Are you wondering if prostitution is legal in Canada? The evolution of Canadian law and public policy surrounding sex work and prostitution has been a long and winding road to reform after decades of advocacy, litigation, and public debate that eventually landed the issue in the Supreme Court.

But for a very long time, selling sexual services wasn’t in itself illegal, and Canada’s Criminal Code didn’t explicitly prohibit it but rather criminalized certain activities related to the act, such as living off the avails and solicitation. 

However, despite significant changes to the law in Canada over the last couple of decades, confusion still abounds about how Canadian law treats sex workers and the practice of prostitution. The question is, of course, is prostitution legal in Canada?

Selling sex wasn’t a crime in Canada

The answer to that question is far from simple, with many confusing grey areas that are somewhat difficult to explain concisely, mainly because the act of selling sex wasn’t a crime in Canada under the Criminal Code, but rather several other acts that were said to be “intertwined” with prostitution. 

It was in this grey area where escort agencies and erotic massage parlours were allowed to operate in plain sight, advertising in newspapers and magazines before the internet supplanted and replaced print as the go-to forum for advertising sexual services.

The challenge for law enforcement and policymakers, of course, was trying to regulate and stamp out an activity that was both ubiquitous and simultaneously condemned as immoral, leading to widespread stigmatization and marginalization of a historically vulnerable societal group that was frequently targeted by violence, abuse, and harassment.  

The constitutional challenge of Canada’s prostitution laws 

Canada’s laws against prostitution faced a reckoning when a trio of current and former sex workers filed a court challenge, claiming certain sections of the Criminal Code were unconstitutional by depriving those engaged in prostitution of their Charter rights of life, liberty, and the security of the person.

Before the constitutional challenge, the Criminal Code of Canada made it a criminal offence to operate a brothel or “bawdy house” while prohibiting people from making a living as a prostitute or “on the avails of prostitution.”

It was a crime to solicit sexual services in public or communicate “for prostitution.” 

In their constitutional challenge to these provisions, the sex worker applicants in the case claimed the Criminal Code’s prohibitions on these activities made their profession more dangerous than need be, effectively disallowing them from making themselves safer by hiring a security guard and screening prospective clients to minimize the threat of potential violence.    

Crime to sell sex in Canada for money

When their case came before the Supreme Court of Canada in 2013, they scored a massive victory when the court agreed in what is known as the Bedford decision that Canada’s prostitution laws violated the Charter of Rights and Freedoms.

The Supreme Court’s ruling opens with a matter-of-fact statement that it wasn’t a crime to sell sex in Canada for money but rather to keep a brothel, live off the proceeds, or communicate in a public place about a “proposed act of prostitution.” 

In striking down three “impugned provisions” from the Criminal Code, the court ruled that the Canadian government had one year from the ruling date to make the laws consistent with the constitutional rights guaranteed by the Charter. 

What the Criminal Code Says about the sex trade

While the sections in the Criminal Code were designed to stop the “public nuisance” of street prostitution and protect prostitutes from violence and exploitation, they simply “did not pass Charter muster.” The Supreme Court panel found this because the code’s provisions had the effect of “depriving” prostitutes of their Constitutional right to security of the person.

The Supreme Court panel of justices found that the Criminal Code’s prohibitions on prostitution-adjacent activities had the effect of heightening the risks faced by sex workers who were, under Canadian law, engaged in a “legal activity.” 

They found the Code’s anti-prostitution provisions went too far by not just imposing certain conditions on how prostitutes could do business but went a “critical step further” and unconstitutionally caused the conditions in which sex workers operate to be more dangerous by disallowing people engaged in sex work from taking steps to protect themselves in the face of those risks legally. 

Harms suffered by prostitutes

The court ruled that the laws prohibiting prostitution-related activities made the risks associated with it even more significant, regardless of whether someone chose to become a prostitute or whether their pimps or johns were violent or the “immediate source of the harms suffered by prostitutes.”

Just because they chose or were forced by circumstance into prostitution, the Supreme Court panel reasoned, the potential to face violence from clients did not make the government and the laws they pass any less responsible for increasing the potential vulnerability of those engaged in prostitution to harm violence and ill-treatment.   

The applicants in the Bedford case successfully argued that Canada’s prostitution laws violated the principles of fundamental justice, offending the very foundation of the “basic values underpinning our constitutional order,” the court found.

The provisions in the criminal code against keeping a brothel or bawdy house, for one, were “grossly disproportionate” to achieving the goal of lessening or preventing the so-called “public nuisance” that prostitution was said to have caused. 

Prostitution laws in Canada

They essentially pushed the activity onto the streets rather than allowing prostitutes to work in indoor locations where they’d likely be safer, which the court found was a grossly disproportionate attempt to deter prostitution from disrupting communities with their activities.

The court recognized that Canada’s parliament is free to outlaw or regulate “nuisances,” but not at the expense of prostitutes by making laws that harmed their “health, safety, and lives.” 

As for the Criminal Code’s prohibition on living on the proceeds or “avails” of prostitution, the court recognized that this provision was mainly targeted against pimps and their conduct, which the ruling called bother “parasitic” and “exploitive.”

The Supreme Court of Canada found the law went too far beyond punishing those who used violence and intimidation against prostitutes as a means of control and exploitation.

Is prostitution legal in Canada?

Those who lived on the proceeds generated by sex work, for instance, could be either exploitive pimps or others who potentially could protect sex workers and make them safer and more secure, such as hired drivers, managers, or bodyguards.

Canada’s prostitution laws, as they stood before the Bedford case, were found to have cast too broad of a dragnet that could’ve ensnared anyone from an accountant to a receptionist, leading the court to rule that the law was “consequently overbroad.”  

The third element of Canada’s criminal laws against prostitution, the public communication provision, was also eliminated by the Bedford decision.

The court found that while the law aimed to push prostitution off of public streets, the public communication prohibition was “grossly disproportionate” to the mere “possibility” of the public nuisance of street-level prostitution activities.

By preventing public communication, the court found the Criminal Code negatively impacted the safety of street-level sex workers who were essentially criminally prohibited from vetting clients who could be drunk on drugs or potentially violent. 

Sex workers versus the government

The respondents in the case included the Attorneys General of Ontario and Canada, and more than a dozen intervenors, including legal advocacy groups, religious organizations, and HIV/AIDS nonprofits, participated in the Supreme Court case. 

The Attorneys General, in their arguments, didn’t try to convince the court that the potential charter violations of Canada’s prostitution laws were justified but did try to preserve parts of the Criminal Code, including the prohibition on living on the avails of prostitution. They claimed it was justified and “drafted broadly … to capture all exploitive relationships.”

Selling sex in Canada (prostitution)

But the law, as it was written, the justices found, covered virtually all business-like relationships that people had with sex workers, including accountants or even receptionists and drivers.

With this in mind, the Supreme Court found that the law’s attempt to protect prostitutes from exploitation “outweighed” its other effect, which prevented prostitutes from taking protective steps to make their jobs safer in ways that could “possibly save their lives.”  

But while the court struck down the provisions of the Code, it didn’t mean that Canada’s parliament was disallowed from passing laws regulating prostitution, which the Supreme Court’s ruling called a “complex and delicate matter” needing time and consideration to fix.

In its ruling on the Bedford case, the Supreme Court found the current laws invalid. Still, it suspended the finding for 12 months to give the federal government a year to “devise a new approach” to regulating how and where prostitution could take place in Canada. 

Is prostitution legal in Canada?

In response to the Supreme Court of Canada’s ruling striking down three key prostitution provisions in the country’s criminal code, the federal government responded by passing Bill C-36, the Protection of Communities and Exploited Persons Act.

Coming into force in December 2014, the law criminalized prostitution transactions but introduced a new offence that only outlawed the buying of sexual services, but not the selling of them. 

The act of buying or communicating about the buying of sexual services was made a criminal offence “for the first time in Canadian criminal law” with the passage of C-36. The crime now carries up to five years in prison, as well as a mandatory minimum fine that increases if someone is caught in the act near a school, park, playground, daycare, or church.

The potential prison sentence doubles to 10 years in jail if someone gets convicted of buying sexual services from someone under 18 years old. The new law even applies to webcam services if purchased online. 

Purchase of sexual services

The new law did not make it a crime to sell sexual services. It allowed those who offered them to take safety measures that the old laws used to prohibit, including offering sexual services in “fixed indoor locations,” as well as hiring security guards.

Oddly, the new law outlawed buyers of sexual services but not the sellers and aimed to reduce both the supply and demand for them. Specifically, the new laws criminalized “obtaining a sexual service for consideration,” which could mean paying someone in cash or even with drugs and alcohol. 

The list of acts includes anything that could be “sexually stimulating or gratifying,” such as lap-dancing or simulated intercourse and “sadomasochistic activities.” 

Bill C-36 outlawed advertising sexual services but also sought to protect people who advertise their services. If someone else, such as the owners of a massage parlour or strip club, advertised sexual services to others, the bill made it a criminal offence to do so, also applying to publishers and website owners.

Under the act, courts are also allowed to issue seizure orders for any materials containing ads for sexual service, including removing ads from the internet “regardless of who posted them.”

New sex industry laws

In other words, the new laws didn’t legalize and regulate prostitution but rather criminalized those who engaged in buying sexual services. The Canadian government rationalized this decision by citing international research that showed that places with decriminalized or legal prostitution had higher rates of human trafficking and bigger overall sex industries.

Recognizing that those who go into prostitution are often from vulnerable and historically marginalized communities, such as Aboriginal women, the Canadian government sought to punish those who fuel the demand for sex workers rather than sex workers themselves.

In targeting the demand, the new law sought to condemn the practice of men having “paid access to female bodies,” a demeaning practice that treats the human body as a “commodity to be bought and sold.” 

Canadian Alliance for Sex Work Law Reform

But seven years later, the Canadian Alliance for Sex Work Law Reform launched a constitutional challenge to the Protection of Communities and Exploited Persons Act, claiming the new laws were just as bad as the old ones by reproducing the harms the Supreme Court’s ruling sought to address.

The alliance, made up of more than two dozen other groups from across Canada, wants to strike down the PCPEA for its prohibitions on communicating for the sale of sexual services, claiming it’s an essential element of negotiations between sex workers and clients to establish proper consent.

By criminalizing their clients, sex worker advocates claim their work is still stigmatized and makes them vulnerable to discrimination, exploitation, and violence.  

Prostitution Legality in Canada’s Conclusion

Canada’s current legal regime regulating and criminalizing prostitution remains in place for now. But like the Bedford case nearly a decade ago, Canada’s parliament has to be mindful of the possibility that the new laws will be struck down by the Supreme Court of Canada just as the old ones were.

While the latest challenge has yet to be litigated, Canada’s prostitution laws remain in place and indeed criminalize the buyers of sexual services under what’s commonly referred to as the Nordic model.

Depending on what the courts find in the latest challenge to the country’s prostitution laws, it may call for uniquely made-in-Canada solutions since policymakers are bound to adhere to the Charter of Rights and Freedoms, which applies to everyone, regardless of their profession. 

We hope you found this guide on if prostitution is legal in Canada helpful.