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Chasing the Social Evil: Moral Fervour and the Evolution of Canada's Prostitution Laws, 1867-1917
Published online by Cambridge University Press: 18 July 2014
Extract
[T]he ordinary citizen who detests exploited prostitution has no unbalanced desire for legislation at any price. He or she is prepared to face the inescapable truth that the causes of this evil cannot be touched by law, however perfectly conceived, however perfectly administered. Those who are obsessed by a frenzy for legislative measures achieve contentment and futility. The slow way is the only way of advance here: education, a changed social outlook, a gradual reorganization of economic conditions, these may remove such causes as are within our control. And not the wisest of us can prophesy but that we shall find the primary cause will baffle us at the end. Teresa Billington-Greig
The relationship between criminal law and morality is one which has always evoked strong feelings. Moreover, the question of whether and how to use criminal law sanctions to curb sexual immorality has been particularly susceptible to both outbursts of moral fervour in the community at large and to the pressure exercised by crusaders and propagandists with moral missions.
- Type
- Research Article
- Information
- Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 1 , 1986 , pp. 125 - 165
- Copyright
- Copyright © Canadian Law and Society Association 1986
References
Notes
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4. The Canadian law was based on an 1822 English statute, An Act for consolidating into One Act and amending the Laws relating to idle and disorderly Persons, 3 Geo. IV, c.40 s. 2 (England).
5. The English law was revised in 1824 and 1839 to include the noisome elements, An Act for the Punishment of idle and disorderly Persons and Rogues and Vagabonds, 5 Geo. IV, c. 83 (England), s. 3, and The Metropolitan Police Act, 2 & 3 Vict., c. 47, s. 54(11) (England).
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15. Offences Against the Person Act (1861), 24 & 25 Vict., c. 100, s. 49 (England)Google Scholar; Offences against the Person Act (1869), 32 & 33 Vict., c. 20, 50 (Canada)Google Scholar.
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19. Harrison, F., The Dark Angel: Aspects of Victorian Sexuality (London: Sheldon Press, 1977), 250–251Google Scholar.
20. The more radical wing of the feminists in the movement tended to emphasize the role of the woman as independent of the male, and thus to reject or underplay the importance of the woman as wife and mother. However, these impulses were sometimes submerged in the interests of reform politics. See Walkowitz, J., “Male Vice and Female Virtue: Feminism and the Politics of Prostitution in Nineteenth Century Britain,” in Snitow, A., Stanswell, C. & Thompson, S. (eds.), Powers of Desire: The Politics of Sexuality (New York: Monthly Review Press, 1983), 411–422Google Scholar. For an account of the thinking of radical feminists in Canada, see Bacchi, C., Liberation Deferred: The Ideas of English Canadian Suffragists 1877-1915 (Toronto: University of Toronto Press, 1983)Google Scholar; Roberts, W., “‘Rocking the Cradle for the World’: The New Woman and Maternal Feminism, Toronto 1877-1914,” in Kealey, L. (ed.), A Not Unreasonable Claim: Women and Reform in Canada, 1880s-1920s (Toronto: Women's Press, 1979), 15Google ScholarPubMed.
21. For discussion of the changes in Victorian thinking on sex and sexuality wrought by the reformers and its impact on the law, see G. Parker, “The Legal Regulation of Sexual Activity.” In the minds of most of the religious reformers in the Victorian period there existed a strong connection between sexual aberration and sin. It followed that individual salvation was necessary if the sin was to be purged. This view which was strongest among the churches in the evangelical Protestant tradition, began to wane towards the end of the century as mainstream Protestant impulses began to shift to the “social gospel” and the salvation of society. For an account of this transformation in the Canadian context, see Cook, R., The Regenerators: Social Criticism in Late Victorian English Canada (Toronto: University of Toronto Press, 1985), 173–232Google Scholar.
22. Walkowitz, , Prostitution and Victorian Society, 99–104Google Scholar.
23. Bacchi, , Liberation Deferred, 8–9Google Scholar.
24. Walkowitz, , Prostitution and Victorian Society, 114–118Google Scholar; Bristow, , Vice and Vigilantes, 75–85Google Scholar.
25. Bristow, ibid., 85-90.
26. Ibid., 60.
27. Ibid., 86.
28. British Parliamentary Papers, Report of the Select Committee on the Protection of Young Girls, 1882, iiiGoogle Scholar.
29. Ibid., Minutes of Evidence, 88 (Morgan); 83 (Dunlap).
30. Ibid., Minutes of Evidence, 92-93 (Dunlap); 88 (Morgan); 8 (Miss Ellice Hopkins); 33 (Rev. J. W. Horsley).
31. Ibid., Report, iv-v.
32. An Act respecting Vagrants (1869), 32 & 33Google Scholar Vict., c. 28 (Canada). Section 1 introduced the new offence of having no profession or calling to maintain oneself by, but for the most part supporting oneself by the avails of prostitution. The prescribed penalty was a maximum of two months imprisonment, fifty dollars or both. The maximum penalty was later increased to six months: (1874) 37 Vict., c. 43, s. 1 (Canada). By legislation in 1881 it was made clear that accused could be sentenced to six months with or without hard labour: (1881) 44 Vict., c. 31, s. 1 (Canada).
33. See Backhouse, , “Nineteenth Century Canadian Prostitution Law,” 11Google Scholar. Examples given by Backhouse include An Act to repeal the several Acts for incorporating the City of Fredericton (1851), 14 Vict., c. 15 (New Brunswick)Google Scholar; An Act concerning the City of Halifax (1864), 27 Vict., c. 81, ss. 227-228 (Nova Scotia)Google Scholar; An act respecting Municipal Institutions, 1877, R.S.O. Vol. II, c. 174, s. 461(27) (Ontario)Google Scholar; Municipal Code ofthe Province of Quebec (1870), 34 Vict., c. 68, s. 598, 603 (Quebec)Google Scholar; An Act respecting Municipalities (1875), 38 Vict., c. 31, s. 17(26) (Manitoba)Google Scholar. As an example of a bylaw enacted under enabling legislation Backhouse cites the City of London Bylaw of 1879 which not only attached penalties to keeping or frequenting a house of ill fame or letting premises to be used in that way, but also made it an offence to open premises, whether private or public, to prostitutes, to carry them in cabs for hire or to let cabs or horses to them.
34. Parliamentary Debates, House of Commons, 1882, 327. Charlton was a devout Presbyterian and a founding member of the Dominion Lord's Day Alliance.
35. See, e.g., speech of Sir John A. MacDonald in Committee. Parliamentary Debates, H.C., 1883, 222-223.
36. Parliamentary Debates, Senate, 1884. 365-368.
37. (1885), 48 & 49 Vict., c. 82 (Canada). In the Commons Charlton criticized the bill because it made no attempt to get at the person having illicit connection. Both an amendment by him to remedy that gap and a motion to refer the bill back to Committee were defeated. See Parliamentary Debates, H.C., 1885, 2767-2768.
38. Parliamentary Debates, H.C., 1884, 287.
39. Parliamentary Debates, H.C., 1884, 289.
40. Montreal Society for Protection of Girls and Young Women, Minutes Book, 1882-1891, PAC MG 281 129.
41. Ibid.
42. Backhouse, , “Nineteenth Century Canadian Prostitution Law,” 52–53Google Scholar. Backhouse reveals that legislative status had been accorded to such establishments from earlier in the century (see, e.g., Montreal Institute for Female Penitents (1832), 3 Wm. IV, c. 35 (Lower Canada)Google Scholar; Toronto Magdalen Asylum (1858), 22 Vict., c. 73 (Province of Canada)Google Scholar. This process continued and intensified through the 1860s and 1870s.
43. Ibid., 53-56. Backhouse notes that the maximum penalty for vagrancy was increased to six months in 1874 An Act Respecting Vagrants. Complementary provincial and federal legislation authorized the custody of women convicted of provincial and federal offences respectively in provincial reformatories (see. e.g., An Act Respecting the Andrew Mercer Reformatory for Females (1879), 42 Vict., c. 38, s. 2 (Ontario)Google Scholar; An Act respecting the Andrew Mercer Reformatory for Females (1879), 42 Vict., c. 43 (Canada))Google Scholar. Moreover, special federal legislation was enacted requiring women convicted of vagrancy in Quebec to serve their sentences in the Quebec female reformatory prison. The minimum penalty which could be exacted was five years! See An Act to make provision for the detention of female convicts in Reformatory Prisons in the Province of Quebec (1871), 24 Vict., c. 30, s. 2 (Canada)Google Scholar.
44. Ibid., 56-57. See, e.g., An Act to establish an Industrial Refuge for Girls (1879), 42 Vict., c. 39 (Ontario)Google Scholar.
45. Schults, R., Crusader in Babylon: W.T. Stead and the Pall Mall Gazette (Lincoln: University of Nebraska Press, 1972), 130–131Google Scholar.
46. Ibid., 128-168; Gorham, D., “The ‘Maiden Tribute of Modern Baylon’ Re-examined: Child Prostitution and the Idea of Childhood in Late-Victorian England,” Victorian Studies 21 (1978), 353Google Scholar.
47. Schults, , Crusader in Babylon, 169–192Google Scholar.
48. Criminal Law Amendment Act, (1885), 48 & 49 Vict., c. 69 (U.K.)Google Scholar.
49. Ibid., s. 2.
50. Ibid., s. 3.
51. Ibid., s. 4-7.
52. Ibid., s. 8.
53. Ibid., s. 10.
54. Ibid., s. 13.
55. Parliamentary Papers, H.C., 1886, 441-444.
56. An Act respecting Offences against the Public Morals and Convenience (1886), 49 Vict.,c. 157, ss. 2, 4, 5Google Scholar.
57. Parliamentary Papers, H.C., 570-571, 704-707.
58. Ibid., 705-706.
59. Ibid., 706.
60. Watt, D. A., Moral Legislation: A Statement Prepared for the Information of the Senate (Montreal: Gazette Printing Co., 1890), Appendix A, 37-41Google Scholar.
61. For the development of this program of lobbying, see Montreal Society for the Protection of Girls and Young Women, Minute Book, 1882-1891, PAC MG 281 129. See also Parker, , “The Legal Regulation of Sexual Activity,” 217–226Google Scholar.
62. Watt, , Moral Legislation, 27–30, 43–46Google Scholar.
63. Ibid., 25.
64. See An Act further to Amend the Criminal Law (1890), 53 Vict., c. 37, ss. 4-9 (Canada)Google Scholar.
65. Parker, , “The Legal Regulation of Sexual Activity,” 223–224Google Scholar.
66. Parker, G., “The Origins of the Canadian Criminal Code,” in Flaherty, D. (ed.), Essays in the History of Canadian Law, Vol. 1 (Toronto: University of Toronto Press, 1981), 249, 268Google Scholar.
67. The Criminal Code of Canada, (1892), 55–56Google Scholar Vict., c. 29, ss. 269, 181-184.
68. Ibid., s. 185(a).
69. Ibid., s. 185(b. (c).
70. Ibid., s. 185(e), (f), (g), (h), (i).
71. Ibid., ss. 186, 187.
72. Ibid., s. 684.
73. Ibid., s. 198.
74. Ibid., s. 574.
75. See, e. g., Watt, , Moral Legislation and statement of the Members for Montreal East, Mr. Coursol, Parliamentary Debates, H.C., 1884, 287Google Scholar.
76. Gorham, , “The ‘Maiden Tribute’ Reexamined,” 356–357Google Scholar; Bristow, , Vice and Vigilantes, 106–107Google Scholar.
77. Montreal Society for the Protection of Girls and Young Women, Minute Book, 1882-1891, PAC MG 281 129.
78. R. v. McNamara (1890), 20 O.R. 489 (H.C.).
79. Parker, , “The Legal Regulation of Sexual Activity,” 220Google Scholar.
80. Gorham, , “The ‘Maiden Tribute’ Reexamined,” 373–374Google Scholar.
81. Ibid., 364-365.
82. Report of Select Committee on the Protection of Young Girls.
83. This was true of a substantial minority of former servants according to Walkowitz, , Prostitution and Victorian Society, 18Google Scholar.
84. Backhouse, , “Nineteenth Century Canadian Prostitution Law,” 14–26Google Scholar.
85. Pearson, G., Hooligans: A History of Respectable Fears (London: MacMillan, 1983)CrossRefGoogle Scholar.
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87. Bristow, , Vice and Vigilantes, 114–118Google Scholar.
88. Parliamentary Debates, House of Commons 1885, Vol. 300, 1419-1421. Smith who wished to add an offence of “habitual solicitation” was primarily concerned to protect women and girls from the insults to which they were subjected in public places from potential customers.
89. See Report of Select Committee on the Protection of Young Girls, 1882, iiiGoogle Scholar; and Gorham, “The ‘Maiden Tribute’ Reexamined.”
90. Parliamentary Debates, 1885, Vol. 300, 1421-1422. Speeches by Sir R. Assheton Cross and Sir William Harcourt.
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92. Ibid., 154-159.
93. For details of its establishment see Bristow, , Vice and Vigilantes, 112–121Google Scholar; Walkowtiz, , Prostitution and Victorian Society, 251–252Google Scholar.
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102. Sessional Papers, 1898. No. 8D, xxxii-xxxiii. This probably reflects the fact that seduction was only introduced as an extended offence in 1886.
103. Ibid., lii-liii. It is interesting to note that while the average annual conviction rate for the bawdy house offences from 1893-1897 was similar to that for the period 1888-1892 (664.6/668.2), those figures were appreciably lower than the annual rate for 1883-1887 which was 817.2.
104. In fact separate figures for procuring do not appear in the Annual Criminal Statistics until 1911.
105. For a revealing example of negative attitudes to prostitutes see correspondence from J. Crerar, Crown Attorney for Wentworth, to the Deputy Attorney-General of Ontario in which the former expressed his frustration at having to prosecute a New York woman charged with procuring two Hamilton women to go to her brothel in the United States. He gives it as his opinion that it would be better for such “pests” to be lured away from Canada. See Queen v. Gibson, Ont. Prov. Archives. R.G. 4.C-3, 1898, File no. 1228.
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136. Although the average annual conviction rate for bawdy house offences more than doubled for the years 1898-1902 over the period 1893-1897 and climbed rapidly thereafter, the convictions for abduction and seduction increased only marginally, and convictions for procuring were still not numerous enough to warrant separate reporting.
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149. See, e.g., Ontario Provincial Archives, R.G. 4, C-3, 1909, File no. 1639 (complaint from Rev. S.D. Chown, General Superintendent of the Methodist Church concerning conditions in Arnprior).
150. See, e.g., Ontario Provincial Archives, R.G. 4, C-3, 1909, File no. 682 (request from Rev. Chown that houses of ill fame in Fort William be closed).
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154. It is interesting to note that the Rev. S.D. Chown, the General Superintendent of the Methodist Church, corresponded with Mackenzie King in 1908 encouraging him in his endeavours to deal with the opium trade — United Church Archives, Chown Papers, Box 1, File no. 10. The Minutes of the Board of Moral and Social Reform of the Presbyterian Church, September 7, 1909, reveal that King, by then Minister of Labour, was a member of the Board and met with his colleagues on that occasion to discuss issues of mutual concern.
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157. Ibid.
158. Ibid., 23.
159. Ibid., s. 9.
160. Ibid., ss. 1. 11.
161. Parliamentary Debates, H.C., 1913, 10077. The Minutes of the Board of Social and Moral Reform, Executive, January 30, 1912, reveals that representatives of the Moral and Social Reform Council met with Doherty on January 26 about proposed amendments to the Code.
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163. Session Papers, 1900-1910; no. 7 (1900), no. 17 (1901-1910).
164. Session Papers, 1911-1917; no. 17.
165. Session Papers, 1900-1917; no. 7 (1900), no. 17 (1901-1917).
166. Session Papers, 1911-1917; no. 17.
167. Session Papers, 1900-1910; no. 7(1900), no. 17(1901-1910).
168. Session Papers, 1911-1917; no. 17.
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172. City Council Minutes, Toronto (Toronto City Archives) 1918, Appendix C, 18Google Scholar.
173. Nilson, , “The Social Evil,” 215Google Scholar.
174. Bedford, , “Prostitution in Calgary,” 7Google Scholar; Rotenberg, , “The Wayward Worker,” 57Google Scholar.
175. Session Papers, 1900-1910; no. 7(1900), no. 17(1901-1910).
176. Session Papers, 1911-1916; no. 17.
177. City Council Minutes, Toronto (Toronto City Archives) 1907-1909, 1911–1917, Appendix CGoogle Scholar.
178. Vancouver City Archives, Board of Police Commissioners, Police Dept., Prisoner Record Books, Vol. 4 76(c) 1.
179. Ibid.; Ontario Provincial Archives, Ontario Central Prison Register, 1912-1921, R.G. 20, Series E-18, Vol. 3.
180. At this time in the case of both summary conviction offences and certain species of indictable offences, including being a keeper or inmate of a bawdy house, convictions were only appealable in very limited circumstances, i.e., where made by two justices of the peace. In the absence of a right of appeal, the convicted person had to proceed by way of application for writ of habeas corpus with certiorari, an expensive procedure. Only if that application to quash were rejected could there be an appeal. See Langdon, , “Female Crime in Calgary,” in Knafla, (ed.), Law and Justice in a New Land, 299Google Scholar.
181. Report of the Social Survey Commission.
182. See, e.g., Walkowitz, Prostitution and Victorian Society.
183. See Bristow, , Vice and Vigilantes, 118, 125Google Scholar.
184. Billington-Greig, “The Truth About White Slavery.”
185. Ibid., 446.
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