The Criminal Code of Canada prohibits soliciting for the purposes of prostitution in the following words:
Section 195.1. Every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence punishable on summary conviction.
The problem of understanding the exact import of this proscription centres around two questions:
- what counts as a public place?, and
- what constitutes soliciting?
The Supreme Court of Canada in Hutt v. The Queen addressed both of these questions. With respect to the former, the court first noted that public place is defined for the purpose of Part V of theCriminal Code in s. 179 as follows: “public place includes any place to which the public have access as by right or by invitation, express or implied”. The justice offering the judgement of the court then went on to comment:
I am most strongly of the opinion that this (the arresting) officer’s automobile was not such a public place but was, on the other hand, a private place of which he had the sole control. To interpret the words otherwise would mean that if I were to invite anyone to enter my own home would be a public place.
With respect to the latter question, the court after having taken note of the fact that the Criminal Codedoes not define solicit, went on to insist that any act of solicitation must be “pressing or persistent”.
The recently proposed Bill C-51 attempts to reverse the law on both of these issues.
It recommends that s.195.1 be immediately followed by the following: s. 195.2. For greater certainty,
- “prostitution” in section 195.1 means sexual conduct performed by either a male or female person;
- “public place” in section 195.1 any means on a public place; and
- soliciting need not be pressing or persistent conduct in order to constitute an offence under 195.1.
I believe this to be a retrograde step, and that careful consideration will reveal not only that it should be resisted, but that s. 195.1 should be removed from the Criminal Code entirely. I will be concerned chiefly with provisions (b) and (c) if they can be shown to be unwarranted, provision (a) has the effect of making evil more widespread. It would be like changing a law that only prohibited female blacks from voting to one that prohibited male blacks from doing so as well.
The first thing to be noticed is that neither being a prostitute, nor engaging in an act of prostitution, is a criminal offence. As such, it would seem that the law would be justified in making it difficult for prostitutes to secure clients only if either (a) the securing of the clients was, in itself, an evil which should be controlled by law, or (b) prostitution were to be declared illegal.
,br>Now certainly a case could be made out for saying that soliciting in a public place for purposes of prostitution ought to be controllable by law if by soliciting is meant “confronting a person in a pressing or persistent manner”, for that constitutes a public nuisance.
But this does nothing to justify the prohibitive regulation when the confrontation is neither pressing nor persistent. The only thing that could be urged in support of such a restriction is that the mere act of offering sex for money is so offensive as to be criminally proscribable. However if we prohibit such acts for this reason we embrace the principle that conduct which is deeply offensive to the public at large falls within the scope of the law. That principle is not only dangerous to liberty in that it exposes anyone who deviates from the shared morality of a community to criminal penalties, but also is inconsistent with the recommendations of the Canadian Committee on Corrections and the entire liberal tradition. For both that report and that tradition require that no act should be criminally prohibited unless it does or threatens substantial harm to others. And certainly offering sexual services in a manner that is neither pressing nor persistent does not do that.
Thus it would seem that there are no grounds for supposing any attempt to secure clients for the purposes of prostitution which is neither pressing nor persistent is an evil which should be controlled by law. Accordingly, if there is to be any justification for the provisions in question of Bill C-51, those provisions must be supplemented by a declaration of the criminality of prostitution: it must be declared criminal either to be a prostitute or to engage in a act of prostitution. If this is not done, the law is the peculiar position of prohibiting a legitimate business from securing clients in a manner that is not in itself injurious to anyone.
It does not seem possible to provide any justification for making being a prostitute criminal. For, except in cases in which being a certain type of person is a serious danger to others—which is plainly not so in the case of being a prostitute”only acts can be properly made criminal.
And, further, according to the Canadian Committee on Corrections, the only kind of acts which can be properly made criminal are those which do or threaten serious harm to others. Thus the whole matter turns on whether nor not it can be shown that acts of prostitution do or threaten serious harm to others. It is also to be insisted here that one cannot simply gesture towards things like injury to minors or invitation to criminal elements to fill this need. These kinds of considerations are certainly relevant, but one who wants to rest the law on them must demonstrate (rather than merely believe) them to be causally linked with acts of prostitution; and, moreover, causally linked in a way in which government liquor outlets or professional sports are not. I do not believe that such a demonstration can be performed; certainly the law has not even attempted it.
If the above is right, not only is there no justification for recommendations (b) and (c) of Bill C-51, but also there is no justification for singling out soliciting for purposes of prostitution for special mention as s. 195.1 of the Criminal Code does. For insofar as soliciting is neither pressing nor persistent, a prostitute must be allowed to secure clients in the same way as any other legitimate business is allowed to. And insofar as it is pressing or persistent, other businesses must be liable to criminal prosecution in the same way in which a prostitute is. In either case, reference to prostitution is immaterial and, indeed, discriminatory.
In sum, the recommendations of this brief are two:
- S. 195.1 of the Criminal Code ought not to be supplemented by S. 195.2 of Bill C-51,
- S. 195.1 of the Criminal Code ought to be repealed.