Is Prostitution Legal in Canada? What’s the Law

Is Prostitution Legal in Canada? 

The commodification of sexual activity, otherwise known as prostitution, is dealt with under s. 286.1-5 of the Criminal Code. Under the law, the selling of sexual services by the individual providing them is not illegal. Instead, it is illegal for anyone to buy or communicate with someone for the purpose of buying sexual services. The penalties that this offence carries depend on the facts of each case. For more serious examples, an offender will be convicted of an indictable offence which carries a maximum punishment of five years imprisonment and a minimum sentence of a fine. The amount of the fine depends on where the offender tries to buy the sexual services. If the transaction occurs in or next to a public place like a park, school, church, or another place where children under 18 might reasonably be found, the fine will total $2,000 for a first offence and will be doubled in the event of an additional offence. If the offence does not occur in one of those locations, the fine will be reduced to $1,000 and $2,000 respectively.

For less serious, or summary offences, offenders face a maximum sentence of two years less a day in prison and/or a $5,000 fine. The minimum punishment is a $1,000 fine for a first offence, doubled for an additional offence if it occurs in one of the locations mentioned above. Or a $500 fine doubled for additional offences if it does not occur in those locations. Section 286.1(2) also increases the penalties faced by offenders if they attempt to buy the sexual services of someone who is under the age of 18.

Is it a Crime to Profit Off of Sexual Services? 

There are some instances where it may be illegal for someone to profit from another person selling their sexual services. However, given that the law does not punish those who sell their sexual services, it is understood that prostitutes should be allowed to take some security measures to protect themselves which may require paying people such as legitimate bodyguards or the owner of a location where someone sells their sexual services. Typically, this would refer to hotel owners or the landlords of apartments. The law is also not concerned with the families or those in legitimate living arrangements with prostitutes. With these realities in mind, the law is designed to only punish those who would exploit prostitutes, often known as pimps.

Sections 286.2-3 of the Code sets out offences that concern those people who would profit in some form from another person selling their sexual services. The law is aimed at those who abused a position of trust and authority to get a person to sell sexual services or threatened or used violence to convince someone to sell sexual services. It is also illegal for someone to provide drugs, alcohol, or other substances to a person to convince them to sell sexual services. Neither can a person recruit or control a person or a group people to sell their sexual services. Each of these factors is an example of something a pimp may do to establish or maintain control over a prostitute in exchange for profit. These crimes are meant to target those who would abuse sex workers. The selling of sexual services should only be controlled by the people providing those services on terms they are comfortable with.

What Actions are Considered Sexual Services?

Prostitution is the sale of sexual services in exchange for consideration. Consideration is either money or some form of good or other service.  A sexual service is defined by the Government of Canada’s Department of Justice as some action that is performed by the prostitute that is meant to sexually gratify the buyer. For example, say that Person A is a prostitute. They have arranged to have sexual intercourse with Person B in a hotel room for $200 over an hour. The sexual service in this example is the sexual intercourse. Services can also take other forms such as masturbation, oral sex, a lap dance, or other more graphic sexual activities.

What is Advertising of Sexual Services? 

Advertising sexual services is an offence under s. 286.4 of the Code. Anyone who knowingly advertises an offer for these services may be guilty of an indictable offence that carries a maximum prison sentence of five years or a summary offence.  This offence is designed similarly to the offences relating to profiting off the sale of another person’s sexual services. This means that prostitutes are allowed to advertise their own services. However, others cannot advertise for them, regardless of the form of the advertisement. It also means that publishers and website owners can be found guilty of this offence if they know that that their platforms have been used to advertise the sale of sexual services. The law also allows for courts to seize these advertisements or order them to be removed from the internet, regardless of who posted them.

Are There Legal Protections for Prostitutes in Canada?

 As mentioned above, the law has not criminalized a person directly selling their own sexual services. However, the sale of these services carries certain risks, to the health and well-being of the seller. This is especially true because the actions around the sale of sexual services are still criminal offences. There are also social and economic realities that may influence a person’s choice to turn to prostitution. Therefore, the law allows for prostitutes to take measures to guarantee their own safety, such as hiring bodyguards, working alongside other prostitutes, or selling their services out of a fixed location.

The law was designed with these considerations in mind after the decision of the Supreme Court of Canada in R. v. Bedford, 2013 SCC 72. In this case, several prostitutes argued that the previous version of Canada’s criminal laws regarding prostitution risked their safety by making it illegal to implement safety measures like those referenced above. This was a violation of a prostitute’s right to life, liberty, and security of the person. Part of the court’s decision relied on the fact that prostitution had been and continues to be legal. The old version of the law only made it more dangerous to participate in a legal activity. Regardless of whether the prostitute had any real choice in the matter.

The Court illustrated this point using the following analogy at paragraphs 87 and 89, “[t]he causal question is whether the impugned laws make this lawful activity more dangerous.  An analogy could be drawn to a law preventing a cyclist from wearing a helmet.  That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier.  The challenged laws relating to prostitution are no different. It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes.  The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.  The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.”