“Prostitution is not illegal in Canada. We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself.”
Chief Justice Lamer
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code
1990 1 SCR 1123
Canada's criminal law policy towards prostitution is often one of “see no evil, hear no evil”.
For example, an ad in a June 2007 edition of a Vancouver daily newspaper reads: “Erotic-Sensual-Nude Full body by Swedish sexy blonde masseuse”, an advertisement which hardly suggests a jurisdiction where prostitution is discouraged by criminal law.
Indeed, on the curbs on many Canadian cities, free “newspapers” abound, with often little in the form of editorial comment but substantial lewd ad content. Perhaps these are simply the men's detective novels of our era.
Another twist is the licensing of escort agencies by municipalities. According to media reportrs, this happened in Calgary, where licenses apparently cost the operators $3,600 and the workers, $200 each for individual licenses. One fire-fighter jumped on the bandwagon, believing that it was therefore legal, which gave him a defence of "officially induced error" to most of the charges levelled against him. The judgment by Justice Court of Queen's Bench Justice Patrick Sullivan of ABQB dated February 2006 does not appear to have been published.
In any event, dusty or not, our Criminal Code does prohibit “everything related to prostitution”.
First, prostitution is broadly defined and is not restricted to sexual intercourse.
“Prostitution refers to lewd acts for payment for the sexual gratification of the purchaser. The phrase "lewd" ... is broad enough to encompass acts that do not include genital touching but are intended to be sexually stimulating" (R. v. Bedford 2000 143 CCC 3d 311 at http://www.canlii.com/en/on/onca/doc/2000/2000canlii2487/2000canlii2487.html).
By that standard, a conviction under the bawdy-house provision of the Code might flow from masturbation, oral sex, sado-mascochist behavior.
At the same time, the law is no fool:
“One act of illicit connection does not constitute a woman a prostitute. Several such acts with the same man or even permanently living with him in fornication or adultery does not constitute the woman a prostitute. Prostitution means promiscuous sexual intercourse” (R. v Emery (1917) 33 DLR 556).
Secondly, the Code prohibits the operation of a bawdy-house “for the purpose of prostitution”.
While a variety of venues would qualify as a bawdy-house, Canada's Supreme Court, in 2005, in what was probably an attempt to “keep the state out of the bedrooms of the nation”, excluded private swinger clubs, even when the members engage in orgies within a licensed bar.
But that case can be distinguished from prostitution as it stated that there was no harm to society in swinger or orgy clubs as “no one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others”.
Bawdy-house offenses require some degree of control and knowledge of the prostitution activities allegedly occurring therein, by the "keeper".
Thirdly, the Code prohibits anybody from procuring or attempting to procure or solicit a person to have illicit sexual intercourse, who entices a client to a bawdy-house for the purposes of prostitution or who lives on the veils of prostitution of another person (i.e. pimping).
Illicit sexual intercourse apparently refers to sex outside of marriage.
Because the law covers procurement, evidence of sexual intercourse is necessary.
Canadian criminal law's fourth weapon against prostitution is the offense created by any person “who in a public place or in any place open to public view communicates with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute”.
In R. v Swift 143 AR 173 (1993), the following conversation occurred between an undercover female police officer and the accused:
Officer: Hi.
Accused: Hi, how are you?
Officer: Do you want to talk to me?
Accused: Are you a talented lady?
Officer: Oh, yes. What are you looking for?
Accused: Some head. Are you big up top?
Officer: Yeah, make me an offer.
Accused: Are you a cop? Can you prove you're not a cop ... lets see your tits.
Officer: Business first pal.
Accused: $40 for head?
Officer: OK
The accused was then told to drive around the block and pick her up. He did not do so. Instead, he drove off.
In the result, he was acquitted of the charge of communication for the purpose of obtaining the sexual service of a prostitute as the Court had a reasonable doubt as to whether the conversation was to procure prostitution.
It is important to note, as did Justice Wilson in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, that the Code: “does not prohibit prostitution which remains a perfectly legal activity. It does not even prohibit solicitation; it only prohibits solicitation in public places”.
Fifth, the Criminal Code has other offenses which suppress prostitution-like activity including the offense of a parent or guardian procuring sexual activity, that of a householder permitting sexual activity and the offense of corrupting children.
Note that some jurisdictions have also been successful in controlling prostitution by using the tort claim of public nuisance.