Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYPART 2: Municipal LawLicensing and sex work: In Canada, thousands of sex workers operatewithin licensed massage parlours, body rub parlours and escort services. Inmany towns and cities, these businesses are licensed under municipal bylaws.However, due to the current criminal laws that prohibit procuring,living on the avails of prostitution, and providing sexual services in “bawdyhouses,” these businesses are susceptible to criminal prosecution. They arelicensed to provide massage, escort services, or other types of services, butnot to sell sexual services. Nevertheless, it is common know-ledge that sexualservices are provided by many of Canada’s escort services, massage parloursand some exotic dance establishments.If the provisions of the Criminal Code relating to adult prostitution were repealed, the provinceswould have jurisdiction over the regulation of many aspects of prostitution. All provincial governmentsin Canada have delegated control over certain local matters to municipal governments. Specifically,the licensing of businesses and municipal land use (zoning) are currently delegated to municipalgovernments. These are areas of regulation that would become particularly relevant to the sex industryin the event of decriminalization. In countries that have undergone legal reform, such as NewZealand, battles regarding where and how many legal brothels may be established are being fought atthe municipal level. Similarly in Canada, if prostitution were to be decriminalized, municipal governmentswould control the location and nature of prostitution establishments. During the course ofthis project, sex workers in three major Western Canadian cities – Vancouver, Calgary and Edmontonwere interviewed about their experiences with current municipal regulations. In this chapter, wediscuss municipal laws in these three cities, with a focus on Vancouver.Laws governing municipal powers in B.C. and AlbertaThe laws governing municipal powers contain important provisions that will bear directly on theability for persons to set up and maintain sex industrybusinesses within a province in a decriminalized setting. For example, a municipality has the discretionto refuse a certain type of business license in the interest of limiting the number of such businessesoperating in its jurisdiction. A municipality has the discretion to set licensing fees so high thatit will be difficult or impossible for some sex workers to do business. The power of a municipalityto revoke and grant a business license, inspect businesses, set license fees and draft by-laws are all setout in the laws governing municipal powers. Provisions for challenging these powers are also set outin these laws. Municipalities have a say in how all business is conducted within their boundaries,and there will likely be no exception should the criminal laws surrounding prostitution be repealed.Because of the significant impact that municipalities will likely have on the sex trade, it is imperativethat they consult with sex workers extensively prior to imposing any by-laws on sex work.B.C. and Alberta both have provincial statues that delegate control over local matters, such aslicensing of businesses and zoning, to local governments. The B.C. Local Government Act (the “LGA”) Criminal Code, R.S.C. 2005, s.210, s.212. See e.g. R. v. Hrabchak [1999] M. J. No. 554 (Manitoba Prov Ct.) at p. 7.32
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformsets out those matters over which municipalities in B.C. may exercise jurisdiction. The B.C. CommunityCharter (the “Community Charter”), sets out additional laws with respect to municipal andregional district governance. Generally, municipal governments in B.C. create and pass by-laws inaccordance with these statutes. One exception is the City of Vancouver, where the Vancouver Charterreplaces much of the law set out in the LGA and the Community Charter. B.C.’s LGA is very similar in purpose and scope to the Alberta Municipal Government Act (the“MGA”). In Alberta, municipalities create and pass by-laws in accordance with the MGA. The MGAhas similar features to the LGA.B.C.’s Local Government ActThe main purposes of the LGA are to provide a legal framework for the establishment andcontinuation of local governments, and to set out the powers, duties and functions of local governments,including municipalities and regional districts. The LGA states that municipal governmentshave authority within towns and districts, while regional districts have authority outside of townsand cities. The LGA describes the ways in which municipal by-laws may be challenged under the law;under s. 262 of the LGA an elector of a municipality may apply to the Supreme Court to set aside allor part of a by-law for illegality. The court may award costs for or against the municipality accordingto the result of the application.The LGA contains specific provisions regarding the licensing of businesses and bestows on localgovernment the authority to charge fees for license applications and inspections. The LGA states thatno other fees may be charged besides those set out in s. 931. 10 The section contains a provision thatsafeguards against exorbitant municipal fees. Subsection 931(2) states that a fee must not exceed theestimated average costs of processing, inspection, advertising and administration, or other matters towhich the fee relates.Do the LGA and Community Charter apply in Vancouver?The LGA and the Community Charter apply throughout B.C. except where particular sections ofthese two acts have been specifically superseded by another act of the legislature such as the VancouverCharter. The Vancouver Charter specifies which sections of the LGA and the Community Charter arestill in force within the City of Vancouver. 11 The Vancouver Charter cannot be changed by City Councilbut, rather, requires an act of Provincial government to amend it. The Vancouver Charter states thatonly a handful of provisions of the LGA relating to such matters as the transfer of provincial tax dollarsand fire and security alarm systems continue to apply within the City of Vancouver. 12 The only LGAprovision relevant to prostitution that continues to apply in Vancouver is s. 931(6) that relates to feesthe municipality charges for applications and inspections.Further, the Vancouver Charter stipulates that the only provisions of the Community Charterthat continue to apply within Vancouver are those related to interest calculation, exemptions underregulations and dispute resolution, and governmental relations. 13 Thus, the vast majority of municipalpowers applicable in Vancouver are set out in the Vancouver Charter. Local Government Act, R.S.B.C. 1996, c. 323 [LGA]. Community Charter, S.B.C. 2003, c. 26. Vancouver Charter, S.B.C. 1953, c. 55. Alberta Municipal Government Act, R.S.A. 2000, c. M-26. Supra note 3 at s.1. Supra note 3 at s. 262. Supra note 3 at part 26.10 Supra note 3 at s. 931.11 Supra note 5 at s. 2.1.12 Supra note 5 at s. 2.1.13 Supra note 5 at s. 2.1.33
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