Canada’s Sex Work Legislation Hasn’t Changed

Evania Pietrangelo-Porco

This essay is part of a series.

“…Bill C-36…It’s a first in Canada…we make the buying of sex illegal. We target the predators…Bill C-36 has recognized that a lot of [prostitutes] are victims…If [prostitution] becomes an ‘industry,’ if this Bill doesn’t go through, we will have everything legal as of December 2014. Is that the Christmas present you want to give to your children?”^[1]

In her interview with Dr. John Hull for the television show 100 Huntley Street, Joy Smith (former Member of Parliament representative for the Kildonan-St. Paul region in Manitoba) overzealously promotes Canada’s Protection of Communities and Exploited Persons Act (the PCEPA or Bill C-36). The moralistic rhetoric found across Smith’s entire interview paints Bill C-36 nearly flawlessly. However, what struck me most was her claim that Bill C-36 was a “first” in Canada – simply because that’s not true.

Bill C-36’s predecessor, Bill C-49 (1985-2014), criminalized the sale and purchase of sexual services (especially on-street sex work) by making it an offence to solicit in “a public place or in any place open to public view.”^[2] While C-36 pertains to sex work more broadly, it traces its roots back to C-49. This genealogy brings me to my point: Bill C-36 certainly isn’t a “first” in Canada. Canada’s sex work legislation didn’t change with C-36. Quite the opposite occurred because Bill C-36 and Bill C-49 are the same.

During the 19th century, in no small part due to the social purity movement (mid-to-late 19th century to the early 20th century), moral reformers sought to control and eradicate social vices- including sex work.

They saw sex work as coercive because they believed it catered to men’s “insatiable” sexual drives. However, sex work was also seen as necessary because it protected “moral” women from unwanted sexual advances. These ideologies made their way into a series of laws aimed at preventing and eliminating the “exploitation/slave trading” of cis white middle-class women and children and the “social evil” of sex work more broadly- something The Protection of Communities and Exploited Persons Act addresses in its very name.^[3]

Procuring a person to have sexual intercourse, aiding, abetting, or controlling for “gain the prostitution of another person,” owning, frequenting, or keeping a bawdy house, and living off the avails of prostitution all became indictable offences during this time.^[4] These laws also focused on controlling “prostitution-related nuisances,” which were defined and treated as vagrancy and immorality.^[5]

The purpose of the “Vag. C” laws that governed sex work legislation until 1972 was to quell public outrage and concern, remove sex workers and their clients from the streets, and alleviate the land-use conflicts associated with brothels.^[6] Issues of control over the cityscape continued into the 1970s and 1980s with the displacement of sex workers from “established working areas through inner city renewal practices and policing strategies.”^[7] This displacement contributed to Canada’s sex work “crisis” of the ‘80s- rooted in the claim that there was an increase in on-street sex work across Canada’s major cities.

The federal government responded to this “crisis” with the Special Committee on Prostitution and Pornography, or the Fraser Committee (1983-1985), and the Committee on Sexual Offences Against Children and Youth, or the Badgley Committee (1984). Each report investigated the extent of Canada’s sex work “problem,” and the Fraser Committee was to form the basis of Canada’s new sex work laws.

Yet, the federal government created Bill C-49 from the Standing Committee on Justice and Legal Affairs (1983), which means they formed the basis of C-49 before the Fraser Committee completed its findings.^[8] This is significant because the Fraser Committee outwardly stated that Canada’s sex work “problem” could not be fixed with legislation alone. It recommended eradicating the economic and social inequalities contributing to people’s entry into sex work- a recommendation ignored by both C-49 and C-36.

Bill C-49 came into effect on December 20, 1985, making it an offence to solicit or purchase sexual services in a public place or any place open to public view. The ambiguous definition of “public space/place” gave police immense interpretational power that allowed for the removal of on-street sex workers and their clients en masse.^[9] Unable to practice their trade in populated areas, outdoor sex workers were pushed further from residential areas into regions that led to countless deaths and disappearances. Despite sex workers protesting the Bill for decades, Bill C-49’s most notable challenge was Canada (Attorney General) v. Bedford (2013).

In 2010, Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott challenged Canada’s legal prohibitions on keeping a bawdy house, living off the avails of prostitution, and sexual solicitation in public.^[10] After an appeal to the Ontario Court of Appeal in 2012, the case went to the Supreme Court of Canada. In 2013 “…the Supreme Court of Canada declared unconstitutional three Criminal Code offences addressing prostitution-related conduct on the basis that they violated section 7 of the Canadian Charter of Rights and Freedoms…Section 7 protects the rights to life, liberty and security of the person…”^[11]

As per this constitutional violation, parliament had 12 months to create new legislation. If they failed to do so, the existing laws would become invalid on December 20, 2014- exactly 39 years after Bill C-49 came into effect.^[12] Bill C-36 gained Royal Assent on November 6, 2014.

In addition to focusing on child prostitution and human trafficking, the PCEPA criminalizes the purchase, public sale, and advertising of sexual services and heavily restricts third-party activity.^[13] Bill C-36, like its predecessor, inhibits open communication between sex workers and their clients, utilizes notions of victimization to argue for the elimination of sex work, and makes generalized claims about an incredibly varied industry.^[14] Additionally, by restricting third-party activity, the PCEPA prohibits important safety mechanisms. These mechanisms include hiring and paying for security, accessing agencies that screen clients, and procuring transportation. These restrictions leave sex workers to manage vital safety measures either independently or not at all.^[15]

It is, therefore, unsurprising that the Canadian Alliance for Sex Work Law Reform launched a constitutional challenge to the PCEPA in 2021- brought to the Ontario Superior Court between October 2 and 7, 2022.^[16] On September 18, 2023, the Ontario Superior Court released its decision in CASWLR v. Attorney General (Canada), deciding to uphold the PCEPA.^[17]

The Supreme Court of Canada is currently hearing arguments regarding the constitutionality of Canada’s sex work legislation. R v. Kloubakov (2024) is “the first time Canada’s highest court will consider whether Canada’s legislation on prostitution complies with the Canadian Charter of Rights and Freedoms.”^[18] However, sex workers were denied participation in this case- showcasing a consistent and concerning pattern regarding sex work legislation and sex work writ large in Canada.^[19]

Further Reading:

Canada. Parliament. Senate. Standing Committee on Justice and Human Rights. Preventing Harm in the Canadian Sex Industry: A Review of the Protection of Communities and Exploited Persons Act. 4th sess., 44th Parliament, 2022. Committee Report 4. https://www.ourcommons.ca/Content/Committee/441/JUST/Reports/RP11891316/justrp04/justrp04-e.pdf 

POWER, The Toolbox: What Works for Sex Workers, Ottawa, ON: Prostitutes of Ottawa/Gatineau, 2012. https://chrr.info/wp-content/uploads/2022/08/POWER_ToolBox_WhatWorksForSexWorkers.pdf

Frances M. Shaver, “Prostitution,” The Canadian Encyclopedia (blog), October 27, 2011, https://www.thecanadianencyclopedia.ca/en/article/prostitution

Evania Pietrangelo-Porco is a PhD candidate in the Department of History at York University. Her work primarily focuses on Vancouver and Torontos’ on-street sex trade from the 1970s to the 2010s.

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^[1] Huntley Street, “Bill C-36: Prostitution Reform Laws,” 100huntley, June 24, 2014, YouTube video, 1:28 to 4:52, https://www.youtube.com/watch?v=yKros_x5J3U

^[2] Criminal Code, S. C. 1985, Elizabeth II, c. 51, s. 213 (Canada). https://laws-lois.justice.gc.ca/eng/acts/C-46/section-213-20030101.html#wb-cont

^[3] John Lowman, “Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution,” Beijing Law Review 2, no. 2 (2011): 34. doi: https://www.researchgate.net/publication/228459004_Deadly_Inertia_A_History_of_Constitutional_Challenges_to_Canada’s_Criminal_Code_Sections_on_Prostitution

^[4] Ibid.

^[5] Ibid.

^[6] Leslie Ann Jeffrey, “Prostitution as Public Nuisance: Prostitution Policy in Canada,” in The Politics of Prostitution: Women’s Movements, Democratic States, and the Globalisation of Sex Commerce, ed. Joyce Outshoorn (Cambridge: Cambridge University Press, 2004), 85 and Frances M. Shaver, “The Regulation of Prostitution: Avoiding the Morality Traps” Canadian Journal of Law and Society 9, no. 1(1994): 127. doi: https://www.researchgate.net/publication/271903342_The_Regulation_of_Prostitution_Avoiding_the_Morality_Traps

^[7] Deborah Brock, Making Work, Making Trouble: The Social Regulation of Sexual Labour (Toronto: University of Toronto Press, 2009), 6.

^[8] Sheilagh O’Connell, “The Impact of Bill C-49 on Street Prostitution: ‘What’s Law Got to Do With It,’” Journal of Law and Social Policy 4 (1988): 137. doi: https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1182&context=jlsp&httpsredir=1&referer=

^[9] O’Connell, “The Impact of Bill C-49 on Street Prostitution,” (1988): 110-111.

^[10] Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act. [Ottawa, O.N.]: Department of Justice, 2017. https://www.justice.gc.ca/Eng/Rp-Pr/Other-Autre/Protect/P1.Html

^[11] Ibid.

^[12] Ibid.

^[13] *It is significant to note that anti-sex worker campaigners often conflate sex work and human/sex trafficking. Sex work is not sex trafficking. Sex work is consensual, while trafficking is not.

^[14] Kara Gillies “A Wolf in Sheep’s Clothing: Canadian Anti-Pimping Law  and How It Harms Sex Workers,” in Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada, ed. Emily van der Meulen, Elya M. Durisin, and Victoria Love (Vancouver: UBC Press, 2013), 273; John Lowman and Christine Louie, “Public Opinion on Prostitution Law Reform in Canada,” Canadian Journal of Criminology and Criminal Justice 54, no. 2 (2012): 248. doi: https://www.researchgate.net/publication/254932771_Public_Opinion_on_Prostitution_Law_Reform_in_Canada; and Tamara O’Doherty, “Criminalization and Off-Street Sex Work in Canada,” Canadian Journal of Criminology and Criminal Justice 53, no. 2 (2011): 221. doi: https://www.academia.edu/16807132/Criminalization_and_Off_Street_Sex_Work_in_Canada

^[15] Canadian Alliance for Sex Work Law Reform, Criminalizing Third Parties In the Sex Industry: Impacts and Consequences (Canadian Alliance for Sex Work Law Reform, 2015), page #2. https://sexworklawreform.com/wp-content/uploads/2017/05/Third-Parties.pdf

^[16] CASWLR, “Parliament Set to Hear the Human Rights Violations Caused by Canada’s Sex Work Laws,” Canadian Alliance for Sex Work Law Reform (blog), February 7, 2022,  https://sexworklawreform.com/parliament-set-to-hear-the-human-righs-violations-caused-by-canadas-sex-work-laws/

^[17] CASWLR, “Media Release: Sex Workers are Deeply Disappointed with the Ontario Superior Court Decision Dismissing Systemic Harms Experienced,” Canadian Alliance for Sex Work Law Reform (blog), September 18, 2023,  https://sexworklawreform.com/media-release-sex-workers-are-deeply-disappointed-with-the-ontario-superior-court-decision-dismissing-systemic-harms-experienced/

^[18] Debra M. Haak, “Supreme Court hears case on Canada’s prostitution laws,” The Conversation, Nov. 12, 2024, https://theconversation.com/supreme-court-hears-case-on-canadas-prostitution-laws-243003#:~:text=The%20case%2C%20R%20v.%20Kloubakov,benefitting%20financially%20from%20sexual%20services

^[19] CASWLR, “Press Release: Sex Workers Denied Day in Court: The Injustice of Litigating Sex Work Law Without Sex Workers,” Canadian Alliance for Sex Work Law Reform (blog), May 28, 2024, https://sexworklawreform.com/press-release-sex-workers-denied-day-in-court-the-injustice-of-litigating-sex-work-law-without-sex-workers/ and Vincent Wong and Jamie Chai Yun Liew, “R v. Kloubakov: Supreme Court of Canada ignores sex workers in case on sex work,” The Conversation, Feb. 19, 2024, https://theconversation.com/r-v-kloubakov-supreme-court-of-canada-ignores-sex-workers-in-case-on-sex-work-240417