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

PIVOT LEGAL SOCIETY• Bowling alley• Auto dealer• Arcade$197 per year$128 per year$266 per year• Late night dance event $232 ‐ $929 per year 60Given the enormous discrepancy in these fees, it would appear that the city of Vancouver isattempting to channel prostitution services into escort services and body rub parlours, and away fromdating services, massage parlours, steam baths and health enhancement centres.The licensing provisions like those applicable to body rub parlours as well as the nature of thebusinesses holding such licenses make it obvious that the City is well aware it is licensing prostitution.Thus, just as the federal government has created a contradiction in the law with respect to prostitution– making it legal but almost impossible to carry out in a legal manner – so, too, have municipalgovernments, by creating provisions that allow for the licensing of businesses in which sexual servicesare offered while at the same time heavily restricting and confining those businesses in a way that canbe construed as denying that prostitution occurs in licensed premises.Challenging high licensing fees and restrictive by-lawsIn several Canadian cases, applicants have argued against disproportionately high licensing feesfor escort services and massage parlours on the basis that they are: a) discriminatory; and b) on thebasis that the high fees may have the effect of prohibiting such businesses. In several cases, applicantshave argued that such restrictive licensing by-law provisions constitute an unlawful prohibition.However, few such cases have been successful. 61 In the case of Re City of Vancouver License By-Law4957, the Vancouver by-law dealing with body-rub parlours, body painting and model studios waschallenged in B.C. Supreme Court. Among other things, the by-law prohibited nude attendants inbody-rub parlours, restricted hours of operation to before midnight, and imposed an annual licensefee substantially higher than that extracted from other businesses. There was no evidence presentedas to the economic effect of the by-law on the business of body-rub parlours generally, and there wasno evidence presented as to what motivated City Council to enact the by-law in the first place. Indelivering the judgment of the Court of Appeal, Taggart, J.A., summarized the three grounds for theplaintiff’s case against the by-law as follows:(1) Its purpose and effect was to prohibit and not merely to regulate the business of the appellants.(2) Council in enacting the by-law did not act in good faith but in an unfair, oppressive anddiscriminatory manner.(3) Council exceeded its authority in enacting the by-law in that it purported to regulatepublic and private morality. 62With respect to the evidence on the first ground of appeal, Taggart J.A. stated:While the economic effects of a by-law on those affected by it may be a relevant considerationin determining whether the by-law is prohibitory or merely regulatory, I think the evidence inthe case at Bar does not support its application because the evidence is limited to expressionsof opinion by officers of the two appellant companies as to the effects of the impugned by-lawon the appellants alone, and there is no evidence as to what the economic effects of the by-lawmay be on the class of business known as body-rub parlours. 6360 Licensing fees cited are for annual license renewal, not fees for first-time license-holders which are higher.61 See Re City of Vancouver, [1976] B.C.J. No. 330 (B.C.S.C.) (QL) [Re Vancouver]; International Escort Services Inc. v. Vancouver(City), [1988] B.C.J. No. 2475 (B.C.S.C.) (QL) [International Services}62 Re Try-San International Ltd. and City of Vancouver (1978), 83 D.L.R. (3d) 236 (QL).63 Ibid.42