One of the most controversial issues currently facing Canadians concerns the legal status of consensual adult prostitution. (2) Despite general agreement that the current prostitution laws are "unacceptable" (Report of the Subcommittee on Solicitation Laws 2006: 86) and with numerous calls for their wholesale revision, dating back to 1985 (Fraser Committee report 1985), politicians have been unable to agree on what direction law reform should take (Lowman 2011). At the heart of the impasse is their disagreement over the degree to which consensual adult prostitution should be prohibited, if at all. The ensuing research note describes public opinion about the various models of prostitution law currently under debate.
Two models of prohibition have been advanced:
The conservative version would criminalize both the buying and selling of sexual services and any third-party profit from prostitution. This is the law in the United States, with the exception of parts of Nevada.
The radical-feminist version--the "Nordic model"--would criminalize sex buying and third-party profit from prostitution, while sex selling would be legal on the grounds that the seller is a victim of male violence against women. In 1999 Sweden was the first country to adopt demand-side prohibition.
Although they are often conflated, two models of legal prostitution have been advanced:
Legalization entails the specific regulation and licensing of consensual adult prostitution in brothels or other venues, combined with various criminal prohibitions. For example, in Nevada prostitution is a criminal offence apart from in 10 rural counties where brothel prostitution is permitted and regulated.
Decriminalization would remove all references to adult prostitution from the Criminal Code. Prostitution would be regulated with generic business and other civil laws rather than creating a specific system of prostitution regulation and licensing. In 2003 New Zealand decriminalized prostitution.
Prostitution law reform in Canada gained a renewed sense of urgency in September 2010, when the Superior Court of Justice for Ontario struck down the Criminal Code sections prohibiting communicating in public for the purpose of buying or selling sex (s 213), bawdy houses (s 210), and living on the avails of prostitution of another person (s 212.(1)(j)) on the grounds that they violate several Charter rights, including a prostitute's right to security of the person (Bedford v Canada 2010). (3) Should this decision be upheld, the government will be forced either to criminalize the sale and/or the purchase of sex or empower provinces and/or municipalities to regulate consensual adult prostitution indirectly or directly.
Should Bedford v Canada be upheld, claims about public opinion will likely come to play an important part in the ensuing debate about how to revise prostitution laws. Indeed, claims about public opinion on prostitution already did play a part in that case.
In its quest to convince the Ontario Superior Court to uphold the impugned provisions, the Christian Legal Fellowship, REAL Women of Canada, and the Catholic Civil Rights League (CLF)--a coalition of Christian organizations that was granted intervener status in Bedford--claimed that public opinion surveys establish that the majority of Canadians believe that prostitution is "unacceptable" and should be prohibited. More recently, Prime Minister Stephen Harper asserted that the majority of Canadians support the prostitution laws that the Ontario Superior Court struck down, hence his government's decision to appeal that ruling.
The research note that follows evaluates these claims by reviewing the findings of seven public opinion surveys dating back to 1984 (Peat Marwick 1984; Environics 1986, 1995, 2005; Angus Reid 2009, 2010, 2011) to ascertain the extent to which Canadians believe that consensual adult prostitution should be prohibited.
CLF's rendition of public opinion survey findings
In the factum it presented to the Ontario Superior Court, CLF asserted that,
the [prostitution] laws are a reflection of society's views, soundly rooted in interfaith morality, which is that prostitution is an act that offends the conscience of ordinary Canadian citizens ... The Interveners submit that prostitution is immoral. It should be stigmatized. Prostitution victimizes anyone who engages in it. This is not prudish sensibilities: it is a fundamental societal value rooted in Charter values ... Prostitution is wrong ... It offends basic concepts of decency. Many Canadians, including some members of the Interveners ... want the government ... to make prostitution illegal entirely. (CLF factum at paras 2, 4, 7)
To support its view about public opinion, CLF relied on data it claimed came from a public opinion survey released in 1985:
Survey results released by the Special Committee on Pornography and Prostitution (Fraser Committee report) just prior to the enactment of [the communicating law] indicated that 84 per cent of the population found prostitution unacceptable. In addition, 92 per cent of Canadians believed that prostitution should remain illegal. (CLF factum at para 17)
Presumably CLF was referring to Peat Marwick's opinion survey (Peat Marwick 1984), one of 17 studies that Justice Canada funded to provide background information for the Fraser Committee and the only Canadian public opinion survey cited in the Fraser Committee report (1985). Subsequently, the CLF factum claimed that "[t]he Fraser Committee found that the exchange of sex for money was considered morally wrong and unacceptable by 62% of Canadians. Generally, people view the sale of sex as immoral, dehumanizing and inherently wrong" (CLF factum at para 22).
CLF did not explain the discrepancy between the 84% cited in paragraph 17 of its factum and the 62% cited in paragraph 22, both of which it attributed to the Fraser Committee. In fact, the Fraser Committee did not report any independent findings. Rather, it cited Peat Marwick's 1984 opinion survey which reported that 62% of its respondents deemed prostitution to be "unacceptable." The Peat Marwick report does not contain the other finding that CLF attributed to it. Perhaps that is because CLF neglected to consult the actual report. (4)
Instead of examining the original Peat Marwick survey or even the Fraser Committee's review of its findings (Fraser Committee report 1985: 513-14), CLF cited the remarks of then Minister of Justice, John Crosbie, when he addressed the House of Commons in September 1985 about the purposes of Bill C-49, the proposed street prostitution...