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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] | 