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Canadian Prostitution Control Between 1914 and 1970: An Exercise in Chauvinist Reasoning

Published online by Cambridge University Press:  18 July 2014

E. Nick Larsen
Affiliation:
Department of Sociology, Brock University

Abstract

This paper conducts a feminist analysis of Canadian prostitution control during the period between 1914 and 1970. The major intent of this analysis is to outline the manner in which the prostitution-related vagrancy provisions were enforced from the beginning of the First World War through to their repeal in the early 1970s. The effects of two world wars, the eugenics movement of the 1920s, the Great Depression and the liberalized sexual mores of the 1960s on prostitution control are assessed. Throughout this analysis, it is noted that Canadian prostitution control was characterized by an underlying chauvinist bias which overrode all other factors. Furthermore, it is also noted that feminists generally declined to become involved in the prostitution debate, and that many women's groups and organizations sided with the male-dominated military and criminal justice systems.

Résumé

L'auteur présente ici une analyse féministe du contrôle de la prostitution au Canada entre 1914 et 1970. L'objectif principal de cette analyse est d'exposer de quelle manière les dispositions sur le vagabondage, intimement reliées à la prostitution, étaient appliquées au début de la Première Guerre mondiale jusqu'à l'aube des années 1970, lorsqu'elles furent abrogées. L'auteur y évalue les effets sur le contrôle de la prostitution des deux grandes guerres, du mouvement eugénique des années 1920, de la Crise économique de 1929 et de la libération sexuelle des années 1960. Tout au long de cette analyse, il est démontré qu'au Canada, le contrôle de la prostitution se caractérisait par un penchant chauviniste sous-jacent qui l'a emporté sur tous les autres facteurs. De plus, l'auteur note également le fait que les féministes ont généralement refusé de se joindre au débat sur la prostitution et que plusieurs organisations et groupes de femmes se sont rangés du côté des systèmes de justice militaire et criminel, systèmes dominés par les hommes.

Type
Research Article
Copyright
Copyright © Canadian Law and Society Association 1992

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References

1. See Bacchi, C., Liberation Deferred: The Ideas of the English Canadian Suffragettes, 1877-1915 (Toronto: University of Toronto Press, 1983)Google Scholar for an in-depth discussion of this movement.

2. See Lengermann, P. M. & Nugrugge-Bradley, J., “Contemporary Feminist Theory” in Ritzer, G., Sociological Theory (New York: Alfred Knopf, 1990)Google Scholar for a detailed discussion of contemporary feminist theory.

3. See Freeman, J., “The Feminist Debate over Prostitution Reform: Prostitutes Rights Groups, Radical Feminists and the [Im]possibility of Consent” (1989) 5 Berkeley Women's Law Journal 75Google Scholar; and Cooper, B., “Prostitution: A Feminist AnalysisVII (1989) Women's Right's Law Reporter at 99119Google Scholar for in-depth discussions of the dilemma which prostitution presents for feminists.

4. See McLaren, J., “Chasing the Social Evil: Moral Fervor and the Evolution of Canada's Prostitution Laws, 1867–1917” (1986) 1 Canadian Journal of Law and Society 125CrossRefGoogle Scholar, and Parker, G., “The Legal Regulation of Sexual Activity and the Protection of Females” (1983) 21 Osgoode Hall L.J. at 187Google Scholar for an in-depth discussion of the evolution of nineteenth-century prostitution law.

5. McLaren, “Chasing the Social Evil” ibid. at 150–53.

6. McLaren, “Chasing the Social Evil” ibid. at 151–52.

7. Gray, J., Red Lights on the Prairies (New York: Signet Books, 1971)Google Scholar.

8. Cassel, J., The Secret Plague: Venereal Disease in Canada, 1838–1939 (Toronto: University of Toronto Press, 1987) at 101–20Google Scholar.

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11. Buckley & McGinnis, ibid. at 338.

12. See Buckley & McGinnis, ibid.; Cassel, supra, note 8.

13. Women's Century, (March 1918) at 6.

14. Clarke, C. K., “Juvenile Delinquency and Mental Defect” (1920) 2 Canadian Journal of Mental Hygiene at 228Google Scholar.

15. In fact, there were at least three such royal commissions. Chaired by Mr Justice Hodgins of the Ontario Supreme Court, they are collectively referred to as the “Hodgins Inquiry.”

16. Criminal Code Amendment Act, S.C. 1919, c. 46, s. 8.

17. It should be noted that Buckley & McGinnis, supra, note 10 at 344–45 argue that its first concern was infant mortality. However, they concede that venereal disease was identified as the likely cause behind the high rates of infant mortality. Thus, it is difficult to establish with any certainty which issue was more important to the new department.

18. Hodgins, F., Report of the Royal Commission on Care and Control of the Feebleminded (Toronto: Kings Printer, 1920)Google Scholar.

19. Buckley & McGinnis, supra, note 10 at 349–52.

20. Venereal Disease Prevention Act (1918) S.A., c. 50; Venereal Disease Prevention Act (1918) S.O., c. 42.

21. Buckley & McGinnis, supra, note 10. It should be noted that McLaren, supra, note 4, argues that the police were not always so eager to enforce vice laws and that many did so only because of pressure from moralistic reformers.

22. McLaren, J. & Lowman, J., “Enforcing Canada's Prostitution Laws, 1892–1920: Rhetoric and Practice” in Friedland, M. L., ed. Securing Compliance (Toronto: University of Toronto Press, 1990) at 6162.Google Scholar

23. Buckley & McGinnis, supra, note 10.

24. See McLaren, A., Our Master Race: Eugenics in Canada, 1885–1945 (Toronto: McLelland & Stewart Ltd., 1990)CrossRefGoogle Scholar for a detailed discussion of the eugenics movement.

25. McLaren, ibid. at 68–88. Among the most vocal proponents of the link between VD, prostitution and feeble-mindedness were Dr. C. K. Clarke, Dean of Medicine at the University of Toronto, Dr. H. MacMurchy, Chief of the Division of Maternal & Child Welfare in the Federal Department of Health and Dr. C. Hastings, Chief Medical Officer for the City of Toronto.

26. Canadian Child Welfare News (15 August 1927) at 4244Google Scholar. This was the major recommendation of the British Columbia Royal Commission on Mental Hygiene which tabled its report in 1927. In fact, the Province of Alberta actually enacted legislation in 1928 providing for the enforced confinement and sterilization of mental defectives.

27. In fact, several provinces actually experimented with the establishment of such ”homes.” However, the programs were never implemented on a large scale. (Buckley & McGinnis, supra, note 10.)

28. McLaren, supra, note 25 at 72–73.

29. It should be noted that this interpretation is not supported by all writers analyzing this period. For example, Cassel argues that all nine provinces opposed the cuts in federal financing, and that most attempted to carry on with reduced (provincially funded) programs. (Cassel, supra, note 8.)

30. McLaren notes that the Canadian Eugenics Society continued to operate until the Second World War, when widespread comparisons between it and Nazi Germany raised public hostility towards eugenist arguments. However, there is little evidence of its involvement in the prostitution debate after 1930.

31. These conclusions are based on a survey of the cases reported in Canadian Criminal Cases between 1914 and 1972. This survey was conducted by the writer and consisted of an exhaustive survey of all relevant cases reported for the period. (See footnote 34 for a discussion of the limitations of this research tactic.)

32. For example, in Bedard v. the King (1918), 26 C.C.C. 99, the Quebec Court of Kings Bench argued that a women who successively became the mistress of several different men could be convicted of vagrancy by virtue of “having no visible means of support”.

33. In R. v. Quinn (1918), 30 C.C.C. 372, the Supreme Court of Ontario (Appeal Division) argued that a cab driver who introduced customers to prostitutes in return for a fee was not guilty of living off the avails or procuring since his main function was simply that of providing transportation services which were available to any other citizen. Inasmuch as the driver obtained an additional fee (from the prostitute) on top of the regular “cab fare,” the logic of the court is hard to fathom.

34. The writer is well aware of the limitations of relying on reported cases for this type of comparison since it is obvious that reported cases are only a small proportion of the total cases. However, other sources of data are not available and it can be argued that the selection criteria for reporting cases is such that their judgements will be at least partly representative of judicial attitudes during the noted period. Further, other writers have argued that reported cases exert a disproportionate influence on subsequent judicial attitudes because they are cited by lawyers more frequently. See Boyd, S., “Child Custody and Working Mothers” in Martin, S. & Mahoney, E., eds, Equality and Judicial Neutrality. (Toronto: Carswell, 1987) at 169Google Scholar.

35. R. v. Richard, (1935) 63 C.C.C. 366.

36. R. v. Zelky, (1938) 63 C.C.C. 143.

37. R. v. Davis, (1938) 3 O.W.N. 98.

38. R. v. James, (1938) 69 C.C.C. 320.

39. R. v. Novasad, (1939) 72 C.C.C. 21.

40. It should be noted that there were two separate sections dealing with living off prostitution monies. Section 216(1) of the Criminal Code prohibited living off the “avails” of prostitution while section 238(j) dealt with living off the “earnings” of prostitution. While it was well established that a male had to receive a part of the prostitute's actual earnings to sustain a charge under section 216(1), section 238(j) had been previously undefined in this regard. With this ruling, the court appeared to be creating two distinct offences, each requiring separate burdens of proof.

41. R. v. Leroy, (1940) 73 C.C.C. 288.

42. It should be noted that an earlier case under previous legislation was also decided partially on this issue. In R. v. Levecque, (1870) 30 U.C.Q.B.R. 509, Mr Justice Adam Wilson of the Court of Queens Bench of Upper Canada ruled that a prostitute “was under no necessity to give a good account of herself unless she was asked to do so.” However, this case involved other issues, namely that there was no proof that Levecque was a common prostitute or that the Barracks yard where she was found was a “public place.” While these latter points were sufficient for an acquittal, the text of Justice Wilson's judgment indicate that he was also motivated by sympathy for the unfortunate conditions faced by prostitutes. He reiterated his logic in a later case, Arscott v. Lilly & Hutchison, (1886) 11 O.R. 153, but was eventually overruled by the Ontario Court of Appeal. (See Backhouse, C., “Nineteenth-Century Prostitution Law: Reflection of a Discriminatory SocietySocial History: Histoire sociale, 18: 36 at 409–10Google Scholar for a more detailed discussion of these cases.) This appeared to mark the end of any judicial sympathy for female prostitutes until the Leroy case discussed above.

43. R. v. Johnson, (1941) 74 C.C.C. 324.

44. R. v. Cavanaugh, (1942) 77 C.C.C. 79.

45. This assertion is based on a comprehensive review of both the Canadian Criminal Cases and the provincial reports for Ontario, British Columbia and Alberta.

46. Langdon, M. E., “Female Crime in Calgary, 1914–1921” in Knafla, L., Law and Justice in a New Land (Toronto: The Carswell Company, 1986) at 293Google Scholar.

47. See Hopkins, J. C., Canada at War, 1914–1918 (Toronto: Canadian Annual Review, 1919)Google Scholar and Stacey, D. C., The Canadian Army, 1939–1945, (Ottawa: Kings Printer, 1946)Google Scholar. It should be noted that this conclusion is based on comparing separate information contained in the two references, and that neither author makes the argument contained herein.

48. Langdon, supra, note 45.

49. Prentice, A. et al. , Canadian Women: A History (Toronto: Harcourt Brace Jovanovich, 1988)Google Scholar. Also see Advisory Council on Reconstruction, Post-War Problems: Final report of the Sub-Committee, (Ottawa: Kings Printer, 1943) at 305Google Scholar.

50. Prentice et al., Canadian Women. Prentice et al. note that the attempts by the federal and provincial governments to convince women to leave the workplace were largely unsuccessful and that the percentage of women in the work force continued to rise in the post-war period.

51. R. v. Thomas, (1949) 96 C.C.C. 129.

52. R. v. Dubois, (1953) 106 C.C.C. 150.

53. While the first part of the court's logic in this case appears sound, the latter assertion probably stretched the intent of the legislation in another direction. This point will be dealt with in more detail later in this section.

54. While these cases will not be discussed in detail, the following cases can be used as examples: X v. the Queen, (1954), 109 C.C.C. 317; R. v. Purcell, (1958), 122 C.C.C. 59; R. v. Simpson, (1959), 124 C.C.C. 317; R. v. Shrimpton, (1961), 132 C.C.C. 158; R. v. the King, (1968), 4 C.C.C. 128.

55. Grey, supra, note 7.

56. This is a general point of agreement among virtually all types of feminist theory.

57. Lengermann & Nugrugge-Bradley, supra, note 2.

58. Lengermann & Nugrugge-Bradley, ibid., See also Tong, R., Women, Sex and the Law (New Jersey: Rowman & Allenhead, Publishers, 1984)Google Scholar.