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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

    

Report and Recommendations in respect of Legislation, Policy and Practices
Concerning Prostitution-Related Activities

http://canada.justice.gc.ca/en/news/nr/1998/part2.html

 

Executive Summary

This report and its recommendations reflect the views of the officials who took part in the Working Group. The views expressed are not necessarily those of the federal, provincial and territorial ministers or governments.

In recent years, prostitution-related activities have become an increasingly serious concern for many communities across Canada. Two issues in particular have gained a high public profile: youth involved in prostitution [1] and the harm associated with street prostitution. [2] The problem of violence against prostitutes is also raised frequently as it is related to both of these issues.

A Working Group on Prostitution was established in 1992 by the Federal, Provincial and Territorial Deputy Ministers Responsible for Justice with a mandate to review legislation, policy and practices concerning prostitution-related activities and asked to bring forward recommendations. The jurisdictional composition of the Working Group has remained constant since 1992; however, the actual officials from those jurisdictions have changed somewhat with the passage of time. The activities have been carried out with existing resources and personnel; additional staff and specific funds were not dedicated to the Working Group.

The Working Group has reviewed relevant research and undertaken original research, studied programs and policies implemented in various sites within Canada and elsewhere, and conducted legal analysis. The Working Group also took into consideration reports issued by other groups, such as the Alberta Task Force on Children Involved in Prostitution.

At the request of ministers responsible for justice, the Working Group consulted broadly with key stakeholders. Participants in the consultations included representatives of citizens' groups, justice officials, current and former prostitutes, municipal and provincial officials, community service providers, educators, clergy, aboriginal groups, child welfare and health workers and women's advocates. Since March 1995, consultations have been completed in British Columbia, Nova Scotia, Saskatchewan, Alberta, New Brunswick, Manitoba, Ontario, Quebec and the federal jurisdiction.

An interim report of the consultations was issued by the Working Group in October 1995. Based on the results of that report, the Working Group developed preliminary recommendations which were presented to Deputy Ministers in the Fall of 1995. A number of these recommendations were acted upon by the Federal Government in Bill C-27, An Act to Amend the Criminal Code (Child Prostitution, Child Sex Tourism, Criminal Harassment and Female Genital Mutilation). The Bill was proclaimed into force on May 26, 1997.

The changes included in Bill C-27 were aimed at protecting youth from adult predators who seek children for sexual services or exploit youth involved in prostitution for economic gain. These amendments were intended to make it easier to apprehend and prosecute Canadians involved in sexual offences against children, whether in or outside Canada. A new offence of "aggravated procuring," which carries a five year minimum sentence, was also created for those who, living on the avails of a child, use violence against that child and force that child to carry on prostitution-related activities for profit. Special protections to ease the burden for young complainants testifying in court were also made available to children testifying against pimps and customers. These protections involve testimony from behind a screen, or other less intimidating methods of testifying such as using videotape or closed-circuit television. Bill C-27 also modernized some of the prostitution-related provisions of the Criminal Code.

Since Bill C-27 came into force, the Working Group has continued its work and has developed further recommendations to address both the issues of street prostitution and youth involved in prostitution.

YOUTH INVOLVED IN PROSTITUTION

A clear consensus emerged from the research and consultations. The response to the involvement of youth in prostitution must include both social intervention strategies and measures to enhance the effectiveness of the response of the criminal justice system towards these youth.

Youth involved in the sex trade are victimized disproportionately compared to other youth: they are more at risk of being robbed, beaten and sexually assaulted at the hands of pimps or customers. These young people are in need of accessible medical services, shelter, substance abuse treatment, crisis counselling and on-going support. Consultation participants expressed strong support for an interagency, multi-disciplinary approach to the provision of these services. The most effective programs reviewed by the Working Group were those in which police, Crown and child welfare officials worked in partnership to ensure the safety of the young victim/witnesses and to provide the supports necessary to promote a successful transition away from prostitution.

The criminal justice system has an important role to play in responding to those who sexually exploit youth. For the most part, the Working Group concluded that the current practices respecting sentencing of customers of youth involved in prostitution should be reviewed once more is known about the impact of the recent amendment to ss. 212(4) and the creation of
ss. 212(5), brought in by Bill C-27. Although the maximum penalties of 10 years imprisonment for pimps of adults and youths provided in ss. 212(1) reflect the seriousness of procuring offences, the Working Group believes that all procuring offences against youths should carry the same penalty of 14 years imprisonment, as is currently available for living on the avails of prostitution of a young person. As well, the Working Group supports the mandatory minimum sentence of five years for "aggravated procuring" (Bill C-27) of persons under the age of 18 because the minimum sentence is triggered by an additional element of violence threatened or used.

The Working Group concluded that the deficiencies in the criminal legislation in relation to youths relate mainly to barriers to effective enforcement of the law. A number of recommendations are made to enhance the enforceability of the law, including amendments to the Criminal Code provisions governing interception of private communications. One of the significant recommendations relates to further amending ss. 212(4) of the Criminal Code to increase its enforceability by facilitating the collection of evidence that an adult obtained sexual services from a person under 18, as youth involved in prostitution rarely consent to testify in court. Although Bill C-27 has recently amended this subsection and created ss. 212(5), the Working Group believes that the provisions should be further amended to make the offence even easier to enforce by facilitating the use of evidence from undercover police officers.

All participants in the consultation process agreed that the most effective strategies for addressing the involvement of youth in prostitution are those that would prevent them from engaging in this dangerous and damaging activity. Early intervention and educational awareness strategies, including the development of educational tools and resources, are critical for those who are closest to youth: parents, teachers and peers. Such tools should be developed to assist in identifying youth at risk and intervening in an effective manner.

STREET PROSTITUTION

S. 213 of the Criminal Code was introduced in 1985 to address the nuisance aspect of prostitution. However, during consultations it became obvious that problems related to street prostitution went beyond nuisance. The clear direction emerging from the consultations was that strategies related to street prostitution should have two major objectives: the reduction of harm to communities and the prevention of violence against prostitutes. The harm, evidenced by the noise, litter (including infected needles) and traffic, as well as by the associated substance abuse and violence, has persisted despite the availability of s. 213.

The street is a dangerous place for prostitutes. There is a relationship between violence against prostitutes, including assaults and homicides, and the venue of its occurrence. Nearly all assaults and murders of prostitutes occur while the prostitute is working on the street. Decisions relating to how street prostitution should be addressed must take into account the potential for increased violence against prostitutes.

The Working Group received varying views regarding an appropriate approach to street prostitution. Although there was consensus that some control measures are necessary to address the nuisance and harm associated with this activity, opinions varied on the regulatory mechanisms that should be adopted. Some respondents felt that the current legislation should be rigorously enforced and even enhanced; others argued for decriminalization of street prostitution.

The Working Group agreed that Criminal Code amendments are not the most appropriate mechanisms for responding to all problems associated with street prostitution. Moreover, in discussing possible amendments, there was lack of consensus on specific options, such as hybridizing s. 213 and measures to address the use of motor vehicles by customers of prostitutes.

Approaches which were unanimously supported were those pertaining to social interventions: provision of accessible services, including substance abuse programming and safe houses. Other alternatives were cautiously endorsed, including certain types of community conflict resolution and the use of the existing power of municipalities to control traffic patterns in areas where street prostitution is a problem.

Measures specifically directed at customers of street prostitution were reviewed, including "shame the johns" campaigns and "john schools." There was mixed support for these models in the consultations and by the Working Group, given the lack of evaluations of such programs.

The Criminal Code is inconsistent on the issue of prostitution. Prostitution itself is legal but most activities associated with it are not. The law is silent on when and under what conditions prostitution is allowed to occur. During the consultations, participants expressed differing views on whether or how this inconsistency should be addressed. The option of amending the Criminal Code to allow provinces and territories, through interested municipalities, to establish regulatory schemes to licence and operate prostitution establishments was of interest to some participants but received little support at the municipal level. In subsequent discussions, however, Toronto, Calgary and Quebec City indicated an intent to explore these options. Research on decriminalization models in other countries is either unavailable or inconclusive. Furthermore, the Working Group recognizes that any model of decriminalization cannot address all problems of street prostitution nor would it address the involvement of youth in prostitution.

Given the mixed response from respondents, and the lack of evidence on effective models, the Working Group was unable to recommend decriminalization of s. 213 or the repeal of the bawdy-house provisions of the Criminal Code (s. 210 and s. 211).


1.        

2.       As the main task of the Working Group was to deal with prostitution-related activities, as opposed to sexual exploitation generally, the Working Group prefers to use the expression "youth involved in prostitution", as opposed to "sexually procured youth" or "sexually exploited youth." For the purposes of this report, the term "youth" includes a person under the age of 18 unless otherwise indicated.

3.       The word "harm" has been used more frequently than the word "nuisance"in the context of the discussion concerning the problems related to street prostitution. While the term "nuisance" might be more appropriate from a legal perspective, the affected public felt that it was not broad enough to cover the real impact of street prostitution on their lives.

Part 1 - Overview

A. CONTEXT OF PROSTITUTION IN CANADA TODAY

(i) Historical Background

Prostitution per se has never been a crime in Canada; rather, it has been, and continues to be, attacked indirectly. Currently, there are many prohibitions surrounding the act of taking money for sex that, in most cases, seem to bring in an element of illegality, whatever form the practice takes. These provisions are included in the Criminal Code and include offences such as those relating to bawdy-houses (s. 210 and s. 211), procuring (s. 212), and communicating (s. 213).

These laws were developed in an ad hoc manner and reflect concerns that arose at different points in our history. Constance Backhouse [3] notes that early prostitution legislation in Canada had three main approaches -- regulation, prohibition and rehabilitation. The approaches reflected different views ranging from those of moral reformers who wanted to see prostitution eradicated to those who saw prostitutes as victims needing protection from the law. These different perspectives continue today.

(ii) Legislation on Soliciting

The early 1970s marked the inception of modern street prostitution legislation. In 1972, "Vag C" or the vagrancy law, dating from the prohibition era, was repealed. The vagrancy law held that a woman had to be able to account for her presence on the street or risk being prosecuted as a "common" prostitute. Changing times and objections from civil libertarians and women's groups necessitated the shifting focus of prostitution law from a "status offence," involving no specific behavior, to one prohibiting soliciting. S. 195.1 of the Criminal Code, which replaced the vagrancy law, stated: "Every person who solicits any person in a public place for the purpose of prostitution is guilty of a summary conviction offence." Prostitution itself was not an offence, but soliciting or publicly obtaining customers became one.

Between 1972 and 1981, courts throughout the country struggled with interpretations of what the new term "solicit" meant. Provincial courts of appeal were asked to rule as to whether a wink, a nod or a casual conversation constituted soliciting. Court decisions generally held that where a level of importuning or persuasion was exercised, soliciting had taken place.

In 1978, the Supreme Court of Canada ruled that soliciting, to be seen as a crime, had to be pressing or persistent. Subsequently, the Supreme Court also ruled that to be pressing or persistent, the conduct had to be directed toward a single potential customer and could not consist of an accumulation of advances toward different potential customers.

Court decisions also differed on whether customers, as well as prostitutes, could be charged with soliciting and on what was meant by the term "public place." Such decisions, and in particular those that found that a motor vehicle was not a public place, were seen by police forces as a critical impediment to the control of street prostitution. By the early 1980s, the soliciting section (s. 195.1) virtually ceased to be used.

(iii) The Fraser Committee

In June 1983, faced with considerable public pressure to remedy the "street prostitution problem," the Government of Canada established the Special Committee on Pornography and Prostitution to study the problem and to report solutions to the Minister of Justice. Known as the Fraser Committee, it held public and private hearings across the country in an attempt to obtain maximum input from the Canadian public as to its concerns about prostitution. The hearings illustrated that the street prostitution issue divided the Canadian public; it pitted municipal officials, police forces and citizens' groups, who felt that the Criminal Code should be strengthened to control street prostitution, against civil libertarians, women's groups and social services agents who favoured some form of decriminalization.

In May 1985, the Committee reported to the Minister of Justice. [4] Prostitution was described as a social problem that required both legal and social reforms. The Committee argued that it was the "contradictory and often self-defeating nature of the various Criminal Code sections relating to prostitution" that led to an increase in street prostitution. The Committee noted that even though prostitution is legal, the law could be used against it in most venues and/or situations. The Committee held that if prostitution is indeed legal, then the issue of "where" and "when" it can occur should be addressed.

(iv) Bill C-49: Creation of the Offence of "Communicating for the Purpose of Prostitution"

On December 20, 1985, the Government of the day repealed the soliciting law and replaced it with the "communicating law" in Bill C-49. The Government chose not to follow the direction proposed by the Special Committee and decided to replace s. 195.1 with a new provision aimed at more effective control of street prostitution. In general, this provision, now s. 213, makes criminal the communication, or the attempt to communicate with, or to stop a person in a public place for the purposes of obtaining the sexual services of a prostitute. The term "every person" means that both prostitutes and customers are liable to prosecution, while the term "public place" is defined as including a motor vehicle, thus clarifying two limitations of the former legislation.

When the legislation was introduced in the House of Commons, the then Minister of Justice, the Honourable John Crosbie, stated that the purpose behind the legislation was not an attempt to deal generally with all the legal issues connected with prostitution, but was a limited attempt to address the nuisance created by street soliciting that sought to balance the concerns of law enforcement agencies, citizens' groups, women's groups and civil libertarians. It made criminal the public activities most frequently engaged in for the purpose of offering or purchasing sexual services.

Considerable controversy and concern surrounded this new legislation. Parliament included a requirement to review the legislation within three years from the time it was enacted. On April 5, 1989, the Standing Committee on Justice and the Solicitor General was designated for that purpose.

In May 1987, studies to evaluate the effects of the communicating provision were initiated by the federal Department of Justice. Before the research was complete, the communicating law was challenged on the basis that the provisions around communicating (s. 213), or keeping of bawdy-houses (s. 210), or both, were inconsistent with the Canadian Charter of Rights and Freedoms. In May 1990, however, the Supreme Court of Canada held that, while the communicating section is an infringement on the freedom of expression, the elimination of street solicitation, and the social nuisance it creates, is a governmental objective of sufficient importance to justify a limitation on the freedom of expression guaranteed by ss. 2(b) of the Charter. The dissenting opinion found that since both communication and prostitution are lawful, the legislative response of potential imprisonment for a combination of these actions was far too drastic.

In its Fourth Report of the Standing Committee on Justice and the Solicitor General on Section 213 of the Criminal Code (Prostitution-Soliciting), released on October 4, 1990, the Standing Committee presented the results of the research on the effects of the communicating provision, as well as recommendations concerning s. 213. The results indicated that while s. 213 had not reduced levels of street prostitution in Vancouver, Toronto, Winnipeg, Calgary or Regina, some decrease was found in Montreal, Quebec City, Niagara Falls, Ottawa and Halifax. The research results indicated that the law was not meeting its objectives as its main effect in most centres had been to move street prostitutes from one downtown area to another, thus merely displacing the problem. However, as mentioned in the previous paragraph, the Supreme Court of Canada had already ruled that the communicating law was a justifiable infringement because its strengths (reducing the street nuisance associated with street prostitution) outweighed the infringement on freedom of expression.  Had the research results been available prior to the Supreme Court decision, the question of whether s. 213 is a justifiable infringement on freedom of expression might have been considered differently.

The first recommendation of the Standing Committee in respect of s. 213 was that funding be developed for agencies providing programs for prostitutes wishing to leave the street trade, and that were responsive to their needs. The Committee also recommended that the Identification of Criminals Act be amended to allow for the fingerprinting and photographing of those charged under s. 213 of the Criminal Code, whether as prostitutes or as customers. Finally, the Committee recommended that s. 213 be amended to provide sentencing judges with the discretion to prohibit persons convicted of street solicitation involving a motor vehicle, in addition to any other penalty imposed, from driving a motor vehicle for a period not to exceed three months. The last two recommendations were carried despite lack of consensus.

The federal government tabled its response to the Report in the House of Commons on March 1, 1991. The government endorsed the objective of Recommendation 1, but broadened its scope to take into account the needs of prostitutes and not only those of prostitutes wishing to leave the street. The government rejected the second recommendation of the Committee on the basis that it did not strike an appropriate balance between the societal concerns with respect to the situation of prostitutes and the objective of effective law enforcement designed to diminish, if not eradicate, the nuisance effects of street solicitation. Recommendation 3 was rejected on the basis that the powers conferred on the sentencing judge in the Criminal Code are sufficient to exercise discretion appropriately.

(v) Violence Against Prostitutes

Before the passage of Bill C-49 in 1985, a number of objections to the legislation were voiced by critics. Many social agencies and women's groups anticipated that women working in the sex trade would be more vulnerable as a result of the law, not only because they were liable to arrest and prosecution, but because that they would be more at risk of victimization by pimps and customers. It was suggested that the street prostitution trade would be displaced to new locations that offered less protection (in terms of street lighting, for example) and that women would be forced to work in less familiar, and hence more dangerous, locations to avoid apprehension.

Statistics from the Canadian Centre for Justice Statistics show that 63 known prostitutes were found murdered between 1991 and 1995 (Canadian Centre for Justice Statistics, 1997). Almost all of the murdered prostitutes were female (60 of the 63). During this period, known prostitutes were the victims in 5% of all female homicides reported (1,118 deaths). At the end of 1996, 54% of homicides involving known prostitutes reported between 1991 and 1995 remained unsolved (34 incidents). In comparison, only 20% of all homicide incidents remained unsolved when they involved victims other than known prostitutes.

Research was proposed that would attempt to better explain these homicides and other violence experienced by prostitutes since the new legislation.

(vi) Studies on Violence Against Prostitutes

Street prostitution has always been a dangerous business. In 1984, the report of the Committee on Sexual Offences against Children and Youths [5] (Badgley Committee) noted that about two thirds of the street prostitutes interviewed had been physically assaulted in the course of their work. Researchers evaluating the input of Bill C-49 in many of the cities studied (Vancouver, Calgary and Montreal) were surprised by the recurrent accounts of prostitutes being confronted by armed assailants, stabbed, threatened, beaten up and robbed. In the 1988 Calgary study, Brannigan reported that one half of the prostitutes interviewed had been victims of sexual and physical violence. Interviews conducted in 1988 in Vancouver of women involved in prostitution suggest that street prostitution is generally more dangerous than off-street work (Lowman and Fraser, 1995). A much larger proportion of respondents working on the street reported that they were robbed, sexually assaulted, beaten, strangled, kidnapped, and were more likely to be involved in a situation where a weapon was used, or were the victims of attempted murder. In contrast, the highest incidence of off-street victimization included "refused condom," "threat/intimidation" and "general harassment."

The same study found that 40% of the 65 sex trade workers interviewed carried a weapon while working on the street, whereas only 15% of the sample carried a weapon while trading sexual favours indoors. This fact may place them and/or others at risk. Between 1991 and 1995, for instance, 18 prostitutes were implicated in the deaths of 10 "tricks", one pimp, and five other individuals (Canadian Centre for Justice Statistics, 1997).

On behalf of the Federal-Provincial-Territorial Working Group on Prostitution, studies on violence against prostitutes were conducted in 1994 and 1995 in Halifax, Montreal, Toronto, Calgary, Winnipeg and Vancouver. The objective of these studies was to understand the impact of the communicating provision (s. 213) on homicide and violence against street prostitutes. The studies documented that the atmosphere on the street in each of the sites had become more tense, although a causal link between enforcement and prostitutes' deaths could not be established.

Specifically, the following was found. In Vancouver, researchers felt that the implementation of s. 213 had consolidated the criminal status of street prostitutes, forced them to work in more remote areas and pushed them into more adversarial relationships with police. This situation was believed to contribute to the murder of street prostitutes. In Calgary, prostitutes reported that the street had become a much more tense and fearful milieu. Yet increases in violent crimes against street prostitutes were mirrored by an increase in violent crimes against women in general. This provides a competing explanation. In Montreal, there was evidence that enforcement of s. 213 had resulted in prostitutes working in more remote areas, being less careful in choosing from a diminished number of customers and being further entrenched in drug use than had been reported in earlier studies.

In 1992, in Halifax, police and Crown policies resulted in successful arrests of large numbers of pimps. However, these policies inadvertently contributed to violence against street prostitutes who were convinced to testify against their pimps. Initially, in the absence of protection programs, police and Crown reported that these prostitutes were beaten by these men once they returned to their homes. As a result, witness protection programs, including the provision of safe houses, were established.

B. THE WORKING GROUP AND ITS MANDATE

The Working Group on Prostitution was established in 1992 by the Federal-Provincial-Territorial Deputy Ministers Responsible for Justice, at the suggestion of British Columbia. It is composed of officials from British Columbia (Co-chair), Alberta, Manitoba, Ontario, Nova Scotia, Justice Canada (Co-chair) and Solicitor General Canada. The jurisdictional composition of the Working Group has remained the same since 1992; however, the officials from those jurisdictions have changed somewhat with the passage of time. All of the activities have been done with existing resources and personnel; additional staff and specific funds have not been dedicated to the Working Group.

Deputy Ministers asked that the Working Group review legislation, policy and practices concerning prostitution-related activities and bring forward recommendations to address problems posed by prostitution. The Working Group was to consider the adequacy of current legislation at the federal and provincial levels; the role of municipalities; law enforcement issues; and, possible partnerships between departments of justice and other government agencies, including social service agencies.

The Federal-Provincial-Territorial Ministers Responsible for Justice subsequently requested that a focus be given to the involvement of youth in prostitution. On the basis of these instructions, the Working Group identified the following as their primary issues of concern: youth involved in prostitution, harm to neighbourhoods as a result of street prostitution and violence against prostitutes.

The Ministers also instructed the Working Group to undertake consultation with key stakeholders prior to bringing forward recommendations on these issues of concern. These consultations were deemed necessary and appropriate in order to determine whether consensus could be achieved on prostitution-related strategies. The consultations were also to aid the Working Group in determining areas in which research was advisable.

C. CONSULTATIONS, RESEARCH AND OTHER STUDIES

In March 1995, the Working Group prepared a consultation document, Dealing with Prostitution in Canada: A Consultation Paper, which served as the basis for the national consultations. The consultation paper was mainly concerned with two critical issues: the involvement of youth in prostitution and street prostitution. For both issues, the options fell into the two basic groups of enforcement and law reform options and social intervention options.

Each jurisdiction was requested to consult individually because of the lack of additional resources. The size and format of the consultations varied. [6] Most jurisdictions' consultations included representatives of citizens' groups, community service providers, educators, municipal and provincial officials, women's advocacy groups, aboriginal groups, current and former prostitutes and their advocates, child welfare and health workers, police officers and Crown Counsel.

The consultations have taken longer than expected; the most recent consultation was completed in the Fall of 1997. At the time of the writing of this report, consultations have been completed in British Columbia, Nova Scotia, Saskatchewan, Alberta, New Brunswick, Manitoba, Ontario and Quebec. The federal jurisdiction has also consulted with national organizations. Although it is regrettable that all jurisdictions have not undertaken consultations, the Working Group believes there to be an adequate cross-section of views to prepare this report.

In many areas of the country there was a clear split between the views brought forward by different stakeholders. While citizens' groups and police demanded better enforcement of the current legislation and more legislation in certain areas, many women's advocacy groups and prostitutes' groups lobbied for decriminalization of street prostitution. However, while people consulted were quite divided when it came to the criminal justice options, the social intervention options were broadly supported.

A majority of the participants agreed that some of the problems associated with prostitution could be addressed by early intervention, including social support such as health care, programs for substance abuse, counselling, crime prevention, and educational and recreational services. While this was discussed in terms of youth involvement, many respondents identified the service needs of adults as well.

A final report of the consultations as completed by December 1997 will be available shortly.

In addition to the mandated consultations, a series of studies on key issues relevant to prostitution were developed by participating jurisdictions. This research covered issues of youth involved in prostitution, men who buy sex, violence against prostitutes, and the number of people involved in street prostitution across Canada. These studies, along with reports developed by special task forces on prostitution, such as the Alberta Task Force on Children Involved in Prostitution, augmented the consultation information that served as the basis for the recommendations of the Working Group.

D. INTERIM RECOMMENDATIONS OF THE WORKING GROUP

In October 1995, following the preparation of an interim report of the consultations, the Working Group urged the federal government not to proceed with amendments to the Criminal Code before all consultations were completed. Nevertheless, since there was a strong interest by the federal government in addressing this issue quickly, the Working Group decided to develop interim recommendations on the basis of the consultations that had taken place. These recommendations, presented to Deputy Ministers in the Fall of 1995, were made on the basis of the consultations undertaken by British Columbia, Alberta, Saskatchewan, Nova Scotia, New Brunswick and the federal government. In making these recommendations, the Working Group tried to reflect those areas where there was consensus or strong support. The Working Group did not make recommendations on the basis of options that only obtained mixed support.

Briefly, the Working Group's interim recommendations emphasized the importance of training for justice personnel, the need to ensure that the youth who are involved in the sex trade are given appropriate support services, that they are able to testify safely in court against pimps and customers, and that public awareness programs are supported in order to warn youth of the dangers of the sex trade. The Working Group recommended that the offence which prohibits a person from obtaining, for consideration, the sexual services from a youth (s. 212(4)) be made more easily enforceable. The Working Group also recommended that antiquated wording within the prostitution provisions of the Criminal Code should be modernized.

A number of recommendations which focused on issues related to youth involved in prostitution have been addressed in Bill C-27, An Act to Amend the Criminal Code (Child Prostitution, Child Sex Tourism, Criminal Harassment and Female Genital Mutilation). Bill C-27 was introduced in the House of Commons on April 18, 1996. It was proclaimed into force on May 26, 1997.

The changes included in the Bill were aimed at protecting youth from adult predators who seek children for sexual services or exploit youth prostitutes for economic gain. They were intended to make it easier to apprehend and prosecute Canadians involved in sexual offences against children, whether in or outside Canada. A new offence of "aggravated procuring," which carries a five year minimum sentence, was also created for those who, living on the avails of a young person, use violence against that person and assist that person to carry on prostitution-related activities for profit. Special protections to ease the burden for young complainants testifying in court were also made available to youth testifying against customers and pimps. These protections involve testimony from behind a screen or other less intimidating methods of testifying, such as using videotape or closed-circuit television. Bill C-27 also modernizes some of the prostitution-related provisions of the Criminal Code.


3.        

4.       Canadian Advisory Council on the Status of Women. Prostitution in Canada (1984).

5.       Special Committee on Pornography and Prostitution. Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution. Ottawa: Department of Supply and Services Canada, 1985

6.       Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children. Ottawa: Department of Supply and Services Canada, 1984.

7.       It is interesting to note that the results of the consultations seemed to be affected by the way in which they were conducted. Consensus was more easily achieved in a group forum, where the police, citizens, women's advocacy groups, prostitutes, etc., were consulted at the same time. Participants at such meetings seemed to learn from one another's experience, resulting in less polarized approaches to the issues discussed.

Part II - Youth Involved in Prostitution

 

A. INTRODUCTION

Youth involved in prostitution are in many ways victimized. A combination of psycho-social and socio-economic factors, including histories of sexual abuse and poor income and employment histories, are primary contributors to the marginalization of those who engage in prostitution. Several studies have indicated that these youth are a high-risk group not only due to their sexual practices but also, as a result of their exposure to drugs and violence while on the street. [7]

(i) The Involvement in Prostitution of Homeless or Runaway Youth

There is a body of evidence that suggests a developmental pattern typical of those youth involved in prostitution: a history of family dysfunction (including substance abuse, violence and sexual abuse) [8] which leads to youth running away from home, sometimes at a very young age [9] and entering a street culture, that is, living on the street or spending a great deal of time on the street. [10] This pattern may vary between subgroups of youth. For example, many of the street youth in Saskatoon identify themselves as aboriginal, whereas street youth in Ottawa primarily identified themselves as Caucasian. Aboriginal youth appear to be less likely than non-aboriginal to cut ties with their families after entering the street culture. [11]

The victimization that may have been experienced at home is frequently part of the experience of these youth on the street. [12] Research studying homeless youth further suggests there may be a pattern of increasing involvement in criminal activity as the length of time on the street increases. [13] The criminal activity may include drug use, theft and prostitution.

There is some indication from studies of homeless youth in Vancouver, Ottawa, Saskatoon, and Toronto that street youth who turn to prostitution do so as a means of support while on the streets, although it cannot be assumed that homeless or runaway youth are inevitably involved in the sex trade. Homeless or runaway youth are sometimes known to exchange sexual services for food, lodging or gifts, or to experiment with their sexuality (e.g., young male prostitutes working on the street as a way of "coming out"). Sex for survival appears to be more of a factor for females than males: a study of Ottawa street youth found that males are more frequently able to simply stay at an acquaintance's home, whereas females are frequently forced to trade sex for food, shelter, and money. [14] These young people do not often come to the attention of the law or appear in official statistics as prostitutes.

One study of street youth in Vancouver found that 46% of "street youth" had received offers of assistance to help them work in prostitution. Approximately one-quarter of the youth reported that they had received these offers for assistance more than once or twice (McCarthy, 1995). The same research found that being exposed to others who work in prostitution has a large effect on working in the sex trade. Eighty-six percent of youth who received frequent offers of assistance did work in the sex trade, compared to 25% of youth who rarely received offers (McCarthy, 1995).

Issues specific to certain groups, such as aboriginal youth, need to be considered in reviewing the needs of these youth. The consultations suggested that many aboriginal youth who eventually joined the sex trade had left their home communities for urban areas. These youth may feel doubly alienated because they may be both homeless and in a culture that is quite different from that in their home community. This can make them particularly vulnerable to sexual exploitation by pimps and customers.

(ii) Characteristics of Youth Involved in Prostitution

Any attempts to develop a profile of youth who are involved in prostitution in Canada is difficult because of the lack of information on them. There is some evidence that many are runaways and homeless and engage in street prostitution. However, research also indicates that some engage in prostitution even though they live at home, and some work through indoor venues such as escort agencies. [15] It is widely believed that many youth who become involved in prostitution had a history of childhood sexual abuse. [16]

Estimates of the numbers of females and males who are involved in prostitution vary. Several recent studies indicate that the proportion of males may be higher than previously assumed. [17] As with studies of street youth, descriptions of the ethno-cultural identity of youth in the sex trade vary across Canada, and even within some cities. For example, consultations suggested that there is a higher level of aboriginal youth involved in prostitution in Saskatchewan and Manitoba than in other areas of the country. Within Vancouver, the estimates of aboriginal youth in the sex trade are quite high in some areas of the Downtown Eastside, but not in other areas. [18]

Similar difficulties are encountered when attempting to estimate the age at which youth enter the sex trade. Various studies and consultations with people involved in prostitution indicate that there are youth who turn their first trick as young as 6 years of age. [19] Estimates of the average age of entry into the sex trade also varies: a Victoria survey and the British Columbia consultations estimate age of entry between 14 and 15.5 years of age, however a survey of prostitutes in Vancouver found an average age of entry as 16.3 for females and 15.6 for males. [20] Other research gives higher estimates: an Ottawa survey found the average age of entry to be 17.8 years of age. [21] A survey of street prostitutes in Montreal did not report an average age of entry, but noted that one third of the 75 prostitutes interviewed had entered the sex trade before the age of 18. [22]

Perhaps one of the major problems in developing a profile of youth involved in prostitution in Canada is that there are no reliable estimates of the number of youth involved. One of the problems in identifying the number of these youth relates to the different ages that are used when referring to youth involved in prostitution. The Badgley Committee [23] defined "juvenile prostitutes" as those under 20. The Fraser Commission [24] addressed those under 18, while still others describe youth as persons under 16, especially when viewing them in the context of child welfare concerns. These distinctions may account for different explanations of what is meant by "youth involved in prostitution" and how much of it exists. The Working Group has adopted the maximum age referred to in the definition of "young person" included in the Young Offenders Act, i.e., a person under 18 years of age. This is also consistent with Parliament's view that prostitution of young persons under the age of 18 represents sexual exploitation from which these young persons should be protected, as signified by the creation of the offence contained in s. 212(4) of the Criminal Code.

Furthermore, there is disagreement over definitions of whether a youth is actually involved in prostitution. A Montreal study of street prostitution [25] reported that police defined "juvenile prostitute" more narrowly than did social workers, who tended to include any youth involved in the exchange of sex for consideration, including food, shelter or even parties in arcades. One of the major consequences of these problems with definitions is the lack of reliable statistics on the number of youth involved in prostitution.

Some people attempt to estimate youth involvement by referring to arrest statistics for s. 212.  From 1986-1990, roughly 10-15% of prostitutes arrested under the communicating provision of the Criminal Code were in the young offender age category; the majority of these were 16 or 17.  There were some reports of 14- or 15-year olds, but these were rare. The number of young persons charged has continued to decline until 1995, [26] when only 3% of charges for prostitution offences were youth from 12 to 17 years of age.

The small numbers of youth who are charged with prostitution-related offences most likely reflect police enforcement patterns as opposed to the real number of youth involved in street prostitution. Some police departments have articulated the view that youth should often be treated as victims rather than criminals and in such cases should not be arrested unless there is no other vehicle for getting them off the street and out of danger. [27] Thus, unless charges are laid under ss. 212(4) (obtaining the sexual services from a person under 18 years of age), youth involved in prostitution are virtually invisible.

The survey of youth in the Victoria area who identified themselves as sex trade workers revealed an interesting pattern, which may reflect this type of police policy in that city. Most of the 75 youth had been picked up by the police at some time in their lives (77%), however, of those who had been picked up, most were either simply taken home (47%), lectured about the dangers of the sex trade (43%) or taken to a social resource such as a shelter, social worker or clinic. Fifteen percent of the 75 youth in the sample had been arrested for communicating for the purpose of prostitution; all of them were under the age of 24. None of the youth who were under 18 when the interview occurred reported that they had been arrested for this offence. This is in contrast to arrests for other non-prostitution offences in which age was not a factor in the number of arrests.

Information from the consultations appears to support the assumption that roughly 10-15% of prostitutes on the street are youth. In British Columbia, social agencies and advocates provided estimates of the number of youth involved in prostitution both in Vancouver and in areas not typically believed to have significant prostitution problems. Of the total number of people thought to be involved in street prostitution in Vancouver in 1996 (estimated to be between 300 and 450), approximately 30 to 40 on any given night were believed to be youth. Many of these are aboriginal youth. However, as indicated before, these estimates are highly dependent upon definitions of "prostitution." The 1987 study of street prostitution in Montreal obtained estimates of the number of youth involved in prostitution ranging from 80 to over 5,000, apparently as a result of differences in definitions.

It should be noted that while this report focuses on those youth who engage in selling sex, there are also youth who become involved in other aspects of prostitution. It appears that in some jurisdictions, youth are also becoming involved in the more serious forms of prostitution-related offences, such as recruiting and pimping other youth, although the number of youth engaged in these activities is not known. [28]

(iii) Responses to Youth Involved in Prostitution

Police practices in some areas have been somewhat successful in removing youth from the street. For example, police in Montreal, Toronto, Calgary, Vancouver and Halifax have been able to connect some youth with social services effectively and, at the same time, obtain needed evidence to convict the adult customer.

Most respondents noted that, rather than being dealt with through the criminal justice system, young persons should be taken into care under provincial child welfare legislation, as a neglected child or a child in need of protection. As is the case in other provinces' child welfare legislation, British Columbia's Child, Family and Community Services Act now contains a reference to sexual exploitation as a basis for taking a youth into care. Similarly, it provides for the use of restraining orders against adults who are believed to be exploiting the child (e.g., a pimp). Alberta's Child Welfare Act is even more explicit, defining a child in need of protection as one who is sexually abused, and defining this abuse as including prostitution-related activity. Both jurisdictions have penalties of fines and incarceration for those who abuse children and youth through prostitution.

Social agencies acknowledge the difficulty in reaching young people on the street. The lure of the street, with its feeling of independence and freedom, initially may be a welcome alternative to the violence, manipulation and abuse that these youth may have been exposed to at home. However, in time, many of the abusive patterns these young persons were subject to at home return, only in a different setting - the street itself. Respondents felt that to become more effective, social agencies need to focus on preventing youth from leaving home. Programs and funds are needed to identify and address risky behaviour at an early stage. However, it is also important that crisis intervention services, such as safe houses, detoxification and substance abuse programming, and outreach workers be available to and accessible by youth involved in the sex trade. Furthermore, it must be recognized that some of these youth have particular needs as a result of their cultural background or other factors, such as health problems, and these needs must be addressed in the design of the services.

In general, the Working Group believes that the integration of enforcement efforts against customers should be coordinated with social supports for youth. An example of this model is British Columbia's Provincial Prostitution Unit, which assists police in enforcement operations targeting customers of youth. The Unit ensures that social supports are available at the time when the customer is arrested: a social worker accompanies the police and provides immediate support to the youth, talks to her about her options and where possible, ensures that she is referred to appropriate services. This immediate support not only helps ensure that the youth will feel able to testify in court, but may help her to get the supports she needs to leave the sex trade.

B. SECTION 212 OF THE CRIMINAL CODE: SENTENCES FOR PIMPS AND CUSTOMERS CONVICTED OF PROCURING YOUTH

Consultation participants were frustrated by what they perceived as the low sentences imposed on pimps and customers of youth. Two major factors were cited as explanations for that: the perceived lack of understanding of the courts for the impact of these crimes on youth and the lack of enforcement of certain Criminal Code provisions, particularly ss. 212(4).

Respondents felt that if justice personnel had better awareness regarding the exploitation and victimization resulting from prostitution, there could be more convictions and higher penalties obtained. Others pointed to the dangers associated with the courts imposing very high or mandatory minimum sentences, particularly in respect of pimps: the dangers could be passed on to youth, as pimps would have more at stake. There was also the concern that heightened criminalization of these offences could have the effect of driving youth involved in prostitution further underground.

The most common frustration expressed was that police did not have adequate powers to enforce ss. 212(4) and, as a result, many customers either were not apprehended or were charged with the less serious offence of communicating (s. 213), thus receiving light sentences (often conditional discharges or absolute discharges). [29] In certain areas of the country (e.g., Vancouver), the enforceability of ss. 212(4), before the coming into force of Bill C-27, had been identified by the community as a problem, and nearly all respondents endorsed the option of amending the subsection to make it more enforceable.

Many people felt that the current levels of sentences available for the offence of procuring youth were appropriate. Also, the actual court dispositions would be similarly appropriate if the problems just described could be addressed.

Most respondents felt that criminal sanctions against pimps and customers alone would have little effect, and that only through a multi-disciplinary approach, including increased public awareness, social interventions, and measures such as treatment or therapy for customers would a real change of behavior occur in respect of prostitution involving youth. In Saskatchewan, a mix of legal and social interventions was suggested to effectively protect the youth involved in prostitution and discourage adults from exploiting youth.

A few respondents suggested that, in any event, the provisions of the Criminal Code dealing with youth involved in prostitution should be repealed and that provisions in the Criminal Code and in provincial legislation relating to child sexual abuse should be utilized. As noted earlier, Alberta's Child Welfare Act also makes it possible to prosecute anyone for sexual abuse, including exposing a child to prostitution related activity. The penalty is $2,000 or six months in jail or both. However, in the view of the Working Group, those who prey upon youth involved in prostitution ought to be prosecuted pursuant to the Criminal Code, as the offences that it contains are more serious and have more appropriate maximum penalties.

(i) Increased Sentences and Mandatory Jail Sentences for Pimps

According to Canadian Crime Statistics for 1994, there were 328 actual incidents of procuring offences, in comparison with 389 in 1993 ( as opposed to 5095 incidents of communicating for the purpose of prostitution for 1994, and 8520 for 1993). It is not possible to obtain disaggregated data from the Uniform Crime Reporting Survey with respect to the offences enumerated in s. 212. Therefore, it is unknown what percentage of those procuring offences relates to youth involved in prostitution, as opposed to adult prostitutes. However, a review of cases from 1989 - 1993 in Vancouver found that of a total of 115 cases of pimping and procuring, 47 involved youth as victims. This could reflect both the actual number of pimps exploiting youth and a policy by Vancouver police to target those who exploit youth. [30]

A further complication arises from the fact that the police in some provinces do not lay the same charges under s. 212 as police in other provinces. For example, police in Nova Scotia resort to s. 212(1)(h) in respect of the offence of procuring a youth while that same pimping activity in other provinces more frequently attracts a charge under s. 212(2). Thus the report on offences committed under ss. 212(1), which applies equally to adult and youth involved in prostitution (with the exception of par. 212(1)(j)), does not differentiate which offences are committed in respect of youth, as distinct from adults, involved in prostitution.

In Alberta, courts have been imposing harsh sentences on pimps. Comparing data with those obtained from other jurisdictions, it appears that Alberta courts have been imposing the highest sentences for procuring offences. The lowest sentence of the four cases referred to for the years 1994-95 was three years, with the three other sentences ranging from seven to nine years. According to Nova Scotia data, the average sentence imposed for pimping offences would be closer to three years. In British Columbia, the sentences are slightly more than two years on average.

    

a) Increased Sentences

Ss. 212(1) of the Criminal Code lists ten procuring-related offences, such as knowingly concealing a person in a common bawdy-house or procuring a person to become, whether in or out of Canada, a prostitute. All of these offences, which apply in the case of both adults and youth involved in prostitution, carry a 10-year maximum sentence. Only the offence of living wholly or in part on the avails of prostitution of a person under the age of 18, prohibited under ss. 212(2), provides for a higher maximum sentence of 14 years, as opposed to 10 years. In its report on Children Involved in Prostitution, the Alberta Task Force on Children Involved in Prostitution recommended that a maximum sentence of 14 years be available for any procuring-related offence included in ss. 212(1) which involved youth.

Another issue raised during the consultations relates to the time that pimps spend in jail. Although the level of maximum penalties set out in ss. 212(1) and (2) is high when compared with other provisions of the Criminal Code and was felt to be appropriate, some respondents were concerned that the maximum sentences are rarely imposed.

In addition, reference was made to s. 743.6 of the Criminal Code which allows the judge, for listed indictable offences (Schedule 1 to the Corrections and Conditional Release Act), to order that an offender serve at least one-half of the sentence before the offender may be released on parole. The only enumerated offences involving prostitution are ss. 212(2) and ss. 212(4). As mentioned earlier, justice personnel in Nova Scotia mentioned that par. 212(1)(h) was more helpful to them than ss. 212(2) in prosecuting pimps of youth. As a consequence, they favoured adding par. 212(1)(h) to the list of scheduled offences under s. 743.6 of the Criminal Code.

In order to denounce procuring offences committed against youth in strong terms, the Working Group supports increasing the maximum sentences available for all procuring offences in respect of youth to a maximum sentence of 14 years. This would be consistent with the maximum penalty for living on the avails of a youth involved in prostitution (ss. 212(2)). Amending ss. 212(2) to effect higher maximum sentences for all procuring offences against youth would also address the concerns expressed in Nova Scotia. All procuring offences involving youth would be referred to in that subsection, which is already included in Schedule 1 to the Corrections and Conditional Release Act.

Obviously, there might be additional incarceration or other costs involved in making such an amendment. However, the Working Group found these costs difficult to assess since, as explained earlier, it is not possible to obtain disaggregated data that would track the different procuring offences separately or that would allow identification of the victim of such offences as a young person.

Recommendations:

That ss. 212(2) of the Criminal Code be amended to provide that all procuring offences listed in ss. 212(1) committed in respect of persons under the age of 18 be punishable by a maximum term of 14 years imprisonment.

That the Uniform Crime Reporting Survey provide data with respect to the offences enumerated in s. 212 of the Criminal Code so that the number and types of these offences committed in relation to persons under 18 years of age may be ascertained.

b) Mandatory Minimum Sentences

The Alberta Task Force recommended that mandatory jail sentences be imposed in respect of pimps having committed offences under ss. 212(1) and (2) in relation to youth. Such sentences were also suggested by those responding from Nova Scotia, Manitoba and Alberta. Those who advocated mandatory penalties reasoned that such penalties could serve as a deterrent for pimps of youth and could address some of the sentencing disparities that appear from one province to another.

Others disagreed, especially those responding from British Columbia, Ontario and national organizations. During the latter consultations, the following points were made in respect of mandatory sentences for prostitution-related offences. First, these sentences might increase the violence directed at youth prepared to testify against pimps. Some persons believed that there was a possibility that such provisions could be struck down by the courts as being contrary to the Canadian Charter of Rights and Freedoms, specifically the s. 12 right not to be subjected to any cruel and unusual treatment or punishment. Finally, it was felt that these sentences would remove judicial discretion upon conviction which might cause judges to be more reluctant to convict in cases where the minimum penalty would be unreasonable, such as in the case of a 19-year-old pimp procuring for the first time a 17-year-old prostitute with no violence involved.

In the midst of the consultation process, another direction emerged. As mentioned earlier, Bill C-27 introduced a provision creating a new offence of aggravated procuring with a minimum sentence of five years imprisonment. This offence, which is now contained in ss. 212(2.1) of the Criminal Code, applies in the case of a person living on the avails of prostitution in relation to a person under the age of 18, who uses violence against the person under that age and assists that person to carry on prostitution-related activities for profit. The type of mandatory sentence created in ss. 212(2.1) addresses some of the objections of those generally opposed to mandatory sentences since added elements trigger the mandatory sentence, i.e., violence towards youth and their commercial exploitation. Hopefully, this section will serve to protect youth to some degree by preventing violence or at least punishing those who already practice it. The provision is also less susceptible to Charter challenges because of these aggravating elements: it is difficult to imagine a case in which the minimum sentence would not be suitable.

Although this provision creates a mandatory minimum sentence, it does have the endorsement of the Working Group as it definitely signals the community's abhorrence of such a crime by imposing a sentence commensurate with the gravity of the offence. Both public protection and the expression of public revulsion for such conduct require that the minimum time served in a correctional system be the subject of legislative rather than judicial or administrative control.

In view of the lack of agreement among respondents and members of the Working Group for other mandatory sentences, as well as the lack of evidence that such measures would be beneficial, the Working Group could not arrive at a consensus regarding additional amendments to the Criminal Code to effect mandatory minimum sentences in relation to procuring offences involving youth.

Recommendation:

That, in view of the lack of consensus concerning mandatory minimum sentences in relation to the procuring-related offences involving youth, the Working Group makes no recommendation.

c) Increased Awareness and Training of Justice Personnel

As mentioned earlier, respondents in numerous consultations called for increased training for justice personnel on the dynamics of prostitution and, in particular, the dynamics of youth involved in prostitution. Measures could include: developing models to provide training for police, prosecutors, judges and social workers involved with these youth; encouraging provinces and territories to create strong police-Crown-child welfare partnerships to deal with prostitution cases involving youth; in cooperation with provinces and territories, developing an enforcement guide for the use of police and prosecutors in such cases; and, encouraging provincial authorities to dedicate resources to fighting child prostitution and to rigorously enforce Criminal Code provisions focusing on pimps and customers of youth.

While training may be of assistance, other steps can also be taken to improve the awareness and sensitivity of justice officials. Specifically, Crown Counsel can call expert testimony to inform the court on the dynamics of youth involved in prostitution. This approach has been recommended to enhance sentencing in such areas as domestic violence and street gangs.

British Columbia has undertaken to develop such measures. The Provincial Prostitution Unit has developed training strategies for police, Crown and judges regarding both innovative enforcement strategies, as well as the dynamics of the sex trade and the victimization of youth. There appears to be a beneficial result to these training sessions. Several police agencies have increased their investigation and enforcement efforts targeting pimps and customers of youth.

Recommendation:

That provinces and territories adopt appropriate measures to increase the awareness of justice personnel in relation to the dynamics of prostitution, in particular, the dynamics of youth involved in prostitution.

(ii) Increased Sentences and Mandatory Jail Sentences for Customers

Ss. 212(4) prohibits obtaining, for consideration, the sexual services of a person under 18. This is an indictable offence that carries a maximum penalty of five years imprisonment. Little support was expressed for increased penalties for customers of youth. Support was slightly higher for mandatory minimum sentences for these customers from, for example, respondents in Manitoba and the Alberta Task Force on Children Involved in Prostitution. The lack of enforceability of ss. 212(4) before it was amended by Bill C-27 was mentioned as the main concern as, in certain provinces, customers of youth are infrequently arrested and convicted, largely due to problems of obtaining evidence that the offence occurred.

Therefore, it was suggested that increasing penalties for this offence would have very little impact. In general, it was felt that priority should be given to making s. 212(4) more enforceable (see paragraph iv below). The Working Group considers that the five-year maximum sentence included in ss. 212(4) should be reviewed once more is known about the impact of the recent amendment to ss. 212(4) and the creation of ss. 212(5), brought in by Bill C-27.

Recommendation:

That ss. 212(4) of the Criminal Code not be amended at this time to effect increased sentences for customers of youth involved in prostitution.

(iii) Increased Penalties for Customers and Pimps of Youth Under the Age of 14

In Alberta, Manitoba and Nova Scotia, there was strong support for creating a new provision that would specify that all offences under s. 212 committed either by pimps or customers in respect of youth under the age of 14 carry an increased penalty, as distinct from similar offences committed against youth between 14 and 18 years of age. Specifically, in respect of customers, some respondents suggested that a separate offence of obtaining the sexual services of a person under 14 years of age should carry a higher penalty than the five years already provided for in ss. 212(4). Given the level of sentences currently available for the other procuring offences involving youth (i.e., 10 years and 14 years), less concern was expressed in relation to the sentences available for ss. 212(1) and (2) offences.

However, representatives of national organizations suggested that it was not appropriate to create different provisions in respect of youth under 14 years of age and youth between 14 and 18 years of age. They felt that creating additional offences was not the answer and that child welfare legislation should be resorted to in order to protect youth under 14. While there was strong support for increasing penalties for pimps and customers of youth under a certain age in British Columbia, many respondents argued against setting the age at 14, urging that the age of 16 would be more appropriate.  This led to discussions regarding the age of consent to sex.

Currently, under the Criminal Code, anyone who is 14 years of age or older can consent to most forms of non-exploitative sexual conduct without criminal consequences. Many participants in the consultation, particularly in British Columbia, felt that 14 years is too young for a person to consent to sexual activity with an adult. It is notable that under s. 159(2) the age of consent for anal intercourse is higher (18 years of age). The apparently discriminatory treatment resulting from the latter provision with respect to men, particularly gay men, has been the object of public controversy. Indeed, it has been held by the Ontario Court of Appeal in R. v. M. (C.) (1995), 98 C.C.C. (3d) 481 that this section discriminates on the basis of age contrary to s. 15 of the Charter and is therefore of no force and effect in that province.

The Criminal Code specifies the circumstances in which a child may legally consent to sexual activity and the defences that apply to some of these offences (e.g., mistake of fact). For example, consent by complainants under 14 years of age is not a defence to specified sexual offences, including sexual interference (s. 151), invitation to sexual touching (s. 152), and sexual exploitation (s. 153). The first two offences, which apply to persons under the age of 14, are punishable by no more than 10 years on indictment, or a maximum of six months on summary conviction.

The offence of sexual exploitation (s. 153) prohibits the same type of conduct set out in s. 151 and s. 152 in respect of persons from 14 to 17 years of age, where an accused is in a position of trust or authority or where an accused is a person with whom such a complainant is in a relationship of dependency. However, this offence is punishable only by a maximum penalty of five years imprisonment on indictment, or 6 months on summary conviction. In other discussions, some have suggested that the penalty under s. 153 should be raised to the same level as that available in the case of complainants under 14 years of age (s. 151 and s. 152), i.e., a maximum penalty of 10 years imprisonment. The proponents of this position argue that a higher maximum penalty should be available for the most serious cases involving children whether they are over or under 14 years of age.

The Working Group found merit in this argument and concluded that, subject to the discussion in respect of the previous recommendation, it could be more logical to raise the penalty under ss. 212(4) for customers of youth involved in prostitution to 10 years, rather than create a separate offence with a higher penalty where the complainant is under 14 years of age. This would allow the judiciary to exercise its discretion more appropriately. As is the case under s. 153, the latter course of action might imply, without justification, that the worst cases involving complainants between 14 and 18 years of age could not be as serious as those involving complainants under 14.

The issue of the age of consent to sexual activities will be considered together with sentencing for the protection of children in a paper being prepared by the federal Department of Justice for consultation in 1998. Given this factor and the controversy surrounding the appropriate age of consent to sexual activities, the Working Group proposes that the creation of any new offences in relation to youth under 14 years of age involved in prostitution be considered in the context of those consultations.

Recommendation:

As creating new offences in respect of youth under the age of 14 raises issues in connection with age of consent to sex in other sections of the Criminal Code, that the issue of increased penalties for customers and pimps of youth under the age of 14 await the federal discussion paper on sexual offences against children, the first phase of a project on children as victims of crime.

(iv) Making ss. 212(4) of the Criminal Code Easier to Enforce

Before the passage of Bill C-27, law enforcement officials were particularly emphatic in supporting any amendment to ss. 212(4) that would make the provision easier to enforce. They were concerned that the wording included in ss. 212(4) at that time limited their ability to gather evidence to support a charge, as either the youth must be willing to testify in court regarding the transaction, including giving evidence of her or his age, or there must be solid evidence from another source of the young person's age and that he or she was offered consideration for sex. Many youth are not willing to testify because of fear of reprisals from customers and pimps. Furthermore, police were not able to execute "stings" against those who would purchase sex from youth, as the use of an adult decoy would mean that there was no purchase of sex from someone under 18.

Bill C-27 attempted to make ss. 212(4) easier to enforce by replacing that provision and adding a new ss. 212(5) to provide that, in addition to being liable to punishment for obtaining or attempting to obtain the sexual services of a person under the age of 18, a person could also be prosecuted for obtaining the sexual services of a person whom the offender "believes is under the age of 18 years", thereby permitting the use of undercover operators.

Ss. 212(5) stipulates that evidence that the person from whom the sexual services were obtained was represented to the accused as being under the age of 18 is proof of the accused's belief to that effect, in the absence of evidence to the contrary. As the belief of the accused can be proven either by the person from whom the sexual services were obtained or by a witness to that effect, this allows for the use of an undercover operator who can represent himself or herself to the accused as being under the age of 18 years.

The Working Group recognizes that Bill C-27 is an improvement over the previous version of ss. 212(4). However, some members are still concerned that convictions will be difficult to obtain because of the requirement that the Crown prove the belief of the accused as to the age of the youth.  Some members of the Working Group are also of the opinion that ss. 212(5) might be found to be contrary to the Charter. In its report, the Alberta Task Force on Children Involved in Prostitution favoured broadening the criteria set out in the previous version of ss. 212(4) of the Criminal Code to include not only a person who is under the age of 18 years, but also a person who holds himself or herself out to be under the age of 18 years.

In the course of discussions in relation to ss. 212(4), an additional concern was expressed by some members in relation to the lack of clarity of the meaning of "attempting" to obtain the sexual services of a person. In summary, it was felt that removing the words "attempts to obtain" from ss. 212(4) and replacing them by the words "communicates with any person for the purpose of obtaining" (borrowed from par. 213(1)(c)) would improve the subsection and clarify the meaning of the former words, since an attempt to obtain sexual services would appear to necessarily imply communicating for that purpose.

Such a modification has two further advantages: it allows for the use of undercover police officers, as was permitted under the amendment to ss. 212(4) brought in by Bill C-27, but no evidentiary provision similar to the new ss. 212(5) would be required. The Working Group believes that this solution would help to solve the enforcement problem of ss. 212(4) and alleviate the concerns expressed by some members of the Working Group, while respecting principles of constitutional law and sound criminal law policy.

Recommendations:

That ss. 212(4) of the Criminal Code be amended to read:

212(4)
Every person who, in any place, obtains or communicates with any person for the purpose of obtaining, for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years;

and that ss. 212(5) be repealed.

(v) Youth Testifying in Court

As a final note on the issue of enforcement, the Working Group acknowledges the views of many respondents that youth should be able to testify in court without intimidation, and that measures to address this could help in ensuring that adults who sexually exploit youth are held accountable. As noted earlier, this issue has been addressed in part by the measures introduced in Bill C-27 to ease the burden for young witnesses testifying in court. That is, allowing them to testify through alternative methods such as the use of a videotape. However, based on two models that were presented during the consultations, the Working Group believes that more could be done to protect young witnesses.

Nova Scotia has developed a successful model for providing witness protection programs for youth that have assisted many of them to eventually leave the street. The Nova Scotia Task Force used a number of intermediate strategies to address the needs of potential witnesses, rather than enrolling them in a full witness-protection program. These strategies include police personally assisting witnesses to find supportive resources, assisting them in finding and moving to a new apartment, and other strategies that give the witness added security.

In November 1997, a British Columbia committee (the Victoria Task Force on Sexually Exploited Youth) recommended that police have access to a network of safe houses to protect youth testifying in pimping cases. This model would involve protocols and funding resources for transporting youth out of the community in which the crime occurred and providing them with protective housing and support. For example, a Victoria-based witness could be kept safe and hidden in another community, e.g., Prince George, for the duration of the case.

Recommendations:

That specialized witness protection strategies be developed by provincial and territorial Attorneys General and/or Ministers of Justice for youth involved in prostitution who are prepared to testify against pimps and customers under the prostitution-related sections of the Criminal Code.

That no additional legislation be introduced at this time to facilitate receiving the evidence of witnesses or complainants under the age of 18 in proceedings related to prostitution offences.

C. ALTERNATIVE MEASURES AND CHILD WELFARE STATUTES FOR YOUTH INVOLVED IN PROSTITUTION-RELATED OFFENCES

Currently, there are generally four approaches for dealing with youth involved in prostitution-related offences: police using their discretion, child welfare legislation, alternative measures under the Young Offenders Act, and prosecution of Criminal Code offences. These four approaches are not totally distinct. For example, the use of alternative measures implies that the Crown has a case which could have been prosecuted under the Criminal Code.

Youth involved in the offence of communicating for the purpose of prostitution (s. 213) are often in the unique position of committing a criminal offence while at the same time being victimized. Some argue that young persons, especially those under the age of 16 who engage in prostitution, are being sexually abused. Many of the experts consulted, as well as members of the public, some politicians and police, [31] say that the most effective and desirable approach to these youth is to treat them as persons in need of assistance as opposed to criminals.

The Working Group shares the perception that youth involved in prostitution should be seen as needing assistance but such assistance should be provided primarily through social services and child welfare legislation. One of the problems with youth justice issues is the tendency to invoke the criminal law process "to assist youth." The motive for bringing youth in contact with the criminal law should be primarily because an offence has been committed for which the youth should been held accountable. Getting help should not be the only reason youth are brought into the criminal justice system: this would unnecessarily criminalize them.

(i) Police Discretion

Even where a charge under s. 213 would be justified, the police, in many cases, have used their discretion not to charge youth. As mentioned earlier, sometimes the youth are taken home, or lectured by the police as to the harms of prostitution. In other cases, they are taken to shelters, social workers, or health clinics. [32]