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

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PIVOT LEGAL SOCIETYThe Vancouver Charter contains specific provisions limiting the ability to challenge the validity ofcity by-laws. Section 148 states that a by-law or resolution duly passed by the Council in the exerciseof its powers, and in good faith, shall not be open to question in any Court, or be quashed, setaside, or declared invalid on account of the unreasonableness of its provisions. 26 Section 149 of theVancouver Charter states that any by-law or resolution passed by the Council shall be absolutely validand binding upon all parties concerned, and can only be questioned in Court within one month afterits final passing. 27Municipal governance over businesses that provide sexual services in Vancouver,Calgary and EdmontonMunicipal licensing by-laws exist in all Canadian cities. These by-laws set out the types of restrictionsthat different businesses have to meet in order to obtain a license. In general, business licensesare a way for municipalities to control the number and nature of businesses within their boundaries,ensure compliance with health and safety guidelines, and collect licensing fees for city revenue.Most Canadian cities currently license businesses that are similar, if not identical to Vancouver’sescort agencies, massage parlour services, health enhancement centres or steam baths and, in manycases, but not all, these types of businesses offer sexual services. Vancouver’s health enhancement centrelicense provides a clear example of one that is held by both businesses providing non-sexual services,such as therapeutic massage, and those providing sexual services. Vancouver’s Body Rub Parlour licenseis an example of a license that is almost exclusively held by establishments that offer sexual services.Some of these operating businesses may be described as quasi-legal: some of the services they provideare legal, such as massage or escort services, while others, by providing sexual services, offend the bawdyhouse or procuring provisions of the Criminal Code. 28Prostitution that is commonly not carried out under the auspices of a license, such as street andindependent escort work, could also become subject to municipal licensing laws in the event of legalreform. The potential for licensing of these types of prostitution will be discussed later in this report.Most Canadian by-laws regulating the types of businesses that often provide sexual servicescontain restrictive provisions that can only be interpreted as an attempt to control the provision ofsexual services while not banning prostitution outright. Municipalities in Canada do not have theauthority to explicitly prohibit street-level prostitution. 29 Under the Canadian Constitution, municipalitiesdo not have the authority to impose prohibitions for a “moral” purpose but they may regulatematters within their jurisdiction, such as local land use and the licensing of local businesses. In Westendorpv. The Queen, a Supreme Court of Canada decision that applies to all of Canada, the Courtheld that a by-law may be found to be unconstitutional where it creates an offence that is an attemptto control or punish street prostitution. Westendorp involved a provision with a stated purpose ofprohibiting street prostitution. The by-law stated: “Being a By-law of The City of Calgary to AmendBy-law Number 9022 to Prohibit Use of City Streets by those Approaching or being Approached byOthers for the Purpose of Prostitution.” Further, the by-law at issue in Westendorp explicitly created anoffence relating to prostitution:(2) No person shall be or remain on a street for the purpose of prostitution.(3) No person shall approach another person on a street for the purpose of prostitution.(4) Any person contravening the provisions of this section is guilty of an offence and is liableon summary conviction. 3026 Supra note 5 at s. 148.27 Supra note 5 at s. 14928 Supra note 1.29 Westendorp v. The Queen, [1983] 1 S.C.R. 43 (QL) [Westendorp].30 Ibid.36
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformWhile the precedent set in Westendorp protects sex workers from municipal attempts to ban streetlevelsex work, municipalities have still been allowed a significant degree of control over street-levelprostitution.The by-laws in Vancouver, Calgary and Edmonton are enforced differently and place differenttypes of restrictions on sex workers, some more onerous than others. This raises different issues for thesex workers operating within such licensing schemes. These by-laws and their impact on sex workersare examined in more detail below.Vancouver’s licensing by-lawsAny person carrying on a business, trade, profession or other occupation must have a valid businesslicense under the Vancouver Charter. 31 The terms “business,” “trade,” “profession,” and “occupation”are not defined in the Vancouver Charter but, in practice, they are applied very broadly toencompass everything from sole proprietorships operated out of the home, to street vendors, topersons operating web businesses, to persons operating large-scale enterprises. Clearly, this provisionwould encompass all forms of prostitution if it were to be fully decriminalized.In Vancouver, a by-law breach normally results in a fine as punishment. Fines can range between$100 and $2,000.The licensing of businesses in Vancouver is governed by one central by-law called the VancouverLicense By-law, No. 4450 (the “Vancouver By-law”). 32 The Vancouver By-law sets out the requirementsand fees to obtain a license for various types of businesses, including those commonly held by sexindustry employers, and sets out restrictions on various types of business.To obtain a business license, business owners and operators must fill out an application for a license,submit it in person at City Hall, and pay an annual licensing fee. 33 All Vancouver business licensesexpire on December 31 of each year and, therefore, must be renewed annually. 34 Employees do nothave to obtain a business license; rather, only the owner or operator of the business must obtain thelicense. The license application requires the applicant to provide their name, address, a descriptionof the business, and property address of the proposed business as set out in the Vancouver By-law. 35All persons applying for licenses are automatically subject to a criminal record check by the CityInspector. 36 The Inspector can refuse to grant a license to a person because of their criminal record. Aperson applying for a business license must present at City Hall a valid B.C. identification or Canadianpassport in order to obtain a license.Businesses that provide sexual services commonly hold Body Rub Parlour, Dating Service,Health Enhancement Centre, Social Escort Service, Steam Bath, and Massage Parlour businesslicenses; however, not all massage parlours, health enhancement centres and steam baths are frontsfor prostitution. During the course of the project we interviewed sex workers operating in businessesholding Health Enhancement Centre, Social Escort Service and Dating Service licenses under theVancouver By-law. Given that each of these categories may provide fronts for prostitution, sex workerscommented on all five types of licenses. Many of these licensing provisions contain a wide range ofrestrictions. In the event that the criminal laws related to prostitution are repealed, it is likely thatmunicipalities would revise or even eliminate such restrictions.31 Supra note 5 at s. 272(1)(a).32 City of Vancouver, By-law No. 4450, License By-Law (23 September 1969) [Vancouver By-Law)33 Supra note 32 at s. 3(2).34 Supra note 32 at s. 3(2).35 Supra note 32 at s. 4(3).36 Supra note 32 at s. 4(2).37
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