The Rape Relief Files - 1986 - Prostitution: Legal History

Friday, January 17, 1986




THE PROVINCE January 17, 1986. In an article entitled "Hooker Law Working" Const. Slater reports he had not seen any prostitutes in Mt. Pleasant on his patrols through the area late Tuesday. A check by the VANCOUVER SUN newspaper also found the area hooker-free. 

By March 18, the Province was headlining "Hookers just may reclaim streets", and by June 9 Mt. Pleasant residents paraded with signs demanding that their neighbourhood be hookerfree. On March 27, the Mayor of Vancouver was back to the Attorney General to ask for another injunction -- this time against a bawdy house. 

It is clear that, at least in our city, the anti-street soliciting law is not working. Despite massive repression and brutality by the police and protests from residents, the situation has not changed, according to reports from those same residents. Women are visibly out on the streets again. 

Because of their courage and ingenuity and resistance and outright defiance, what some have called a legal sledgehammer has not succeeded. The price has been paid by women on the streets - 6 of them with their lives. Murders and disappearances and 408 arrests by July 4, 1986, according to the police. Only 30% of arrests have been johns, 708 have been prostitutes. 

On April 10, 1986, because a prostitute challenged the new law, a Vancouver provincial court judge ruled that C-49 was unconstitutional. The police put '67 cases on hold; women continued to work the streets. 

May 7, 1986. The B.C. Supreme Court ruled that the law was not unconstitutional and overturned glower court ruling. Since then, 341 arrests have been made. The police are back at the entrapment, harassment and brutal treatment of prostitutes and so are the courts. The convictions since the Supreme Court ruling in May now include probation restrictions to stay out of particular named areas of cities, and one woman was confined to her home between the hours of 6 pm and 6 am. The courts have been forced by women's necessity and women's defiance to use the injunction tactic again, in addition to fining and holding without trial. 

But women continue to solicit,several old areas and moving into new ones new ones. Women have ducked into shopping malls and skytrain stations to dodge police, and to avoid attracting police attention many have been working by themselves on many, streets. 

Although word from the provincial Attorney General to city police is to enforce arrest of men who are beating women they live with, whether or not the women want to lay charges (and the cops are doing so), they are not doing so when the woman beaten is a prostitute. 

Welfare rates have not increased, but control of recipients has. More documentation is required from MHR before a welfare cheque is issued (drivers' license, birth certificate and SIN card). A wallet full of plastic or no cheque. 

The Family Maintenance Act is being enforced. Women with children who leave men who beat them are required to sign a form giving permission for the state to locate the father and require financial support whether or not the woman wants that, and regardless of the danger that doing so puts her in. 

B.C. has more children in group homes than any other province, on a per capita basis. Social workers from the hospital delivery room to the welfare office and classroom document the (new) mother's behaviour toward the child, investigate her occupation, her living situation, and are more often than ever challenging her parenting. 

Meanwhile, there are no new start-up funds for daycare, no increased subsidies for daycare. 

We'll keep you posted ......

A simple comparison of the yellow pages for Vancouver for 1984 and 1986 show an alarming increase in the number of businesses listed under the heading "escort services" (from 19 lists in '84 to 39 in '86), as well as the size and sleaziness of the graphic and printed materials in the display ads. Generally, the '86 ads were larger and more sexualised, with women's bodies draped over them, for example. The '84 ads were clearly advertising genuine 'escort:' (or at least pretending to) and did not appear so much to be a cover for prostitution. Ads in the older directories had sales pitches directed at those who needed escorts for business. 

It is also true that some massage parlours really are all about massage -but not many anymore. 

The history of prostitution law illustrates that none of the three approaches (regulation, prohibition and rehabilitation) was successful in eliminating the trade in female sexuality because of the pervasive class, race and sex discrimination inherent in their formulation or enforcement. Most blatently, sex discrimination was evidenced in the failure to enforce these laws against men. 


About 100 chanting and banner-waving prostitutes and their supporters gathered at two Vancouver corners in the pouring rain to call for the review and repeal of the new Federal law, Bill C-49. They were part of a nation-wide street-demonstration. 

About 50 hit the streets in Toronto, 30 in downtown Calgary, 60 in Montreal, and 25 in Ottawa. 

The new law is an attempt to control street prostitution. It makes it illegal to disrupt pedestrian or vehicular traffic or to communicate or try to, with anyone to sell or purchase sex in a public place including a motor vehicle. 

Feminists and prostitutes alike are alarmed by the sweep of arrests of women in the city. Forty-seven arrests so far and, of course, the majority are women, not the johns. No known pimps have been picked up. 

Marie, the most experienced of the organisers in ASP (the Alliance for the Safety of Prostitutes), fears several effects of this new police activity.

  • the very young prostitutes who disappear from the streets cannot be traced. The government officials won't reveal whether they have been incarcerated or whether, as is the street rumour, they have been taken out of town by pimps.
  • men (johns) are being ordered to appear in court, but women accused of prostittion are being held in jail awaiting trial (and 'roughed up').
  • women who are prostituting without pimps are in a worse position again, because there is no one to go their bail.

Many progressive people have expressed opinions that this new law is blatantly against our Constitution and will be struck down. But, in the meantime, it provides police with legal cover for this harassment of prostitutes in particular, and women in general. 

The wave-in was designed to show the public that the actions for which the prostitutes are being arrested are not in themselves dangerous to anyone. 

Lots of feminists had to face just how much we were still distancing prostitutes when we agreed to stand on a corner and wave at the men.

Chronology of Canadian Prostitution Law

1839 In Lower Canada the police were authorized to apprehend "all common prostitutes or night walkers wandering in the fields, public streets or highways, not giving a satisfactory account of themselves." It was aimed solely at women and specific offensive behaviour was not a prerequisite for detention. Persons in the habit of "frequenting houses of ill fame" could also be arrested.

1851-1881 Many Canadian municipalities passed by-laws suppressing houses of prostitution, prostitutes, inmates and frequenters.

1858 After Lower Canada and Upper Canada united into the Province of Canada, this legislation extended to the United Territory. It also authorized the arrest of inmates of bawdy houses.

1865 The Contagious Diseases Act (CDA) was designed to protect military men from venereal diseases. The statute authorized the detention of diseased prostitutes for up to three months at certified hospitals. It may never have been enforced since no hospitals were ever certified to detain diseased prostitutes. The statute expired in 1870. 

1867 The newly created federal government passed an act which "prohibited all persons from procuring the defilement of women under the age of 21..." 

An Act respecting "vagrants" was also passed in which common prostitutes, keepers of bawdy houses and houses of ill-fame, frequenters of such houses and all persons who supported themselves for the most part by the avails of prostitution, were liable to arrest. 

Vagrants were condemned to a maximum of two months imprisonment, $50 or both. 

1871 An oact made it a requirement for women convicted under the Vagrancy Act more than once to serve their sentences in the Quebec Female Reformatory. Minimum sentence was five years in contrast to the maximum penalty under the Vagrancy Act of two months. 

1874 Vagrancy Act amended to increase penalties involved to a maximum of six months at hard labour. 

1880 The federal government decided io regulate against the prostitution of Indian women and "An Act to amend and consolidate the laws respecting Indians" was introduced. The act prohibited the keepers of bawdy houses from allowing Indian women prostitutes on the premises. 

1879-1899 Legislators began to enact a rash of provincial statutes to remove young girls from the custody of parents who lived in a socially unacceptable manner and to transfer them to newly-established industrial refuges for girls. 

1882 An Ontario Grand Jury recommended that imprisonment as well as a fine should be inflicted on keepers of bawdy houses, that present laws should be strictly enforced, and that "every publicity be given to those who frequented brothels." 

1984 To ensure that native Canadians could' be convicted of being brothel keepers, the Indian Act (see 1880) was amended to state specifically that keepers of "tents and wigwams," as well as houses, fell within the bawdy house provisions. 

1886 An amendment to the Indian Act provided that every Indian keeping or frequenting a disorderly house, tent or wigwam used for such purpose was also liable. The federal government repealed this provision in 1887 and added a new one meant to apply only to Indian women prostituting themselves. 

1886 An Act respecting offences against public morals and public convenience was created. It made it an offence to entice a woman to a brothel, or to knowingly conceal her. It forbade men to seduce and have illicit connections with any woman of previously chaste character. Bawdy house provisions were re-enacted with additional prohibitions against being an inmate. 

1892 Enactment of the Criminal Code. The federal government adopted a statute against procuring women for unlawful carnal connection and made it unlawful for parents or guardians to encourage the defilement of their daughters or wards. Conspiracy to defile was also prohibited. Provisions under the Indian Act were inserted into the Criminal Code but restricted to unenfranchised Indian women only.

This legislative picture would remain in place until 1972. Most of the statutory amendments in the 20th century did no more than add a few peripheral offences against prostitution-related activities and fine-tune the penalties. 

1907 Definition of a bawdy house amended to include "a house, set of rooms or place of any kind kept for the purposes of prostitution or occupied or resorted to by one or more persons for such purpose." 

1909 The penalty for procuring women increased from a maximum of two years to a maximum of five years. 

1913 The procuring provisions were extended to include everyone who "on the arrival of any woman or girl in Canada, directs her to any common bawdy house"; or who "for the purposes of gain, exercises control, direction or influence over the movements of any woman or girl in such a manner as to show that he is aiding, abetting or compelling her prostitution with any person or generally." 

1913 Men who lived off the avails of prostitution of another person were subjected to a reverse onus clause which stated: "where a male person is proved to live with or to be habitually in the company of a prostitute (...) and has no visible means of support or to live in a house of prostitution, he shall, unless he can satisfy the court to the contrary, be deemed to be living on the earnings of prostitution." 

1913 It was made clear that habitual frequenting was no longer a prerequisite to conviction: "everyone found in any disorderly house" was now to be subject to conviction. 

1913 The procuring penalty was increased to include whipping on second and subsequent convictions. 

1915 The penalty for being an inmate of a common bawdy house was increased from a maximum six months to a year; keepers and inmates of bawdy houses who had been convicted three or more times were required to serve a minimum term of three months, with a maximum of two years. 

1918 The Criminal Code was amended to create a new federal offence of "corrupting children through such behaviour as indulging in 'sexual immorality' in the home." 

1920 The procuring penalty was increased to a maximum of ten years. 

1939 The Supreme Court of Canada (The King v. Betty Cohen) found that the habitual use by one woman of her own premises for prostitution was sufficient for a conviction to be made for the offence of keeping a common bawdy house. 

1947 Maximum sentence for keepers and inmates of bawdy houses was increased to three years. 

Another new offence was added: "Everyone who knowingly takes or transports( ... ) any other person to any common bawdy house is guilty of an offence and liable on summary conviction."

1968 The Supreme Court of Canada (Patterson v. The Queen) indicated that isolated instances of prostitution were not sufficient to brand a place a common bawdy house - there must be some evidence of habitual use. 

1972 Section 175(1)(c), commonly referred to as "Vag. C" and in place since 1867, was repealed and replaced by a soliciting offence (195.1). "Every person who solicits any person in a public place for the, purpose of prostitution is guilty of an offence punishable on summary conviction." 

NOTE: The following Provincial Appeal Court and Supreme Court of Canada decisions reflect the four problems inherent in this law: What constitutes soliciting? Does the customer solicit? Can a male be a prostitute? What is a public place? 

1972 An Ontario County Court (R. v. Patterson) held that males could not be prostitutes. 

1973 The B.C. Supreme Court (R. v. Obey) held that males could be prostitutes. 

1978 The Supreme Court of Canada (R. v. Hutt) held that "soliciting" means conduct which is "pressing or persistent." 

Judgement also indicated that a car was not a public place but this is not binding because it was not one of the grounds of the appeal. 

1978 The B.C. Court of Appeal (R. v. Dudak) held that the customer could not be convicted of soliciting. They gave approval to their earlier Obey decision (1973) which said a prostitute could be either a female or male person. 

1978 The Ontario Court of Appeal (R. v. DiPaola and R. v. Palatics), held that both customer and prostitute could be convicted of soliciting (for the purpose of prostitution). 

1978 Regarding the use of a premise for prostitution, the Ontario court of appeal (R. v. Ikeda and Widjaja), held that twice in the same room on one night was not sufficient to brand a place as a common bawdy house. 

1980-1982 Montreal, Calgary, Vancouver, Niagara Falls and Halifax enacted bylaws dealing with street prostitution. The content of the by-laws was quite similar. The first, enacted in the City of Montreal in 1980, forbade remaining in public places (defined as including any place to which the public has access, by right or explicit or implicit invitation) for the purposes of prostitution, or approaching others for the same purpose in such a place. The Calgary by-law enacted in 1981 forbade being, remaining or approaching another on a street for the purpose of prostitution. Punishment was by way of substantial fines, which increased in quantum for subsequent offences. The Calgary enactment became the model for subsequent by-laws. Vancouver, Niagara Falls and Halifax enacted their by-laws in the spring of 1982. 

1981 The Montreal by-law was declared ultra vires by the Superior Court of Quebec. 

1981 The Supreme Court of Canada ruled in R. v. Whitter, R. v. Galjot that "pressing or persistent" meant repeatedly soliciting the same person. 

1982 The B.C. County Court of Cariboo (R. v. Wise) found a motor vehicle to be a public place. 

1982 The Alberta Court of Appeal (R. v. Cline) held that a person who is already a prostitute could not be procured. 

1982 The Ontario Court of Appeal (R. v. Pierce and Gollaher) held that a parking space, habitually resorted to by a prostitute in various motor vehicles belonging to her customers, was a "place" for the purposes of the definition of a bawdy house. 

1983 Bill C-127, proclaimed January 4, 1983, made several changes to the Criminal Code:

  • "prostitute" now means "a person of either sex engaging in prostitution";
  • any person (rather than "any female person") who is not a common prostitute or a person of known immoral character is protected under the procuring section;
  • any person (rather than any male person) living on the avails of prostitution is liable;
  • a person can be convicted of procuring upon the evidence of only one witness.

1983 The Supreme Court of Canada (Westendorp v. The Queen) found the Calgary by-law to be invalid and ultra vires the power of the City of Calgary. 

1983 The Justice Minister tabled in the House of Commons proposals to amend the soliciting section of the Criminal Code which would ensure that the offence applies to anyone who solicits, whether it be the prospective customer or prostitute, and which would include within the definition of a "public place" a motor vehicle in or on a public place. He also announced the creation of a special committee to make further recommendations on both prostitution and pornography. The Committee is to report its findings no later than December 31, 1984. 

Reprinted from Pornography & Prostitution (Canadian Advisory Council on the Status of Women) 

On Sally De Quadros, Margo St.James, Kathleen Barry and Marie Arrignton 

Sally had supported herself and two children for most of her life as a prostitute. When she joined our collective she was urgent to educate us and to find ways together to aid prostitutes, particularly to prevent violence to prostitutes. 

Through correspondence, Sally set up a meeting with Margo St. James, who was visiting her family in Bellingham. Lee, Sally and Eileen drove across the border to meet Margo and the women who were filming "Hookers in Davie". Margo encouraged Sally to stay close to feminists and get on with the organising. Margo was fresh, energetic and brave, but Sally and Marie gradually rejected her tactic of 'glamourising' prostitution. 

The collective suggested Joni replace Lee in the small work group. That group, now Marie, Joni and Sally, organised educational days for the collective (to reveal to each other what we knew and didn't know about prostitution). The group also began to do "street strolls" to meet the Vancouver women prostitutes. 

Joni found the strolls frightening, but continued to be helpful to Sally and Marie through the production of their first report to the Fraser Commission (a government investigation into prostitution and pornography). 

Marie first met Kathleen Barry at a NCASA Conference (U.S. rape crisis centres) She had been sent by the Canadian Association of Sexual Assault Centres of which we are a member group. Marie introduced the rest of us to Kathleen's book, "Female Sexual Slavery", which was enormously helpful in opening the dialogue about prostitution among feminists. 

Sally and Marie are now very critical of Kathleen's race/class analysis, and her reliance on police and courts, nationally and internationally. 

Marie and Sally broke away from our collective to devote full time to organ= ising an Alliance for the Safety of Prostitutes. By 1984, ASP looked to the U.S. "Pros" and the English Collective of Prostitutes for more radical, in fact revolutionary, leadership. we've followed too, a little more slowly. 

Bill C49 Mocks the Constitution by Marie Arrington 

Bill C-49, passed by the Conservative government, has set women's rights back to the days when the vagrancy law enabled police to accost women in the street and demand that they give a good accounting of themselves. I grew up knowing that I always had to carry a dollar in my pocket and keep moving constantly at a bus stop. I had to make sure that I did not look "suspicious," whatever that meant. 

What the Bill says 

Bill C-49 is replacing section 195.1 of the Criminal Code. It goes many steps backwards. It states that "every person who, in a public place or open to public view, stops or attempts to stop any motor vehicle, blocks any pedestrian traffic going into or out of any building, stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute, is guilty of an offence punishable on a summary conviction." 

"Public places" includes any place to which the public have a right of access by invitation-which means clubs, hotels, lobbies of apartment buildings, motor vehicles, etc. This law gives unprecedented powers to the police. The police decide who is working, who is attempting to sell or buy sex, who is attempting to communicate. The police can now conclude that by a woman's mannerisms, dress or behavior, she is trying to engage in prostitution. To incriminate herself, that woman does not have to say a word. The police now have the power to make the decision. A woman who has never had income from prostitution, if she should be charged, will have to prove that she is not a prostitute. 

Working conditions for prostitutes 

There is no place prostitutes can work without the threat of being charged under this law. If you work out of your own home you may be charged under the bawdy house provision in the Criminal Code. A prostitute is not presumed innocent; if charged, she will now have to prove that she was not soliciting. It is her word against that of the police officer,- and street people are all very aware that the courts take the word of an officer before that of a whore. 

Customers not charged 

We in the Association for the Safety of Prostitutes, in our fight against the Criminal Code amendments, predicted that prostitutes would be charged and tricks would not. The politicians and the vigilantes all argued that the tricks would be just as vulnerable. We argued that even if charges were laid against both, the penalties would be unequal. 

By now all our fears-possibly excepting an increased homicide rate-have become a reality. Prostitutes are being arrested in record numbers and tricks are not. As of February 19, 1986, in Vancouver 117 women has been arrested and 57 men; in Toronto 180 women and 53 men; in Calgary 22 women and 0 men. 

We do not even know if the men were all tricks or if male prostitutes are in the male total. In their charge the police do not state which are prostitues and which are customers, so we suspect that many of the males arrested are hustlers. In any event, the difference in arrests is staggering. 

Unnecessary booking 

The manner in which prostitutes are arrested compared with the treatment of the tricks also deserves to be looked at. Without exception, every prostitute arrested in Vancouver has been takendown to the police station, even though this is a summary conviction, which means that the person charged needs only to promise to appear; booking is not necessary. Only one trick had to post bond and had his name published. He was from out of province. 

All the charged prostitutes' names are available; many women were handcuffed when taken in. Some have claimed that they were "slapped around"; a few were arrested by as many as five officers. Many women were approached by undercover police and solicited by them, but the women were charged. Some women say that they were not even working but were charged anyway. The police had been taking pictures of street prostitutes for the past few years. We always claimed that it was for this purpose, but they denied it. 

Sentencing unfair 

When convicted, tricks in Vancouver have been given suspended sentences; in Niagara Falls and Halifax, $100 fines; in Winnipeg, conditional discharges. Prostitutes have been sentenced to thirty days cell time in Niagara Falls, to fines in Halifax and to cell time in Vancouver. 

Feminists, fearing that the police and the courts would repeat past inequalities in applying the law, have called for a review of C-49 after three years. We of ASP across Canada demand that this review be made within the next six months and that the law be repealed. As the evidence shows, this law is not applied equally to prostitutes and tricks, and we don't believe it ever will be. For one thing, the police are using entrapment. There are many more male police officers to be used undercover than female officers, so which sex gets trapped? 

Women the scapegoats 

In the spring, new changes will bemade to the laws concerning pornography and prostitution. Women fighting pornography have been asking both the federal and provincial governments to pass certain laws. This is like asking the fox to watch over the chicken coop. We know that the laws will be applied to the women working within the sex trade and not the men producing it or profiting from it. Women will be punished and made into outlaws. Already Mr. Crosbie has stated that juveniles will be charged, and indeed juveniles have been charged under C-49, but the added laws will punish them even more. 

Stop this insanity of punishing the poor and the vulnerable! It makes a mockery of the constitution of this country. 

Hookers' Defense Fund 

Bill C-49 is being challenged in court on constitutional grounds. Your support and contributions are needed for the fight. We have started a Hookers' Defense Fund, and contributions are needed for appeals and copies of transcripts, etc. We are also trying to raise money to help women who may be incarcerated and need to send their children to the care of family members. We have found that if prostitutes' children are apprehended by the Ministry of Human Resources, they never get to go back to their mothers, and we don't want that. Your donation is needed and appreciated. Address: Hookers' Defense Fund, c/o ASP, Main Post Office Box 2288, Vancouver, B.C. V6B 3W5.  

Priorities-March 1985


Prostitution Update 

(TORONTO) Women all across Canada have been staging demonstrations to protest Bill C-49, the new law which gives police increased powers to arrest prostitutes. 

On January 17th, women held "wave-ins," to show support for prostitutes. The wave-ins were organised by the Alliance for the Safey of Prostitutes (ASP). 

In Toronto, about 75 women gathered at the comer of Church and Carlton Streets, waving, yelling, and 'distributing pamphlets and petitions against the Bill. The Bill is considered by opponents to be a definite attack on prostitutes, because it ignores the more important issues related to prostitution, such as violence at home and on the street, and the lack of choices and money many women have. 

In selling the Bill, the government stressed its effectiveness in arresting johns as well, but in Toronto, the number of arrests show clearly that it is prostitutes who are getting arrested most often. There are also reports of police entrapment in arresting both hookers and johns. 

A big danger with Bill C-49 is the amount of power given to police. A woman who waves, nods or winks "in a public or visible place" can now be arrested if she is assumed to be selling sex. In a court, it would be the woman's word against the word of a police officer, leaving little chance for women to fight the charge. 

It has yet to be seen how the law will be defended in court, but there. isn't much cause for optimism. The law is very loosely worded, and too much of a conviction is based on police testimony. 

Unfortunately, a pattern for Bill C-49 may have started with the first two women in Toronto who pleaded guilty. Both were given relatively low fines (the fines can go as high as $2000), but, as an indication of whom this law is going to hurt, one of the prostitutes was 14 years old, and the other was a welfare mother. 

- Susan Wilkes 

(VANCOUVER) For prostitutes in Vancouver, Expo preparation has been an excuse for increased harassment. 

According to Alliance for the Safety of Prostitutes spokesperson Marie Arrington, "The whole fight that lead to Bill C-49 started in Vancouver. It was a call for a. clean-up for Expo," she said. 

Now that the legislation is in force, ASP has noted increased police violence towards hookers. These women are also having to deal with increasingly less safe conditions as they attempt to evade police. 

Arrington said the women no longer have time to decide if a potential customer is a cop, or maybe violent. The women are also no longer able to work in groups, which gives them some safety, but are working alone trying to avoid the police. "I'm doing a lot of crisis calls in the middle of the night," said Arrington. 

As well, young females have started disappearing off of the streets as pimps take them back east where there is a much higher degree of organised crime. 

Women not working as prostitutes and women of colour are also being hassled. Women who are working as prostitutes are not the only ones being hassled. And it is worse if you are not white. Arrington says recently a black woman out on a date with a white man was stopped and accused by the police of hooking. And Arrington's daughter, who was not working, was hauled into a station, accused of soliciting, and threatened with deportation. She is black and was bom in Alberta. The reprinted from Herizons increased harassment and violence will probably result in some deaths. "We're predicting women are going to be dying," said Arrington. "We don't see anything good coming out of Expo or this new law at all." 

One woman, Michele Lee McLean, is challenging her charge of soliciting under the Charter of Rights. Her lawyer, Tony Serka, is arguing that the law is vague, uncertain, that it limits freedom, is inconsistently worded in the two official languages and attempts to control traffic which is a provincial jurisdiction. 

- Marrianne van Loon

(WINNIPEG) To date, 51 persons have been charged under Bill C-49, more of them are johns than prostitutes to show that in Winnipeg the police are equal opportunity enforcers, Public sentiment, gauged in a Brandon university study, is that this legislation is unnecessarily harsh.

 - Brigitte Sutherland 

A couple of days after the passing of Bill C-49, the federal anti-street prostitution bill, a young woman called our crisis line. She said that her former pimp was at the door, harassing her, and she was frightened. Over the years, we have received many calls from prostitutes who were trying to escape either the controlling violence of a pimp, or had been beat up by a customer and didn't know where to go. As a result of this legislation, we expect an increase of calls.