Analysis of Prostitution Law in Canada
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Prostitution has been known to be the oldest profession in the world. It is defined as an act or the exercise of engaging in any sexual acts in exchange for money. The act of prostitution exists in almost every culture and civilization in the world (Chemerinsky, 2006, 54). Just as the cultures vary richly from each another, prostitution and prostitution policies differ greatly throughout the world. Although the deed of prostitution itself is generally similar all over, the rules that are affecting the sex trade are the most effective in shaping the distinctive and discrete sex industries of different nations (Taylor, Martin & Douglas, 1994, 154).
Although prostitution has been existent for thousands of years, regulations controlling the nature of the sex-trade are only a few hundred years old. The epidemic of sexually transmitted disease (STD’s) that occurred in the 16th century, led to the first serious determinations to control the act of prostitution, as public health deliberations necessitated further regulatory legislation. Morality and social ethics have also played a great role in determining the place of prostitutes in the modern society.
This paper is meant to discuss and analyze whether the act of prostitution should get regarded as a criminal act. The paper also focuses on the Canadian laws concerning prostitution. The act of Prostitution occurs on a regular basis, despite its illegality all over the world. A lot of debates have been raised on the issue if prostitution should be legalized or not. The act should be legalized due to the fact that no laws have been able to stop prostitution from continuing. Prostitution is much similar to pornography (Chemerinsky, 2006, 154). However, prostitution is considered immoral to the society while pornography gets widely accepted. The reality is that whether with or without the laws, prostitution continues to occur. Regulation, rather than criminalization, lets the government step in at least to avert violence towards the sex workers (Taylor, Martin & Douglas, 1994, 46).
Indeed, evidence confirms that the regulated indoor prostitution normally has fewer issues pertaining violence than the normal unregulated sex trade (Walker, 2006, 223). The constitutional right to confidentiality is a foundation element the Canadian Charter of Rights and Freedoms. Canada follows a regulation tactic toward dealing with prostitution regulations, and a drift toward less state regulation has arisen due to the judicial and legislative deed accepting constitutional right to privacy arguments.
Prostitution itself has been termed as not illegal in Canada, but the Canadian administration has criminalized numerous acts associated with the act of prostitution. This comprises operating a bawdy house, communicating in a civic place for the purposes of indulging in prostitution, and living off of the benefits of prostitution (Ditmore, 2011, 94). The concrete effect of such hefty regulation is that it is virtually difficult to participate in prostitution without falling subject to the criminal regulation. Such protocols are designed to safeguard families and communities from the externalities allied with prostitution and get also premeditated with morality in mind.
The morality-oriented prostitution regulations got generated in the late nineteenth century as a portion of an extensive “social purity” drive. Prostitution rules got justified under the notion that such moral ills harmfully impacted women and children (Taylor, Martin & Douglas, 1994, 93). Originally, prostitution was impeached under vagrancy models; prostitution was only indictable if it took place in communal places. Currently, Canadian regulation tends to criminalize civic solicitation and the operation of brothels under a concept of public nuisance. Outstandingly, the regulations that have been sustained as within the Canadian government’s influence deal with the matter of public as opposed to private destructions, such as community disturbance and crimes connected with operating a bawdy house. In current times, constitutional challenges to the stern regulations on prostitution have increasingly gained momentum. As a consequence, some provinces still criminalize practically all acts associated with prostitution, while others no longer levy criminal penalties in practice.
Virtually speaking, in some parts of Canada, prostitution will not result in sanctions while in others it is essentially proscribed. The right to privacy is found within the Charter of Rights and Freedoms, but also even then, its presentation to sexual autonomy has required some allowance. The Canadian Charter of the Rights and Freedoms usually comprises of a textual right of “security of person,” that was added in the 1980s.This provision got stolen from the United Nations Charter for Human Rights. Attached with the addition of the right to security of person, the 1980s also saw comprehensive changes to views of constitutional equivalence in Canada. One of the major changes was the necessity for constitutional acknowledgment of women’s equality rights. Reformers retained emphasis on women’s issues such as equivalent pay, domestic violence, as well as prostitution. If the right to safety of a person is established, the court will engross a heightened level of inspection. Canadian courts poise the individual’s liberty interest alongside the state’s interest in divesting the liberty (Chemerinsky, 2006, 215).
Eventually, there must be a conclusion that the governmental interest is not uninformed. This provision has taken on a multitude of diverse meanings, but remarkably it has been used to find a right of physical privacy and independence. This discussion first found its foothold in the right to have an abortion. The Canadian courts accepted the argument that since the right to safety of the individual could be read as a right to the bodily independence, exclusion of abortion illegally interfered with a woman’s rights. Under this analysis, the safety of person provision debatably extends to the right to engage in prostitution and has effectively been advocated in court in modern times.
Recently, the Canadian government decided to come up with a Bill that touched on the issue of prostitution. The Bill is widely known as the C-36 Bill. The C36 Bill is contained in the Protection of Communities and Exploited Persons Act. The Bill came as an Act meant to amend the Canadian Criminal Code which was in response to the Canadian Supreme Court’s decision which came about after the Attorney General of Canada v. Bedford which forced the making of consequential amendments to the other related Acts. The C-36 Bill later got to receive the Royal Assent, making it a Law in Canada.
The argument that the right to security as assured in the Canadian Charter of Rights and Freedoms should inhibit government interference with acts of prostitution based on a broad interpretation of this imprecise right. While no Canadian law marginalizes prostitution, the heavy regulations enacted have the influence of the virtual criminalization (Chemerinsky, 2006, 325). The dispute, therefore, follows that these protocols are unconstitutional since they have the effect of preventing the act of prostitution from being carried out at all, as all related acts are illegal. The applied state of illegality instigated by these regulations has been defied under the right to safety of the person established in the Canadian Charter of Rights and Freedoms. Security of individual is interpreted as availing a right to privacy of the body.
This understanding has brought the provision into the dominion of sexual autonomy. Such an addition is premised on the declaration that the “body of a human should be protected from intrusion by others. “Comparable to the right of privacy available in the U.S. Constitution, this establishment is used to back the proposition that everyone has the right to “govern one’s body and make essential decisions about one’s life.” This discussion first gathered support in the abortion perspective (William & Hunter, 2011, 174). The Canadian abortion laws were run down under the interpretation that the laws instituted “state interference” with the human body in violation of the right to safety of a person. Courts articulated that state interference with a lady’s choice in what to do with her entire body violated the right to security of an individual.
Scholars argue that to the degree that there is any privacy worry involved in prostitution, it is not a socially valued right to privacy. Rather, the “privacy” involved is perceived as resultant to a sphere where females can be ill-treated and victimized, and the general public will turn a blind eye. Consequently, there is no essential right to privacy involved in the act of prostitution, because the end result of permitting such a right would be tremendously negative for the females involved (Shaman, 2006, 239).
The argument over whether the national government has an explanation for regulation was seen in the Bedford case verdict, discussed below. The Bedford conclusion found that while the government did have some benefits in the regulations, the governmental welfares did not validate the violation of the right to privacy. Contrasting with the constitutional contests in the United States, the debate that prostitution protocols infringe the right to security of individual has reaped some achievement in Canadian courts in modern times. One such case is Bedford v. Canada brought forth in Ontario.
Three women brought forth an act for declaratory relief. The three ladies had not been condemned of violating any laws, but rather defied several regulations as in facial violation of the Charter. Namely, the ladies defied regulations that dealt only with adult prostitution. Their standing stood on their individual stake in the constitutionality of the regulations at issue (Shaman, 2006, 351).To succeeds before the court, the Bedford plaintiffs made two showings. First, the plaintiffs showed that there had been Section 7 desecration of their “life, right, or safety of a person.” Subsequent, they showed that the government’s confines on this right did not comport with “principles of the fundamental justice.”
The court ruled that the Bedford plaintiffs succeeded on both prongs. To show a desecration of security of individual, the Bedford plaintiffs discussed that the regulations on prostitution impeded with bodily rights in desecration of Section 7. The government disputed with a narrow clarification, arguing that the Charter contained no establishment protecting a right to engross in prostitution. The Bedford plaintiffs further debated that morality could not establish a “constitutionally legal, legislative objective. “The Canadian government disputed that legislation based on ethics was constitutionally allowable where the “laws are a replication of society’s core values.” Since the Bedford plaintiffs prevailed on their displaying that a fundamental right was involved, the government was required to demonstrate how it advanced an interest in meddling with this fundamental right (Outshoorn, 2003, 83). After a lengthy consideration of the statistics on the effects of prostitution regulations, the court resulted that the laws were ineffectual in protecting the persons engaged in prostitution, and numerous regulations were ineffective in restricting social nuisance.
Consequently, the government was incapable of showing that the law was not arbitrary. For instance, the court recognized that the bawdy-house requirements do, in fact, seeks to inhibit a harm that includes public nuisance. The court, though, found that such provisions were not defensible under the Oakes test since they are disproportionate to the reason of preventing social nuisance; the court reigned that the “bawdy-house provisions are excessively broad as they limit liberty and security of the individual more than is needed to accomplish their goal.” The court further distinguished that the regulations on bawdy houses were not justified since, according to statistical substantiation, complaints about bawdy houses were “infrequent.” Thus, the prostitution laws did quite minimal in advancing the governmental interest in inhibiting social nuisance (Tarantino, 2007, 81).
The court also struck down a restriction on living on the profits of prostitution. The court accepted that this section does, in fact, have a significant state interest; the provision seeks to inhibit the financial exploitation of females engaged in prostitution. The state court, on the other hand, felt that this objective was not properly met by the rule. The regulation generated a “perverse choice.” Ladies could exercise their own right (through securely doing prostitution), but only at the outlay of the freedom of others who would live off the profits of prostitution, such as their drivers or even body guards, who would be detained for violating this provision (Holmes, 1996, 473).The resolution of the trial court in Bedford was later appealed to the Court of Appeals in Ontario. The court of appeals espoused the trial court’s decision that the criminal provision banning the bawdy houses was quite unconstitutional.
The court of appeals in Canada also upheld the trial court’s decision that criminalizing living off of the profits of prostitution was unconstitutional. Instead of striking the law in its fullness, the court distinguished that it could be made constitutional by regulating the scope of its use to situations of misuse. The court articulated that while prostitutes may use safety staff and other professionals to promote security better, the law should still “mark the pimps or others who exploit” females.
Although Bedford’s promoters largely saw the appeal as a victory, it was not entirely prosperous. The court of appeals got to overturn the trial court’s decision as to the provision outlawing communication for the reasons of prostitution, and thus that the directive still stands. The state has formally stated that it will appeal the conclusion up to the Supreme Court of Canada, and thus the prospect of the Bedford decision remains on fairly tenuous grounds. The Bedford verdict is groundbreaking as it could have a “domino effect” for prostitution cases in other parts of the world.
The current Nevada model delivers useful regulation for prostitution law reform in numerous ways. The fact that this model has been operative for over forty years indicates that decriminalization must not “be dismissed as a perfect ideal.” A practical model of regulation has, in fact, been in place (Holmes, 1996, 43). Further, it efficiently addresses the public/private division. The situation of brothels is carefully zoned in order to avert neighborhood disturbance. Rules also ban the advertisement of brothels on community streets or highways in any region where prostitution is forbidden(Ditmore, 2011, 34).
Moreover, since regions can, to some extent, device the level of regulation, communities can respond to their community needs through applying more or less severe regulation. In fact, brothel possessors often go out of their way to evade disturbing the public, in order to preserve a positive business image (Ditmore, 2011, 76). This aptitude to operate as a sincere business has very positive inferences. Brothel owners get less stigmatized within their societies, and public members are more likely to come to an understanding that prostitutes should be allowed to work. Additionally, there are concrete health benefits for sex workers involved in the regulation model. Under a criminalization administration, sex workers seldom have consistent access to health care. The consequences can be distressing; bearing in mind prostitution conveys a very high risk of sexually transmitted infections (STIs) (Holmes, 1996, 264).
Under a regulation model, though, sexual health can be thoroughly monitored. Sex workers who want to work at brothels need to be tested for all STIs before being allowed to work. Moreover, in-house doctors must give sex workers STI analysis every month, or in several cases once a week (Cossman & Fudge 2002, 45). If a sex worker tests positive, she is not allowed to work until the STI has been totally cured. If she tests positive for diseases like HIV, the state will no longer allow her to be licensed as a sex worker. Since the testing platform has been implemented, no licensed prostitute employed in a Nevada brothel has contracted HIV (Taylor, Martin & Douglas, 1994, 217). One study established that out of 5000 recounted cases of gonorrhea in a particular year in Nevada, and only nine were recounted in licensed brothels. The health and welfare of prostitutes are greater in the more predominant criminalization regime (Ditmore, 2011, 54).
Additionally, there is indication that a regulation regime may be more operational at inhibiting violence toward ladies than a criminalization regime (Cossman& Fudge, 2002, 83). Ferocity against sex workers is one of the most persistent issues within prostitution. A regulation regime could inhibit violence against sex workers in numerous different techniques (Shaman, 2006, 674). First, regulation would move the focus of law enforcement. Instead of striking criminal sanctions on sex workers, law enforcement executives could focus determinations on stopping violence toward prostitutes. This move would also hearten more prostitutes to report attacks, without the dread of being subject to criminal fines.
Subsequently, evidence indicates that violence and assault are modestly less prevalent in controlled brothels than in free street prostitution (William & Hunter, 2011, 173).In street prostitution, sex workers are out in public, where they are often susceptible to attacks or muggings. Brothels, nevertheless, allow sex workers to monitor clients (Holmes, 1996, 236). Further, there is no confirmation that these clients normally harbor a tendency towards physical violence. Indeed, studies show that controlled brothel sex workers experience far fewer physical assaults—one study demonstrate that seventy-eight percent of indoor sex workers in Britain had never experienced an attack, and yet another shows that seventy-seven percent of indoor sex workers in Belgium had never experienced an assault. Finally, regulation inhibits violence by constructing a safer atmosphere. Unregulated street prostitutes frequently have no resources to avert violence (William & Hunter, 2011, 163).
Such practical considerations are significant because they show that the constitutional right to privacy can, in fact, be used for decriminalization, without leading to negative secondary consequences. This shows that the constitutional analysis is not only theoretically sound, but also practically viable. Further, these practical insinuations are an important piece of the constitutional right to privacy exploration (William & Hunter, 2011, 247).
In conclusion, the government can overcome a fundamental right to privacy if it has a convincing interest. One of the major governmental confirmations used for criminalization in reduction of “secondary effects,” for instance, the avoidance of disease. These practical studies show, however that the directive more effectively inhibits disease and limits violence toward ladies. Since the government’s controversies regarding secondary effects are untrue in practice, and the government should be unable to use the secondary effects argument to overcome the fundamental right to privacy. Morality and social ethics have also played a great role in determining the place of prostitutes in the modern society. With modernity, a larger population are getting to accept this profession. Also the fact that no laws have been able to stop prostitution from continuing should be a green light for the government to put up an Act in order to control it.
The applied state of illegality instigated by these regulations has been defied under the right to safety of the person established in the Canadian Charter of Rights and Freedoms. The fact that the act of prostitution is not illegal in Canada makes it easier to put forward measures that would ensure that those who practice it does it safely. Prostitutes should only operate in brothels in order to enhance their security and also reduce the rate of violence. This would also reduce the spread of the sexually transmitted diseases since the said women get regularly tested . The government should also lift the heavy regulation measures they have managed to put in place in order to make those who practice it does it safely and openly. This would come as a great advantage to the government because they would be able to tax them hence increasing the national revenue.
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