that prostitution should be decriminalized in Canada — missing the point that it already is, and always has been. But seven out of ten Canadians believe it isn’t, according to a 2011 Angus Reid survey.

Why are we confused about the status of sex work in Canada? While selling sex (an activity that the government loosely defines as providing sexual services for payment in an essentially indiscriminate nature) is legal, the work is enveloped in a tangle of illegal peripheral activities — a duplicity that mimics the nation’s ambivalence toward the profession. This tangle of laws makes it “virtually impossible to engage in prostitution without committing a crime,” as Parliament recognized in a large-scale 2006 study of sex work in Canada. The situation is confounded by frequent media reports of police arresting sex sellers through raids or publicly shaming buyers by broadcasting their names.

Historically, 90 percent of these police incidents relate to solicitation in a public place, according to 2005 figures from the Department of Justice. The Fraser Report, a landmark 1985 Parliamentary review, recommended banning street solicitation, but retaining the decriminalized status of selling sex among consensual adults, and proposed that prostitution be contained within government-regulated establishments. Taking prostitution off the streets and into controlled houses would seem to solve many problems: this would protect public space, reduce police workload, and provide a safer workplace for professional sex workers. 

From a series of posts about underexplained people, places, and things that have arrested our collective attention.

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Recently, courts in Ontario have agreed. Twice. On March 26, Ontario became the first province to successfully decriminalize brothels and “living off the avails” of prostitution (a provision that allows sex workers to hire bodyguards). This ruling stretches back to September 2010, when representatives of the sex worker community won their application  in the Ontario Superior Court of Justice to legalize brothels, public solicitation, and the allowance to live off the avails of prostitution. No new laws came into effect, however, because the Attorney General of Canada (Rob Nicholson, an ex-Conservative MP known for his tough-on-crime stance) and the Attorney General of Ontario appealed the decision in July 2011. Last week’s Ontario Court of Appeal ruling, which upheld all but the solicitation provision, resolved their objection. Now, Nicholson and John Gerretsen, who became Ontario’s Attorney General last October, are debating whether to contest this latest decision yet again, this time in the Supreme Court.

Two decades ago, the Supreme Court considered various prostitution-related clauses in the Criminal Code, and decided against changing the law. The Ontario Superior Court of Justice reopened the issue in 2010, arguing that social beliefs had sufficiently changed. That seems accurate: while prostitution itself remains morally ambiguous, last month, 72 percent of CBC News’ online readers voted that brothels and solicitation should be legalized. (Canadians’ ambivalence towards prostitution is mirrored in how we feel about gambling, a practice, legalized only in 1985, that remains under exclusive control of the government. Pro-gambling public support has increased since then, but still only 62 percent of Canadians find gambling “morally acceptable.”)

Multiple government reports have confirmed that neither full criminalization nor full legalization is appropriate in Canada; the mess of existing laws represents our balancing attempt. The international arena seems as confused as we are. Brothels are legal in New Zealand, the Netherlands, and parts of Germany and Nevada. But three of the world’s most socially progressive countries — Sweden, Norway, and Iceland — have outlawed the sale of sex entirely.

Not even the Conservative Party is pushing to ban sex work, but has zeroed in on criminalizing brothels — although these might help meet the party’s objective to “make our streets safe” by bringing a disliked practice out of the public eye. It’s anyone’s guess how public attitudes on prostitution will change over time, but what remains clear — at least according to the courts — is that professionals in the sex industry deserve the same rights to safety as the rest of us.

Alina Konevski is an online editorial intern at The Walrus.

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  • Skamzolo

    I absolutely agree with the author that whether we like or dislike it, the sex workers are Canadian reality, thus, should have the same legal rights for safety and protection as the whole society. In my opinion as a nurse, it will prevent from many health related issues such as STDs. If we cannot change the situation (namely, the demand for paid sex, we should be able to  control it).

  • Steve F

    sex work is morally confusing because in a ‘proper’ society we shouldn’t have a demand for such practices. How realistic is that? Our society is anything but proper; dangerous, stressfull, alienated and lonely are more apt descriptions in my mind/world. Proper (properly), refers to the strata of society that theoretically is not wanting for the essentials of life, housing, food, friends, and family.
    I and many others like me live in poverty, isolated, with.little social support. The women and men who prostitute on the street are simply trying to survive as are their non-violent customers.
    There are two many on both sides of the sex trade equation who are trying to victimize the other
    Both the worker and the customer should have equal access to safety and security.

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