Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence - September 9, 2014
OTTAWA, Tuesday, September 9, 2014
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10 a.m. to examine the subject matter of Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we begin a pre-study on Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts. Pre-studies are a unique feature of the Senate that allow committees the opportunity to study the subject matter of a bill while it is still before the House of Commons.
In 2007, a group of sex workers launched a court challenge to the constitutionality of three provisions in the Criminal Code relating to prostitution. The Supreme Court of Canada invalidated these three provisions in December 2013 and gave Parliament one year to respond. Bill C-36 was introduced in the House of Commons in June 2014 in response to the court's decision.
Our first witness today is the Honourable Peter MacKay, Minister of Justice and Attorney General of Canada. The minister is accompanied by the following officials from Justice Canada: Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector; Nathalie Levman, Counsel, Criminal Law Policy Section; and Carole Morency, who is not at the table at the moment and will come forward later, Director General and Senior General Counsel, Criminal Law Policy Section.
We will begin, minister, with your opening remarks. Please proceed.
Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Mr. Chair and honourable senators. I should also note, Mr. Chair, we are joined here this morning as well by Bill Pentney, deputy minister, in addition to the very capable Justice officials you've mentioned.
Senators, I thank you very much for your presence.
[Translation]
I am pleased to appear before the committee on Bill C-36, the Protection of Communities and Exploited Persons Act. I very much appreciate the committee's willingness to pre-study the bill. As you know, timelines are critical.
Bill C-36 responds to the Supreme Court of Canada's December 2013 Bedford decision, which will result in the decriminalization of most adult prostitution-related activities if no legislative response is in force before the expiry of the court's one-year suspension on December 20, 2014.
[English]
Prior to the arrival of this bill before you this morning, we've heard from dozens of witnesses, front-line support workers, police, police chiefs, experts from the legal profession, academia and, of course, victims who have testified before the House of Commons Standing Committee on Justice and Human Rights. I want to take a moment, if you will permit me, to thank all of those witnesses, but, in particular, the many victims who testified before committee on Bill C-36 and shared their personal reflections and insights. I want to commend them for their courage.
I also want to express my sincere admiration for the compassionate dedication of the front-line workers, workers who've demonstrated every day their compassion by helping support and literally saving the lives of individuals whose lives have been marred by the actions of pimps, johns and very often criminal organizations. The work they do is tremendously appreciated, respected and inspirational.
Some proponents of legalization and representatives of the industry will come forward and tell you in the coming days that prostitution is a choice, that sex workers start at age 18, and that only legalization can provide them security. We disagree.
One of the witnesses that we heard from this summer, Natacha Falle, told the committee on July 7 about the dangers and entrapments that prostitution brings to our society. She said:
I entered when I was close to 15 years old. I came from a middle class home in the Calgary suburbs. My father was a police officer. My mother managed bridal shops. My seemingly normal life suddenly became unsafe, and I hit the streets.
She later went on to state:
. . . one by one each of us ended up with a pimp and/or on drugs. My best friend was murdered. She was shot in the head. . . .
That young woman was shot in the head by a pimp that she had known for only three months and who had been posing as a bodyguard.
When the Supreme Court rendered their decision in Bedford, the Canadian government had a choice to make: either legalize prostitution and normalize the sale of human bodies, or stand up for the victims and their families and the health and safety of our communities.
There has been much confusion about what Bill C-36 does and what it does not do. For example, some have asked why Bill C-36 does not facilitate selling one's own sexual services, since the bill proposes criminalization of the purchase but not the sale of sexual services. To be clear from the outset, Bill C-36 makes prostitution an illegal activity. Accordingly, it does not in any way seek to condone, allow or facilitate either the purchase or the sale of sexual services.
Bill C-36 proposes asymmetrical treatment of purchasing and selling. It does so not because it authorizes or allows selling but, rather, because it treats sellers as victims of sexual exploitation, victims who need assistance in leaving prostitution and not punishment for the exploitation that they have endured. Bill C-36, in essence, provides a legal immunity and respects the Bedford decision and the concerns raised for safety.
But make no mistake; the dynamics have changed insofar as the government has accepted the Supreme Court of Canada's invitation, where Madam Justice McLaughlin, writing for the majority, stated — and I quote from the Bedford decision, Mr. Chair and colleagues:
It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.
With the passage of this bill, prostitution will be illegal for the first time in Canada. Let us be clear about Bill C-36's ultimate objective, and that is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible. The enormity of that challenge is not lost on anyone, yet this should not dissuade this laudable goal of eliminating this inherently degrading and dangerous activity.
Reducing prostitution reduces exploitation, violence and suffering for many lives. Therefore, Bill C-36's legislative objectives are completely different from the objectives of the current law, which, according to the Supreme Court of Canada, primarily regulate the nuisance effect of an otherwise legal activity. Bill C-36, on the other hand, as I said, would make prostitution an illegal activity, and any constitutional analysis would be based on its new legislative objectives and framework.
The considerations and calculations of the court have therefore changed, and the premise upon much of which the Supreme Court based its decision has also changed, with prostitution becoming illegal. As well, the focus — the target, if you will — is now on pimps and johns.
Bill C-36 reflects a fundamental paradigm shift toward the treatment of prostitution as a form of sexual exploitation that disproportionately and negatively impacts on women, children and other marginalized and vulnerable groups. Of particular note are Aboriginal, First Nation women and new Canadians.
Prostitution is not a victimless crime. Rather, it victimizes not only sellers but also communities in which prostitution takes place, including and specifically children — children who may be exposed to it — and society itself by normalizing the gender inequalities inherent in prostitution.
Furthermore, commercialization and institutionalization of prostitution — for example, when prostitution takes place in strip clubs, massage parlours and through escort agencies — exacerbate its negative impact and inherent exploitation.
I know all here would agree that one of the main functions of the criminal law is to protect the vulnerable and, make no mistake, prostitution targets the vulnerable and preys on victims.
Research indicates that entry into prostitution and remaining in it are both influenced by a variety of factors such as poverty, youth, lack of education, child sex abuse, other forms of child abuse, drug and alcohol addiction, and mental health issues, among others.
Research also shows that prostitution is an extremely dangerous activity that poses a risk of violence, psychological harm and trauma to those subjected to it, regardless of the venue or legal framework in which it takes place.
A system of laws that facilitates prostitution for the benefit of individuals who freely claim to choose it — in other words, a form of legalization or decriminalization — would result in greater demand for sexual services and a corresponding increase in the exploitation of vulnerable populations, including children and teenagers, to meet that demand. Such an approach, I believe, would also normalize the commodification of vulnerable groups, primarily women and girls. This is corrosive on Canadian society and counter to the enormous gains that have been made throughout the country to advance gender equality.
The Supreme Court's argument in Bedford has forced us to make a critical decision. If we were to adopt a system that facilitates prostitution, we would further harm the vulnerable majority, both those who have been subjected to exploitation through prostitution and those who are at risk of being drawn into it.
Let me be clear: The government's priority is to protect vulnerable Canadians. Doing nothing was never an option and would have been an abdication of responsibility of the government — a responsibility to protect individuals, particularly vulnerable persons. I repeat: It is the government's priority and fervent belief that we must protect vulnerable Canadians. Bill C-36 reflects that priority.
Let me address, first and foremost, the issue of demand. This bill seeks to achieve its objectives by tackling the demand for sexual services. For the first time, as I said, in criminal Canadian law, the purchase of sexual services would be criminalized. As I said, this would make prostitution illegal, as acknowledged by the Library of Parliament's legislative summary on this bill, which states that criminalizing the purchase of sexual service "constitutes a de facto prohibition of prostitution. . . ."
To complement the purchasing offence, this bill proposes to criminalize advertising the sale of sexual services, also for the first time in Canadian criminal law. The sale of sexual services is banned. It is fueled by demand for the services and the advertising that contributes to that demand.
To clarify the scope of this offence, because there has been some confusion in this regard, a person who advertises the sexual services of other persons would commit the offence and the person who knowingly assists other persons in advertising sexual services for sale would be a party to the offence.
However, the person who advertises their own sexual services could not be prosecuted for this offence because Bill C-36 treats the person as a victim of sexual exploitation. So the new law will target those who purchase the bodies and the lives of other human beings. This approach is consistent with the bill's objective of reducing the demand for prostitution while treating those subjected to it as victims who need assistance, not punishment.
Bill C-36 also maintains but modernizes offences that criminalize those who seek to capitalize on the demand created by purchasers. Proposed new offences would prohibit materially benefiting from the prostitution of another individual and procuring another person to provide sexual services. The "material benefit" offence would replace the former "living on the avails" offence found unconstitutional by the Supreme Court in Bedford.
It also takes into account both the Supreme Court of Canada's concern that living off the avails of the offence prevents the hiring of bodyguards and other persons that could enhance safety, as well as the very real concern that those same bodyguards would become exploitative to maximize their profits. Accordingly, legislative exceptions would apply to non-exploitative relationships, enabling sellers to interact with others on the same basis as anyone else. I will go into that in more detail.
For example, the material benefit offence would not apply to those who offer goods or services through legitimate businesses or informally, for example, an acquaintance who provides protective services. Other examples include financial accounting, delivery or driving services — those that are readily available to the public.
However, if a person who fits within that legislated exception becomes exploitative, such as by using violence or financially benefiting from another's prostitution in a commercial context, such as in a strip club or a massage parlour, that person would be subject to a charge under the material benefit offence. The relationship, as we know, can obviously change or morph into an exploitative one, and a parasitic or exploitative relationship does become criminal.
[Translation]
Mr. Chair, Bill C-36 would also modernize existing procuring offences. Whereas the proposed material benefit offence does not require a proof of active involvement in the prostitution of others, the proposed procuring offence requires active involvement such as causing or inciting others to engage in prostitution. This is consistent with the existing Criminal Code approach and justifies the higher penalties imposed for procuring.
[English]
Mr. Chair, colleagues, I've already noted that Bill C-36 proposes to criminalize the purchase but not the sale of sexual services. This bill would also expressly immunize sellers from prosecution for any part that they might play in the proposed purchasing, material benefit, procuring or advertising offences. In particular, Bill C-36 would not prevent sellers from implementing certain safety measures noted in the Bedford case, such as selling one's own sexual services from a fixed, indoor location and hiring legitimate bodyguards, in addition to the personal advertising that I previously mentioned.
I've also already stressed this is not because Bill C-36 in any way condones, enables or allows the sale of sexual services. Rather, this bill treats those subjected to prostitution as victims and weighs in the balance the need to protect the vulnerable as most important. The reality is that while we as a society work towards Bill C-36's objective of deterring and ultimately abolishing prostitution, just as we do with all other criminal offences, some sadly continue to remain subjected to it.
This bill would, however, criminalize certain conduct engaged in by sellers in limited circumstances where such conduct is deemed to harm children. As introduced, Bill C-36 proposes a summary offence that would have criminalized communicating for the purposes of selling sexual services in public places where children can reasonably be expected to be present.
This is the wisdom of the previous committee, where witnesses before the House of Commons Standing Committee on Justice and Human Rights expressed concern about this offence as introduced. I had previously heard a broad array of opinions in previous consultations about this specific section of the bill. I must say that even in policing circles there is a broad array of opinion on this subject.
In response to the concerns raised at the committee, the government moved to amend the offence by narrowing its scope to apply only to specific places that are or are next to three locations designed to be used by children: school grounds, playgrounds and daycare centres.
The main objective of the amended offence remains the same: to protect children from exposure to prostitution, because such exposure would result in vulnerable children potentially being drawn into a life of exploitation. The offence also protects children from additional harms associated with prostitution, including being exposed to drug- related activities, drug instruments, such as syringes, or to used condoms or other dangerous material.
By clearly establishing the parameters of criminal liability the amended "communicating" offence carefully balances the different interests at play, which include the need to protect sellers from exploitation and violence, as well as the need to protect vulnerable children from the harms associated with prostitution.
The Supreme Court in Bedford acknowledges the particular importance of protecting children and, in that vein, this bill includes harsher, escalating penalties for those who engage in acts associated with child prostitution.
Mr. Chair, the complementary funding element is something important to mention here. The government believes that the best way to address prostitution's inherent risks and harms is to reduce its incidence and help those subjected to prostitution to exit. In that regard, the government has announced it will provide assistance through complementary funding of $20 million over five years. This is in addition to other federal initiatives, including the National Action Plan to Combat Human Trafficking; the National Crime Prevention Strategy; the Victims Fund; the Aboriginal Justice Strategy; and funding to address the issue of missing and murdered Aboriginal women.
It's also important to note that there is funding provided by provinces and territories, which are primarily responsible for the delivery of many of the needed services in areas such as housing, social and medical services, education programs, occupational and vocational training, and victim and addiction services and treatment and counselling.
In conclusion, Mr. Chair, the testimony that you will hear I suspect will open your eyes to a very sad reality that is often not understood and certainly perhaps not known by the majority of Canadians: a world of exploitation where only money counts and where there is terrible suffering, violence and exploitation happening everywhere in the country.
[Translation]
I encourage you to consider the final results of the government's public consultation on prostitution-related offences in Canada, which garnered more than 31,000 responses as well as the technical paper I tabled before the Justice Committee on July 7, 2014, which contains references to the body of research available on prostitution and provides legal analysis of the bill's law reform proposals. I have brought a copy of this paper with me today for your reference.
[English]
In conclusion, prostitution, as we all know and it's a penetrating statement of the obvious, is a complex social issue requiring a multi-pronged response. This bill proposes much-needed criminal law tools to address prostitution which takes into account all safety concerns, including those outlined in the Bedford decision, as well as the broader safety and societal concerns posed by prostitution more generally. Specifically, those subjected to prostitution must be protected from violence and exploitation; communities must be protected from prostitution's harmful effects, including exposure to children; and society must be protected from the normalization of a gendered and exploitative practice.
But the complexity of this issue requires much more than just legislation to fill the legal void created by the Bedford decision. In recognition of this fact, the government has dedicated funding to assist — buttressing current programs — in ending the multi-faceted harms in prostitution.
Finally, Bill C-36 and its complementary funding reflect our government's commitment to work together with our provincial, territorial and civil society partners to reduce the harms caused by prostitution, with a view to one day bringing this inherently dangerous activity to an end by paving the path to a more productive, peaceful and prosperous life for prostitutes and their families.
I thank you for the work you are undertaking on this bill. I thank you for being here on this day, and I look forward to your questions.
The Chair: Thank you very much, minister. I understand you will be with us until 11 a.m.?
Mr. MacKay: That's correct, but I'm willing to stay longer, if necessary.
The Chair: And officials will be here until noon, available for members' questions?
Mr. MacKay: That's correct.
Senator Baker: Welcome, minister, to the committee once again.
We realize as well the main questions here are with regard to the constitutionality of this new provision. I recognize that you are a former Crown prosecutor and you have litigated Charter arguments. You are used to doing up a factum concerning the Charter and arguing it before the courts. In one particular case I recall, the Supreme Court of Canada upheld the Court of Appeal of Nova Scotia and you were the Crown prosecutor in that particular case concerning sections 8 and 9.
Having said that, I'd like to put three questions to you at the same time. The first question deals with the outlawing of activities that take place in public. This was one of the major considerations of the Supreme Court of Canada, in that it drove the activity into the dark alleys and endangered the people who were involved in it. What makes this bill immune from unconstitutionality when one of the provisions of the bill does exactly the same thing?
The second point perhaps you might want to comment on is that two recent polls in Canada, one done by your own department, show that Canadians are divided on the issue fairly evenly of whether or not prostitution should be legalized.
My third question is this: I look at your bill, and in proposed subsection 286.5 there is an exemption. It states that "No person shall be prosecuted for . . . an offence under 286.2" — which is receiving a material benefit from prostitution — "if the benefit is derived from the provision of their own sexual services" — in other words, to protect the prostitute from being charged. Then the next proposed section goes on and says the same thing about advertising. Then the third proposed section goes on to say that no person shall be prosecuted for aiding and abetting in any of those offences if it concerns the provision of their own sexual services.
Prior to that, we go back to the next page and there's an exemption there for those people who are working for prostitutes, that is, bodyguards or receptionists. If you go back even further in the bill, it also provides protection for those who are living with a prostitute, if indeed it is what is called under the legislation a "legitimate living arrangement."
So when you say that de facto prostitution is being made illegal in Canada for the first time, yes, de facto, but what about de jure? Is in fact the act of prostitution for the first time in Canadian history being made an illegal activity? All of our legislation dating back to 1869 does not include a provision that says that the act of prostitution is de jure illegal. Can you comment on any of those, minister?
Mr. MacKay: I will, senator. Thank you for that very penetrating and important question.
With respect to your first and third questions, you've actually answered much of the reasoning behind the delineation between why we would prosecute or target the pimps and johns but not proceed with prosecution of prostitutes themselves. It's because of both the commentary found in the Bedford decision but also the very proper recognition that prostitutes themselves are victims. This will be disputed by some, but I think the overwhelming jurisprudence and objective examination of fact will tell you that the vast majority are not in prostitution by choice. The very reason that the Supreme Court, in my estimation, struck the three provisions of the Criminal Code was because weighing in the balance and using the Charter analysis the dangers inherent in prostitution required a different approach. Madam Justice McLachlin and the court invited Parliament to put a new framework in place that included and does include now making prostitution illegal now for the first time.
As to your question about why there is a legal exemption and why we have, in essence, immunized prostitutes from being prosecuted from the three constituent elements of procuring, communicating and operating a bawdy house, as well as aiding and abetting or being party to events, they are essentially immunized but for communicating in a public place or in specified areas where children would be present or in areas designed specifically for children to be present, for example, playgrounds or schools.
I would argue that this bill does not, as some have alleged, drive prostitutes into the dark, into the alleys or into places where they would be at greater risk or — and this is an extremely salient point — be forced to curtail certain actions and steps that would make them less vulnerable, for example, the examination of the individual or the opportunity to perhaps record information. This bill, while it isn't an enabler, recognizes there are certain steps to be taken to reduce risk.
Having said that, and I've stated this earlier, it's my belief that prostitution is inherently dangerous. There is very little that can be done to completely eliminate that risk. This bill goes to great lengths, after great consultation, examination of facts and international examination of other jurisdictions, to try to lessen the risk while at the same time protecting the vulnerable. It's drawing that very firm line between who we consider to be the perpetrators, the johns and the pimps, and targeting them with police and criminal sanction. It does so in a way that we believe eventually, through all the efforts, combining provincial and territorial efforts, many of the groups that we heard from who are doing outstanding work in this area, moves prostitutes to a better place, giving them better options, and giving them access to the type of support we think will improve their lives and draw them out of prostitution to a more productive place.
Your last question was about the conflicting polling data. It isn't surprising to me that we have strong differences of opinion on this subject, as on other subjects. Again, it's an understatement to say this is an issue that's been around for a long time and people have a tendency to form very fervent views. However, looking at this from a criminal justice perspective, we believe that we have it right in this bill. After looking at the recommendations and advice of the Supreme Court and hearing from an extremely large number of Canadians, some 31,000 who took part in the on-line consultation and face-to-face meetings that were held, we believe, on balance, that this is the direction that the country should be heading when facing this very complex issue.
Senator Batters: Minister, thank you very much for attending here today. I would like you to tell us more about the legislative objectives of this proposed Canadian model and the evidence on which these objectives are based.
I come from Saskatchewan. I've lived almost all my life in Regina. Prior to coming to the Senate, I was the justice minister's chief of staff in Saskatchewan for four and a half years, so I had a unique vantage point into Saskatchewan's criminal justice system.
From what I saw, the average prostitute in Saskatchewan is probably a 14-year-old Aboriginal girl, who was probably beaten up earlier that day by her pimp and is likely addicted to drugs. For that young girl, the world of prostitution is not a choice. It's coercion, desperation and exploitation; it is not a choice.
This confirms what you have mentioned, that prostitution is not a choice in the vast majority of cases; it is a dangerous activity, and people who enter prostitution start at a very young age. Could you comment on that, please?
Mr. MacKay: Thank you, senator. Your description of the graphic life circumstances of many prostitutes in your province and others is quite accurate and it feeds into the questioning from Senator Baker as to the very objectives of the bill.
As I mentioned, this is a fundamental paradigm shift in approach under the criminal justice system in Canada that we are proposing through this bill, and that is treating prostitution as a form of sexual exploitation, treating prostitutes themselves as victims, as they are in the scenario you just described.
The overall objectives of this bill are to reduce the demand for prostitution by targeting the consumer, the pimps and the johns who are the enablers; making prostitution itself illegal, which is a move away from simply criminalizing certain aspects or parts of the practice; and discouraging entry into prostitution itself. I think preemptive efforts should not be undersold as critical to what we are attempting to do here: deterring prostitution at its very origins so that the underlying causes, of which there are many, remain the type of work being done in other areas of mental health, addiction services, poverty, housing and child care. Those are issues that I know you, in your previous career, were working on closely to deter and, ultimately, diminish prostitution to the greatest extent possible.
Some were scoffing at the fact that we hope to eliminate prostitution, as I previously said. That is what we are, in effect, attempting to do. Is it something that will happen quickly? Of course not. Is it something that will require enormous effort? Beyond any criminal justice initiative, it will require enormous effort and investment.
I believe these new objectives, coupled with the programming that I mentioned earlier, are the right thing to do. I believe this is the advice that we've been receiving and it is the example that has been pursued in other jurisdictions that has helped to address the extremely inherently dangerous practice of prostitution. It has a very broad and sweeping impact on so many communities in Canada and will require a particular approach that will be unique to them.
This bill, I believe, goes a long way to allow our criminal justice officials but it will bring about greater collaboration to address all of those underpinnings of prostitution.
Senator Batters: Minister, since Bill C-36 introduced, there has been a lot of misinformation in media reports concerning the advertising provisions of this bill. I would like you to clarify the advertising provisions as they relate to individuals who sell their own sexual services.
Mr. MacKay: As I previously mentioned, the selling of one's own sexual services will not be criminalized by this bill. It is focused on those who enable and perpetuate prostitution — the advertisers themselves and the pimps who use advertising — and it applies to all forms of advertising. In this bill, we view advertising as one of those causes that have to be addressed. But, again, for reasons that are clearly stated in the Bedford case and have been clearly outlined by witnesses, on balance, prostitutes themselves should not be subject to criminal prosecution.
When one considers all of the factors we are discussing here, we believe targeting those who are enabling the advertising and those who are enabling prostitution through that medium will be, in fact, subject to prosecution.
Senator Jaffer: Chair, with your permission, may I ask the clerk to distribute a small chart that I had prepared for the minister to look at?
Minister, thank you very much for your presentation and for being here today. I have a number of questions, but I know time is limited so I will try to ask them as fast as I can.
In the House of Commons hearings on July 7, Mr. Piragoff stated in responding to a question:
The overall objective of Bill C-36 is to reduce prostitution, discourage entry into prostitution, and to deter participation. It also recognizes that the process of trying to deter prostitution is not an easy avenue, and that in the course of that people who engage in prostitution and selling sexual services need to be protected.
Minister, the latter part of this statement is most pertinent in addressing what Bedford requested, not so much to decrease prostitution but rather to protect the women who are in the work. You have been very persuasive in your desire to protect sexual workers. Can you specifically state how you feel in this bill that women will be protected, that sexual workers will be protected? I know you've spoken very persuasively about reducing prostitution and I don't think anybody in this room disagrees with you on that, but I disagree with you in the emphasis you have put in the sense that my reading of Bedford is that we need to protect sexual workers; the sexual workers have rights as well. I'm not completely confident that this bill will protect sexual workers. Can you please elaborate on that?
Mr. MacKay: Thank you very much, Senator Jaffer. I am emphatic in my belief that this bill will do both; in fact, it will help reduce prostitution itself, but will create the climate in which prostitutes can take certain specific measures, steps to further protect themselves or insulate themselves from violence. Reducing the demand, targeting the perpetrators — pimps and johns — is a major thrust, focus of the bill. The bill also focuses, as I said, law enforcement's resources and attentions primarily on those responsible for prostitution, mainly the individuals who exploit women and in particular those who are drawn to prostitution because of their vulnerability.
To answer your question specifically, it is this bill's underlying premise that it would not prohibit individuals, as some would argue and certainly as the court accepted, from taking specific measures to protect themselves. They include mainly fixed indoor locations being not precluded from areas in which sexual services are sold, including indoor locations, whether this is done independently or cooperatively. It also allows for and is permissive in the sense that individuals can have bodyguards in their employ. They can have individuals, for example, who act as spotters, who record certain information, which acts as a deterrent.
I've spoken already about the advertising, and this issue of criminalizing the receiving of financial or material benefit by individuals who are around them who are not in an exploitative relationship. These were all factors, among others, that the court pointed out increased vulnerability of prostitutes.
We have eliminated, I believe, some of those barriers to taking steps to ensure greater safety. Having said that, I need to emphasize that there is, in my view, no possibility of eliminating all of the inherent dangers because of the very nature of prostitution and, having just answered your question about how to create better, safer conditions, it's not the intent of the bill and it's certainly not the intent of the government to enable, encourage or further foster individuals entering prostitution. Prostitution is now de facto illegal, but the emphasis and the focus is on the purchaser and the perpetrator, the pimps who are attempting to exploit and gain materially from prostitution itself.
The Chair: We will have to interrupt. I gave the lead questioners a little more latitude but the minister will be leaving soon. We have an opportunity for each senator to ask a question while the minister is here, so I encourage you all to tighten up your questions, and, minister, I know it's a challenging subject to deal with in a cursory way, but I encourage questions and answers to be as brief as possible so we all have an opportunity.
Senator McIntyre: I have two quick questions. My first has to do with the Youth Criminal Justice Act. As I understand, provisions under the act would apply in the case of an individual under the age of 18. In other words, the act would cover any interactions that would involve someone under the age of 18. I want you to confirm that.
Mr. MacKay: That's correct.
Senator McIntyre: My other question has to do with the human trafficking component of this bill. Can you explain why human trafficking and prostitution are closely linked and cannot be separated from each other?
Mr. MacKay: That's a very good question. First, I do confirm, as you said, the that Youth Criminal Justice Act would apply here and found within the pages of Bill C-36, as you know, are efforts to augment the penalties associated with child prostitution in particular, because this is clearly a more aggravating circumstance when individuals fit that definition of a child. They are more vulnerable.
On the human trafficking component, trafficking, like prostitution, is a terrible crime. It's exploitative at its core. Many women, in particular new Canadians and Aboriginal Canadians, are subject to trafficking for the purposes of prostitution, so therefore they are inextricably linked and, in my view, in the criminal justice system they cannot truly be separated in our approach, in our response, in our efforts to alleviate the harm and to extricate women from these very exploitative circumstances.
A lot of jurisdictions that we examined that have decriminalized or legalized prostitution have actually seen an increase, an uptick in human trafficking, which proves the point that they are in fact closely linked and associated. It's for that reason that we have not gone down the road of legalization or decriminalization, because we believe that it would bring about greater harm and a rise in trafficking. Jurisdictions we've looked at prove that out.
Again, referring to outside jurisdictions, the European Parliament interestingly quite recently, just this spring, endorsed what is being described as classically the Nordic model. While ours is the Canadian model, it borrows heavily from that approach, and the Council of Europe recommended that member states observe this approach that included the focusing on perpetrators while focusing their rehabilitative efforts and efforts to help exit prostitution on the prostitutes themselves.
This bill, these amendments are consistent between the human trafficking offences and the proposed prostitution offences found in Bill C-36. It increases the maximum penalty; it imposes mandatory minimum penalties for receiving material benefit from child trafficking; and I believe it is again an approach that recognizes that these two societal ills are very closely associated.
Senator Joyal: I would like to draw your attention to proposed subclause 286.5 in the bill. I will give an interpretation of it and I would like to have your comment, if possible.
According to my reading of proposed subsection 286.5, a prostitute can advertise her service or his service; can hire a cab to go and pick up a customer; can hire a bodyguard; can partner with other prostitutes to offer her services and be totally within the legality of that section. Am I right in interpreting that clause that way?
Mr. MacKay: The answer, Senator Joyal, is that if it is not of an exploitative nature; that is, if it is not providing material benefit to a third person. It's obviously going to be examined in its circumstance. That is, is there intimidation? Is it done in a way that perpetuates violence or addiction? Otherwise, the answer is yes.
Senator Joyal: In other words, a person who, totally of her or his own free will, offers his or her sexual services against money — essentially, it's a commercial transaction for remuneration —
Mr. MacKay: It's remuneration, yes.
Senator Joyal: — can advertise his or her service on the Internet, for instance, or in any newspaper or magazine. As I said, they can hire a cab, a taxi driver, to go and pick up customers, who contacts that person; they can hire a bodyguard at her or at his apartment, to make sure that safety is maintained; and that person would be totally within the legality of proposed subsection 286.5. That is, as you said and I agree, if that person is not working for a pimp or a john to give a percentage of the remuneration, or is a person under threat, either not having his or her drugs, or all the other circumstances that we might understand.
I want to concentrate on the act of selling sexual services against remuneration under free will.
Mr. MacKay: The short answer is yes. There is immunity from prosecution. In the strict legal sense it is a criminal act, but there is specific immunity set out in the Criminal Code in that section.
Senator Joyal: If there is immunity in that context, how can you then target the person who pays for those services as being a criminal? That is where I have some problems connecting the logic of those legal activities within proposed section 286.5 and the fact that a person receiving those services would pay for those services.
Mr. MacKay: The short answer there is that the immunization from prosecution is because of the clear recognition that the prostitute is a victim. Therein lies the difference. You have individuals who are victims and individuals who are materially benefiting and exploiting. It comes back to your earlier question of exploitative relationship. The exploiter is participating in a criminal act; the prostitute, even though willing in some cases, is the victim. It's a power imbalance that we are trying to capture in these code sections.
Senator Joyal: There is a nuance between the fact that I am a pimp who is exploiting a person, him or her, and I am subjected to the context of a criminal exploitation. In the context of a free operation of her own will, without the context of exploitation by a pimp, how can the person who pays freely for services that are legally advertised, that are legally offered, and that are legally performed, that scenario, be seen as the complicity of a victim status that the provision does not recognize for that person who offers his or her service freely? That's why I think there is a nuance that the court will want to investigate.
Mr. MacKay: They will investigate, without doubt, and will look at the individual circumstances in every case. I would suggest, senator, that the very question of "is it of free will," when one considers the circumstances of the prostitute, whether there are a plethora of underlying causes of addiction, exploitation or violence, is it truly of their free will and is there an acceptance — I don't believe there is — by courts or by experts who examine prostitution that it isn't a power imbalance, that it isn't the commodification and gender exploitation that is so endemic in prostitution; that is so associated with how women in particular and young women find themselves in these circumstances.
Telescoping back, that is what we must keep in mind in what these sections attempt to accomplish. We believe that the providing of immunity for the prostitute allows the right focus, the force of the law, to be brought to bear on the perpetrators, while at the same time providing safer conditions in which women who continue to practise will eventually be able to avail themselves of exit programs and strategies. It is a simultaneous effort that will have to occur.
Your committee is looking at this bill but please, senators, keep in mind that the continuation of programming and the good work that is being done, and we hope will be bolstered by further funding and resources, will allow a clear path for prostitutes to leave prostitution. It is that simultaneous effort that I think will bring about results. How quickly and effectively we are able to do that really begins in part with the passage of this legislation, but obviously a great deal of the harm that is being done will be lessened when we lessen the demand and we increase the availability of programming and optionality for prostitutes.
Senator Plett: I have a list of questions, but obviously I won't be able to ask them all. Thank you for being here.
First, let me say I support the intent of the bill; I support the bill completely. I am one of those who wish the bill would maybe go further than it does.
In the immunity part of the bill, we talk about the prostitutes being victims. Senator Batters said 14-year-old girls and I support that 100 per cent. We have 14-year-old boys or 14-year-old girls selling drugs. They don't have immunity. They are also victims somewhere along the line and yet they are charged.
My concern is this, minister: In the long term, if we take away the customers we close down the business. I understand that and support that. However, in the short term, is the pimp going to say to the 14-, or 15-, or 16-year-old girl, "I am losing many of my customers. You cannot be prosecuted, so you just go out there and hustle a little harder to make sure you keep as much activity going as possible." Do we have some short-term solution for that? I agree with the long term; I support it 100 per cent. I would like you to address that.
Quickly, regarding the $20 million, how was that figure of $20 million arrived at? I read in one report that the United States has $10 million for 10 times as many people doing the same thing. Where did we get the $20 million from?
Mr. MacKay: Answering your latter question first, the $20 million figure we believe is a reasonable investment to begin. It's also important to view that figure as complementary to other programs and other resources, including the Aboriginal Justice Strategy and ongoing programs delivered and, in some cases, also financed by provinces and territories. That $20-million figure should not be viewed in isolation. There are other specific investments in the area, to reference Senator McIntyre's question about combatting human trafficking. That is a component element, but also overlapping funding. There is the National Crime Prevention Strategy and the Victims Fund. All of this should be seen in its totality and not in isolation as that $20-million figure.
I would also respond to your question about a short-term impact. We want an immediate impact, obviously. The mindset, we hope, that will quickly evolve is that the victims will feel empowered to come forward and report if they are in this exploitative relationship and find they are being victimized by pimps and by johns. We heard this testimony. We heard from prostitutes that there is in many cases a reluctance to report for fear of prosecution themselves, that they will fall victim, if you will, to being charged criminally and, therefore, there is a reticence to report.
Removing that possibility, we hope, will encourage reporting. We hope it will empower those victims, those prostitutes, to come forward and cooperate with police and social workers, those who are tasked to help them, with the clear knowledge that they are not going to wind up with a criminal record. That is, in part, an answer to your question.
With regard to young people, in particular, to use your example of the 14-year-old, there now will be elevated penalties. That's something I know, Senator Plett, that you and I can very much agree on, that those who prey on children, in particular, in whatever context, should be prosecuted to the full extent of the law and should face serious penalties and incarceration. So that is an underlying theme in this bill as well.
Children, in other legislative initiatives that we've taken, are very much presented as our most vulnerable and our most valuable citizens, so more can be done in the criminal justice context in that regard.
I come back to the basic premise of this bill, which is a shift away from previous efforts — which were failing, quite frankly — and that is to focus on the demand, as you said, to focus on how we discourage entry and participation in prostitution itself, and to go after that demand, to go after the exploiters, the perpetrators, those who are really behind what we know are the numerous complex issues that drive prostitution.
I'm confident that, with this greater collaborative approach and focus, we will start to have the desired effect of reducing prostitution and reducing the other social ills and issues that are associated with prostitution itself. It's certainly hopeful that it will lessen human suffering, which is again so closely associated with this, and I go back to Senator Jaffer's point about not criminalizing the safety measures.
Taken in balance, I think we have measured all of these calculations very carefully, taken the advice of experts, taken the input of those who find themselves in these circumstances and really tried to broaden safety and societal concerns, along with criminal justice measures and along with programming, to do a better job helping those who are out there every day doing important work to help the many people affected by prostitution.
The Chair: Minister, we have two additional senators with brief questions they'd like to pose, if you have time. We'll move on to Senator Dagenais.
[Translation]
Senator Dagenais: Thank you, minister, for your presentation. I have two very brief questions for you.
First, why will the bill make it an offence for a third party to advertise an offer to provide sexual services for consideration?
My second question is also about advertising: Will the provision making it an offence to advertise sexual services also penalize editors, those who publish newspaper ads, and will it also sanction website administrators who post such ads?
Mr. MacKay: The answer to the second question is yes. But the intent of this bill is not to focus on prostitutes. Its purpose is to attack prostitution-related problems.
[English]
In essence, we see the advertising component of prostitution as clearly one of those underlying enablers that fuels the demand, that invites greater exploitation and that enables pimps, quite frankly, the exploiters. So it is that highway to greater prostitution, the proliferation and expansion of prostitution. That's why we're going after the advertisers.
But you're absolutely right in saying this isn't meant to go after the sole individual, the prostitute themselves, who may choose, either through the Internet or through other forms of advertising, to say, "This is what I'm doing." Again, we offer that immunity because of the recognition and acceptance that a prostitute is a victim in that regard, and all of those underlying, back causes that have led the person to that point in their life. We think, on balance, the focus needs to remain on the enablers and the perpetrators, and that means pimps and johns.
Senator McInnis: Thank you, minister, and thank you for being here.
One of the positive things, perhaps, of this issue becoming high profile is that the media and others are starting to pay attention to the severity of this. I got up one Saturday morning — in fact, on August 30 — and it was captioned on the front page of The Chronicle Herald. It was a full-page story of "lost girl." They chronicled this young 13-year-old girl who was from a broken home and how her troubled life lured her into easy money and prostitution, drugs, brand- name clothing and that type of thing. She would see as many as five clients a day, aged 18 to 70. Many of her peers do the same thing. In fact, she estimates that she could name 50 in Halifax alone. Police estimate the same number. Goodness knows how many others there are in the larger cities.
She states that one of their big fears is they will be taken away to Toronto by pimps. Let me quote what she says here in one small paragraph:
I don't know how to convince people to stay away from it. It's dirty and it's sad and I just shouldn't have been in that situation. I missed out on my innocence. It's not like I can go back.
She is, as I say, under 16. She's been involved in prostitution and drugs, a dangerous life, afraid of pimps, loss of teenage years, no education, and now she's trying to get back into the educational system.
I guess the question is, and you've touched on some of it: What is this going to do, and what programs do we have that will aid and abet these individuals to get back to a normal life?
Mr. MacKay: Well, it will take a Herculean effort, to be sure. I'm heartened by the fact that there are tremendous organizations in the country today, individuals who have literally devoted their lives to this effort of helping to liberate predominantly women from modern slavery.
This newspaper account that you've described underscores some of the other insidious elements of prostitution. For young people — in particular, young women — who are isolated from their peer group and parents, their normal support mechanisms are gone, and so they're trapped; or they're moved away from their home and community and again further captured by that circumstance, and then forced into the acts of prostitution, in large part with violence, intimidation and blackmail. There are elements of cybercrime that touch on prostitution, that people are blackmailed into these acts of prostitution by fear of disclosures of certain images or things that are captured online.
So, to answer your question more precisely, the focus of the bill is on the perpetrators, the immunity provisions, the stricter penalties and the support of the ongoing work that is being done. I mentioned specifically, for example, the Centre to End All Sexual Exploitation, or CEASE, in Edmonton, whom we heard from; Streetlight Support Services in Toronto; the prostitution education programs that exist in our province, in Nova Scotia. I was in London, Ontario, several times during our consultation and the London Abused Women's Centre and Sextrade101; people like Megan Walker and many others who have devoted their lives to this. Joy Smith, our colleague in the House of Commons and many others are continuing their very real, tangible efforts to help bring people to a better place and bring them out of this exploitation.
I just want to leave you with a quote, if I might, from one of the witnesses who testified. She said:
Prostitution is not a career choice made by the vast majority of women in the sex trade. Life gives them few options. Prostitution almost always leads to these women becoming victims of violence.
It is that fear, that underlying violence, that we need to continue to focus on. That's what this bill does in its underpinnings. That's what the programming, funding and further support networks will do, but, make no mistake about it, it is going to take time and extreme effort to help prevent, pre-empt and pull people away from prostitution.
The Chair: Minister, thank you for coming early and staying overtime and giving senators who wished to pose a question directly to you the opportunity to do so. It is very much appreciated. Do you have a final comment?
Mr. MacKay: If I might, Mr. Chair, only thank you for being here and for pre-empting. I know this is being done in a preliminary way and your work will continue.
But if I might, by your leave, table this technical document which provides further background information. We tabled this with the House of Commons committee. I would like your committee to also have the benefit of this material.
The Chair: Thank you very much. I appreciate it. We will let the minister depart and then we will continue with Justice officials.
Just as a reminder to members, we now have appearing before us Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector; Nathalie Levman, Counsel, Criminal Law Policy Section; and Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section at Justice Canada. We appreciate your appearance here today.
Senator Baker: Thank you, Mr. Chairman, and welcome to the witnesses. Congratulations on the excellent job you are doing in the department.
My question relates to the form of this bill. Given the fact that the Supreme Court of Canada noted in its decision that times have changed, we move on, there are different matters that affect legislation, it's an ever-changing world when it comes to legislation. It's a fluid process.
I don't know if you can answer this question, but when I picked up the bill of the department, I was struck by the repeated reference in the bill to crime comics. In proposed subsection164(1), it says:
. . . is obscene or a crime comic, as defined in section 163;
Now, section 163 defines a crime comic as being any publication, fictitious or otherwise, that shows violence. I'm paraphrasing. I turn the page and there are three references to crime comics on page 4 of the bill.
I know that the only litigation that is recorded on crime comics involves the Dick Tracy crime comics, Court of Appeal of Manitoba, and that has been used by the courts. It's a confined area of law that does not deal with prostitution or anything that is considered to be obscene, but simply deals with comic books; yet we have it entrenched in this bill. I know you're not changing the law, but you're repeating it.
Do you have a process in the Department of Justice to correct these things that belong back in the 1940s? In today's world, violence in comic books is a comical subject.
To me, it was an affront when I looked at it, and the continual repetition of a crime comic in this legislation. Do you have an answer to the question I'm proposing?
Nathalie Levman, Counsel, Criminal Law Policy Section, Department of Justice Canada: This bills deals with advertisements for sexual services, and the point of these provisions is to add advertisements for sexual services into the provisions that authorize takedowns, et cetera; it wasn't to substantively change the provisions. What you see is the phrase "advertisement for sexual services" inserted into the existing provision. It wasn't intended to address crime comics; it's just what was there.
Senator Baker: The drafters of the legislation had the opportunity to remove something from the law that is considered to be, in this day and age, rather comical. Is there any provision that you have to correct these things that are part of the Criminal Code that shouldn't be repeated, as it is in this legislation?
Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice Canada: Senator, the cabinet gave authority to amend the Criminal Code to deal with prostitution and prostitution issues. Cabinet did not give officials the authority to change the law with respect to comic books. That's the process.
We cannot simply say, as we open up a section, "Oh, I, as an official, think this is ancient and should be taken out." That is something for governments to give us direction on and for Parliament. Maybe this is an example of a good private members' bill or a senator's private business bill.
Senator Batters: Some Canadians have expressed confusion over the fact that Bill C-36 criminalizes the purchase of sex for the first time in Canada, yet the bill in most cases immunizes from prosecution the seller of sex — the prostitute. Could you explain the reason for this asymmetrical criminal law in this case and give us examples of asymmetrical criminal law in Canada to help people understand?
Ms. Levman: Maybe I'll start with the best example that I know of, which is existing subsection 212.4 of the Criminal Code which criminalizes obtaining sexual services for consideration from minors.
New section 286.1 is modelled on existing 212.4. It's exactly the same approach whereby you criminalize the person who purchases as the person who creates the demand for the exploitative practice, but not the person who sells because that person is considered to be a victim of that transaction, and that is the logic behind criminalizing the purchasing but not the sale.
Senator Batters: From a technical point of view, can you tell us how Bill C-36 addresses the concerns raised by the Supreme Court of Canada in the Bedford decision about the safety of prostitutes?
Ms. Levman: Well, it addresses the safety concerns in a number of different ways, and not just the safety concerns that were raised in the Supreme Court of Canada's decision, but the broader safety and social concerns that the minister mentioned this morning.
First of all, because prostitution is viewed as inherently exploitative, obviously reducing the incidence of prostitution will create greater safety because fewer people will be subjected to it.
Second, those who remain in it are not prevented from implementing certain safety measures that were outlined by the Supreme Court of Canada in the Bedford case. The minister went over what some of those are. For example, selling sexual services at a fixed, indoor location; hiring protective services; and also negotiating safer conditions for the sale of sex in places other than where those specific locations are designed for the use of children.
Also, I would say that Bill C-36 targets the exploiters and that also enhances safety — not just the pimps, the procurers, as existing criminal law does, but also the person who purchases, the person who creates the demand in the first place.
Senator Jaffer: When I read the Bedford case a number of times, the mantra for me from that decision was the violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence. The state also has a responsibility to protect sex workers.
With that in mind, tell me why you didn't think that the health and safety of workers should be mentioned in the bill's preamble. The minister mentioned a number of times the issue of young people. In other sections you have added it, and in other parts of the code it exists, but you didn't make it an indictable offence rather than a summary for a john that picks up a child under the age of 18.
My third question is: I understand you asked for a peer-reviewed report from the BC Centre of Excellence in HIV/ AIDS, and the Pivot Legal Society produced a report on the impact of criminalization of clients. Can you tell us the results of that study? I understand, as part of that study, they looked at Sweden and Norway. Can you tell us what the report concluded as to what is happening with the almost-Canada model that exists in Sweden and Norway? Does it protect the sex workers?
Ms. Levman: There were several questions embedded in there. Let me start from the last one.
Sweden's approach was evaluated by its government in 2010, and the results were that it did succeed in reducing the incidence of prostitution. Another study in Norway was just recently released. Unfortunately most of it is in Norwegian, but there is a little bit in English. My understanding is the Norwegian government has come to similar results.
This type of research is all referenced in that technical paper that the minister tabled today for your review, so if you look at the international context —
Senator Jaffer: I think you misunderstood. You asked Pivot to do a report on this, and I'm asking you what the results were.
Ms. Levman: Now, we didn't ask Pivot. I know that Pivot did a study.
Senator Jaffer: What did they say about the criminalization?
Ms. Levman: My understanding of their study is that it looked at the impact of a policy that was implemented by the Vancouver Police Department whereby they would only target johns under section 213, and it was a qualitative study, and the people who responded who were sex workers, about 30 of them as I understand, said that they didn't feel any more safe as a result of the implementation of that policy. That's my understanding, and that's one study of many, and so I would again direct you to the portion of the technical paper that goes over all of the various studies and uses larger samples as well on that point.
Now you mentioned something about purchasing sexual services for minors being indictable. It is a strictly indictable offence. Section 286.1(1) is the purchasing offence where sexual services are purchased from adults, and 286.1(2) is the purchasing offence where sexual services are purchased from minors under age 18. That is a strictly indictable offence and it raises the penalties. It is the same offence as in 212(4) but moved to Part VIII of the code to be with the other prostitution offences, and it would raise the maximum penalty to 10 years, strictly indictable, and has a mandatory minimum penalty of six months for a first offence and one year for subsequent offences.
Mr. Piragoff: I'll answer the first question, senator. With respect to the quote you made from the Bedford decision about the state's obligation not to make the situation more dangerous for sex workers on the street, this bill goes out of its way to ensure that it doesn't put more hindrances or facilitates the increase of danger. It does a number of things, as the minister indicated.
I believe Senator Baker asked the question about studies in the past where the result was people going to the back alleys because under the existing law both the seller of sex and the purchaser of sex were guilty if they tried to communicate a transaction. They wouldn't do it out in the open. They would go into the back. The comment was, well, that forced people into the back alleys and it's not safe.
They had to go in the back alleys where it's not safe because they couldn't do it at home. She couldn't work out of her apartment because if she worked out of her apartment twice it became a bawdy house. This law now says, no, you don't have to work on the street. You can work out of the safety of your apartment. You can hire a bodyguard. You can work with a friend out of the safety of an apartment, two of you together. As long as you don't exploit one another, you can work together and be safe. You don't have to go on the street. But if you do go out on the street now, you can still have a bodyguard, as long as it's a legitimate, non-exploitive bodyguard working with you to protect you on the street. You can have a spotter, a fellow prostitute or somebody else, taking down licence plate numbers.
The bill has removed a lot of the elements of the existing law which the Supreme Court of Canada said tended to push prostitution to areas of dangerousness. You can work inside. If you want to work on the street, you can have bodyguards and you can have spotters. You also have the ability now — this is the sex worker — unlike the current law, to screen your client because it's no longer a crime for you to communicate for the purpose of sale. You have the time. Your client may not have the time, but you as a sex worker have the time to screen the client as much as you want. You don't have to jump in the car quickly because you are afraid you will be arrested, because you won't be arrested.
The Chair: I've given you additional time. Senator McIntyre.
Senator McIntyre: Thank you to the three of you for being here. I simply wish to pick up where Senator Baker left off when he addressed the issue of form.
Bill C-36 comprises a preamble and 49 clauses. Some clauses make consequential amendments to other acts by replicating code offences in the National Defence Act, technical amendments, linguistic amendments, reformulations, the purpose of which is to clarify the intent of the legislator. I also note that several sections of the legislation are amended to include offences created by the bill, an existing list of offences with respect to the dangerous offender registry and the DNA sampling.
As draftsmen of this bill, are you satisfied with it? I'm not asking you if you agree or not with the bill, but are you satisfied with the overall drafting of the bill? I ask that because certain terms are not defined in the bill, such as the definition of "sexual services," "public place" and so on. Could I have your comment on that?
Ms. Levman: Thank you for that question.
Yes, I'm satisfied that the terminology, the phrases used in the bill, have meaning in Canadian law, and I would direct you again to the technical paper, which actually goes over the jurisprudence interpreting some of those phrases. For example, the phrase "sexual services" is in existing subsection 212(4), and there is quite a body of law interpreting what that means. It narrows it to the context of prostitution, but also gives a certain amount of flexibility for courts to adjust to new ways of effecting it. I feel that it does give a very clear standard for courts to apply. Again, "public place," "open to public view," these types of phrases already exist in the code. There is case law interpreting them. To define them would be potentially to alter that case law, which hasn't been in dispute and isn't difficult for courts to apply.
Drafting is always like that. When you use newer phrases, you might want to define it if there is no jurisprudential context for it, but where there is jurisprudential context, it's a decision to leave that jurisprudence in place and allow it to continue to apply to assist judges in interpreting those phrases.
Senator Joyal: Mr. Piragoff, if you can continue on the answer you were giving earlier on to Senator Jaffer in relation to subsection 286.5. On the basis of a legal activity performed by a prostitute in the context you have just described, what kind of legal link can you make between the fact that a person is performing a legal activity but the person who is part of that activity becomes criminally responsible?
Mr. Piragoff: If you look at the language used in the section that you referred, Senator Joyal, it says no person shall be prosecuted. It doesn't say no person commits an offence or no person is criminally liable. It says no person shall be prosecuted in the following circumstances. It's an immunity from prosecution. That doesn't mean that the person is not involved in illegal activity.
It's just like the situation of a trafficker of drugs. The trafficker of drugs sells drugs; that's a crime. The purchaser does not commit a crime. There's no offence of purchase of drugs, but that still is criminal activity. The purchaser, however, could be aiding and abetting, or by conspiracy if they buy a lot of drugs, be liable as a conspirator. That's why the provision also says no person shall be prosecuted if they aid or abet or conspire with someone else, such as one of the other people who might be involved. It's a distinction between saying no liability.
There are many other examples of asymmetrical offences. No child under 12 can commit an offence, but if a person counsels an 11- or 10-year-old to commit an offence, that person can be convicted of counselling, but the child can't be. We have lots of examples of asymmetrical situations where one person is immune while the other person is guilty.
Senator Joyal: But, indirectly, you deprive the person of a legal living by criminalizing the purchasing of the services in that context. In my opinion, there is a totally different context into which a pimp is recruiting customers on the basis of getting sexual favours, because then you could reason on the basis that there is a complicit link between the one who is the intermediary and the person who accepts that context.
For a prostitute who exercises her capacity of providing sexual services to a person who is willing to accept that and the legal status to buy them, I don't see how in court you will be able to sustain the legality of the criminal responsibility of the person who purchased the services in those circumstances.
Mr. Piragoff: I believe the minister answered the question already. The purchaser is being criminalized for the exploitative conduct of purchasing. Purchasing sex is exploitative conduct for all the various reasons that the minister gave and, therefore, that person is guilty for their own conduct. They are not guilty for the conduct of the person selling them sex. They are guilty for the fact that they are buying sex and that they are keeping a person in a type of activity which the government feels is harmful and, therefore, the government's view is that this is the victim.
It comes down to a policy decision in the end, so it's not purely a question of logic of the law. It's also a question of policy. Do you want to increase prostitution in Canada or deter and reduce prostitution? Once you make that decision, you have certain legal options as to how to affect that policy, senator.
Senator Joyal: You are again coming back to the decision in Bedford in section 7. My opinion in this very specific context of section 286.4 is, as you rightly described, in my opinion, in a previous answer, that there is no legal basis to get to criminality of someone who purchased a service that is legally offered within the context of section 286.5.
If I were to be charged, I would challenge it on the basis of the constitutionality. The person who offers a legal service, one that is totally recognized as being legal in specific circumstances, cannot be found criminally responsible to have purchased those services that are legally offered.
Mr. Piragoff: It's not a legal service that is being offered. It is a service which the bill says we will not prosecute you for. There is a difference.
Senator Joyal: Still, in my opinion, as I said, the person who of her own will offers a service in the context you have just described, within the confines of a private apartment, advertises it within the confines of a direct offer, who sends her driver to pick up the customer, who has a bodyguard in front — all those people who are part of the activity and are, as you say, immune from prosecution, but they are part of the activities and they are totally aware of the activities. The landlord is aware of the activities; everyone is aware of the activities. However, the person who will pay rightly for the service offered would be charged criminally. I really don't see the link of legality of criminality between something that is offered totally within the confines of the bill at present.
Ms. Levman: I believe that in law a criminal act is still being committed because they are party to one of the prostitution offences. The fact that section 286.5 immunizes them from prosecution is solely as a result of Bill C-36's position that they are victims that need assistance, but Bill C-36 isn't saying that their role is legal. It's not facilitating the sale.
Senator McInnis: Thank you very much.
I don't know how much you know about polls, but I want you to comment on the consultative process that Justice went through. Senator Baker mentioned earlier that there was a poll saying fifty-fifty; it might have been Ispos-Reid, but I'm not sure. That's a poll taken randomly. They select 4 per cent or whatever across the country.
I understand you had a paper and series of questions you put up online. You had a web page, used Twitter, did all of these things and posed the questions. I think 31,000 individuals responded: Do you think the purchasing sexual services from an adult should be a criminal offence? Fifty-six per cent said should be a criminal offence; 44 per cent not. Do you think selling sexual services by an adult should be criminal offence? Sixty-six per cent, or 17,801, felt it should not be, as opposed to 34 per cent. It goes on with another question about whether it should be a criminal offence to benefit economically from the prostitution of an adult, and 62 per cent to 38 per cent felt it should be a criminal offence to benefit economically from prostitution.
You obviously did that, and I think it was a worthy thing for you to do, but I would like your comment. Often governments try to bring about legislation that hits the majority of Canadians and, if they don't, it's to their peril. Sometimes you have to bring legislation where the majority is not there, but mostly you do.
Do you want to comment on that effort you made here? I just presumed you were experts in polls when I asked that.
Ms. Levman: It was a month-long consultation process whereby people got to send in their responses, and it was one of many different factors that informed the development of the bill. It was not just the public consultation. Obviously, the Bedford decision was extremely important as well as jurisprudence, research, et cetera. The government wanted to hear from Canadians as to what they thought the law should be and the results, although 56 per cent isn't a huge majority, do support the approach taken in Bill C-36.
Mr. Piragoff: There are differences between the public opinion poll and the consultation. The public opinion poll is essentially on the moment, on the telephone call. There is no background information, and it is an uninformed opinion: "What do you think?" and it's whatever comes to the top of your mind — yes or no; I support it; I don't support it. That's a public opinion poll.
A consultation, as you indicated, is different. It's more informed. There was a two- or three-page document about various options that exist throughout the world. Decriminalization is one option; the Nordic model is another as is straight prohibition. There was a stimulus so that the person who responds has more information. The disadvantage is that people who respond to consultation online will probably have an interest in picking up the computer and answering. There is a certain bias in that you have people who are actually interested in answering the question as opposed to the public opinion poll, which is a more uninformed stimulus question, but, of course, you have a broad base of the population without people maybe being interested in the topic and they have to answer it.
But with the two different techniques, if you look at the numbers, they are generally close. There are some areas where there is a difference, but basically they are very close together. Both types of polling techniques, one by consultation and one by public opinion polls, tend to come up with a close answer. Are they statistically close? I don't know. I'm not a statistician to say that, but if you look at the numbers, they are generally close.
Senator Plett: As a supplementary question, I didn't read the poll or the questions. Was one of the questions posed, how many people agreed or disagreed with the Bedford decision?
Ms. Levman: No. As Mr. Piragoff said, there was some background information included in the paper before you reached the questions and there was information on the Bedford decision there, as well as different policy approaches to prostitution, but the focus was forward-looking on what respondents felt the law should be, not seeking opinions on court cases.
Senator Plett: Thank you.
The Chair: We have a few minutes left and an opportunity for a quick second round.
Senator Baker: I will leave the repeated reference to comic books in this bill and I'll move on. Why it's there is just beyond me. Why couldn't it have been taken out?
Mr. Piragoff, your example of the drug trafficker I don't think is a good one because you said it's not illegal for somebody to receive the drug. Of course, it is. They can be charged with possession under a different section under the Criminal Code.
I think the point Senator Joyal is making is that it is difficult to conceive of a situation where one can be charged with being party to a legal offence, to a legal act. In other words, the act of prostitution, as you have described it and the minister described it, as far as the prostitute is concerned, is a legal act and is not an illegal act.
You say that the person will not be prosecuted; they are exempt from prosecution. The decision to prosecute is made in the first instance by the police; in the second, instance by the Crown. That's our system in Canada. So could we see a situation here with the passage of this bill where a search warrant were issued or warrants with listening devices on them into a prostitute's apartment to investigate an offence, in that you're saying the departmental opinion is this is an illegal activity for which one person will not be prosecuted? The second part of my question is this: Canadians look at this and say, "This is very bizarre." You make prostitution de facto illegal, but it's legal for the prostitute; the act of prostitution for her or him is still legal. It's rather bizarre. It's an indirect way, the de facto illegality of it; you do everything on the outskirts of it.
Is there anywhere in Canadian history that explains why Canada has chosen since 1869 in the Criminal Code not to criminalize the act of prostitution, why we've gone down the various roads we have in the Criminal Code in indirectly making it illegal but in actual legal terms it's a legal act?
Mr. Piragoff: That's where we beg to differ, senator. It is an illegal act, but for the provision which grants immunity. Even if the law only directly penalized the purchase of sex, the seller could be a party to that purchase, but for the fact that Bill C-36 explicitly says you cannot be prosecuted for that.
Without that immunity provision, a seller of sex could be a party to a purchaser, just as a purchaser of drugs can be a party to the selling, and that's how purchasers get caught up because they get caught up in a conspiracy to buy a large quantity. In addition to the fact that they may be possessors, they can also be charged with the actual trafficking.
It's the same with this. There's a difference between saying "no one commits an offence if," as opposed to "no one shall be prosecuted if." "No one shall be prosecuted if," which is the language, presupposes that there may be a crime there but we're not going to prosecute these people because they are victims. They do not need to be prosecuted. The policy decision is that they should be treated as victims. They need to find ways to get exited out of the system. They need to find ways to get into programs to help them exit, and you're not going to treat that by prosecuting them.
The Chair: We have three or four minutes.
Senator Joyal: Could you give additional explanation on section 286.2(4), which is another exception to the bill? It's the one that applies to persons who receive the benefit in the context of a legitimate living arrangement, or the result of legal or moral obligation of the person for whom sexual services benefit is derived in consideration for a service or good they offer, and so on.
Could you explain the objective of this exemption in the context of the discussion we just had?
Ms. Levman: What you're describing is the provision that outlines the legislated exceptions to the material benefit offence. The first three of those four exceptions are based on case law interpreting the existing living on the avails offence. The Grilo case found that people who are in legitimate living arrangements with others who sell sexual services are not covered by the living on the avails offence unless they are exploitative. That is Grilo, Ontario Court of Appeal. It's also referenced in the technical paper which explains these legislative exceptions.
The legal and moral obligation legislative exception is also from the Grilo case: supporting a dependent person who doesn't live with you, for example giving a gift, et cetera. Again, it's carving out an area in which sellers of sexual services can interact with others just like you or me without foisting criminal liability upon those with whom they are interacting.
The third exception comes from a line of cases starting with a House of Lords case, 1962, the Shaw case, that finds that, for example, if you're an accountant and one of your clients you know sells sexual services, you're still allowed to get paid for your services as long as they are offered on the same terms and conditions as they would be offered to anyone else.
The fourth exception responds to the Bedford case directly. It carves out an area in which people who sell sexual services, should they fear for their safety, et cetera, can hire a friend, an acquaintance, somebody who offers these types of services more informally, not Pinkerton or Brinks because they would be covered by the third exception, and provided that they are paying a proportionate amount for the service they receive and that person is not involving themselves in the selling of sexual services in any way — not encouraging or inciting them to do it — then there would be an exception there for protective-type services or other services, in the same way as if I feared for my safety and I wanted to hire someone to come and protect me.
Senator Jaffer: I wanted you to answer why health and safety of sex workers was not mentioned in the bill's preamble.
Ms. Levman: The preamble talks about the inherent exploitation in prostitution and the importance of protecting human dignity and equality, recognizing the social harm caused by the objectification and the commodification. I think that concepts like health and safety are incorporated in these types of concepts.
The Chair: Thank you, witnesses, for your time and testimony. It's very much appreciated.
For our next group of witnesses, please welcome, from the Canadian Association of Elizabeth Fry Societies, Kim Pate, Executive Director; from the Native Women's Association of Canada, Michèle Audette, President, and Teresa Edwards, Director of International Affairs and Human Rights; and from Walk With Me Canada, Robert Hooper, Chairperson, Board of Directors, and Timea E. Nagy, Founder and Front-Line Victim Care Worker.
Ms. Audette, apparently you're going to begin. We're going to have five minutes from each organization. Is that the intent or are you all planning to speak five minutes as individuals? I'm not sure how you're going to approach this. Five minutes by organization. We're fine with that? I'm not seeing any reaction here.
Senator Baker: Or more.
Robert Hooper, Chairperson, Board of Directors, Walk With Me Canada: From our perspective, we thought it was five minutes each, but it can be five minutes in total if that's appropriate.
The Chair: That is the general rule of thumb. I can show a little flexibility on that, but we want to give senators as many opportunities as possible to direct questions to you and to give you the opportunity to respond. We'll begin with Ms. Audette.
[Ms. Audette spoke in her native language.]
[Translation]
Michèle Audette, President, Native Women's Association of Canada (NWAC): I thank the persons gathered here, and our colleagues, who are going to debate with an open mind, I hope, a topic that weighs very heavily on Aboriginal women. First of all, I do a great deal of work for the Native Women's Association of Canada. It is a passion, but I am also the mother of five children and I am extremely concerned about the present and future of my sons, and especially of my young twin girls.
Thank you also for this invitation. We are going to reiterate our concerns on this very timely matter and share with you our solutions, in the hope that Aboriginal women will not be the forgotten ones in this bill.
The women of Canada deserve justice, protection, safety and dignity. The Native Women's Association of Canada has worked since 1974 with the provinces and territories in which we have sister organizations, which are also networks directly linked to the communities.
As an Innu woman, I live in my community on a daily basis. I can tell you that every day we hear and see this violence we are facing, we touch it, we taste it. Unfortunately our senses have been alerted to these unacceptable living conditions.
You know that there is also extreme poverty in Aboriginal communities and that women are the ones most affected by that. The placement of our children is still far too prevalent. In fact, at the first ministers' meeting in Prince Edward Island two weeks ago, this issue was made a priority.
Why I am talking about the fact that children are put in care? Unfortunately, you will have heard about Tina Fontaine, a young girl of 15 who was placed in a foster family and was subsequently found dead in a garbage bag near a river. This sort of thing has to come to an end in Canada.
We also know that in that same region, each week, we hear about a new case of a girl who has disappeared or has been found dead. I am talking about Aboriginal girls. You surely saw on the CBC News, The National, former street gang members, boys or men, state that Aboriginal women and runaway girls or girls who were in foster homes were easy targets for human trafficking, prostitution and the sex trade. This makes Aboriginal women and girls extremely vulnerable.
We have also done research, listened to, mobilized, and met with women who are unfortunately still in that environment, or have managed to get out of it. The vast majority of them if not all of them have stated that this was not a free choice that they made, not a decision they gave consent to, but that they did not have a voice and were forced into this, under threat of death if they tried to get out of it.
Human trafficking can involve girls as young as 7 to 12 in our Aboriginal communities. These communities are part of Canada. We are all responsible here. Most of the young women we met who are now women and grandmothers told us that they were extremely affected by the violence in their communities, but also within the broader Canadian community. Women who have worked in the sex industry or prostitution were victims of their pimp, their john, or the man who was selling them, and they were impacted by that.
Let me reiterate, in the few minutes we have left, that it is important to specify that these women did not have a choice. We asked them again: "If you had a choice, for the same amount of money, would you do this over again?" Their answer was categorical: "No!" It is important to remember that you have the legislative power to protect Aboriginal women, the power to choose zero tolerance for sexual violence, zero tolerance for the sexual exploitation of young Aboriginal girls and women, and to not criminalize them for that. Most Aboriginal women wind up in jail for the unfortunate reason that they live in extreme poverty and are trying to feed themselves and feed their families. Sometimes prostitution was a choice imposed by the need to feed their families.
Let us together find solutions that will allow them to get out of poverty, have decent housing, and the funds that are allocated to doing that should take into account the culture of the Aboriginal women of Canada.
I thank you most sincerely for these five minutes.
[English]
The Chair: Ms. Pate, I believe you are next. Please proceed.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you, Mr. Chair and committee members. I want to start by acknowledging the traditional territory in which we have the privilege of meeting, Algonquin territory. I think it's vitally important, particularly when talking about this issue as with many other issues we discuss at this table, to recognize the ongoing impact of colonization on our indigenous peoples. It is certainly brought home to me every day in the last 30 years where I've had the privilege, opportunity and, most importantly, responsibility of walking in and being able to walk out of prisons for women, particularly young women and children and even for men.
Our work with marginalized, victimized, criminalized and institutionalized young people, particularly with young girls and women, has meant that although this was not an issue that we ever chose to work on, it is an issue that touches us every day of the 30 years we have been doing this work. I never intended to focus on prostitution. I never intended to be arguing in this area. And yet every individual I have met, particularly since working with women in the prison system, has been touched directly and/or indirectly by this issue.
Prostitution, I would suggest to you, needs to be looked at as it is. It raises fundamental issues of equality and violence against women.
I want to say a word about some of what has been in the media about this, particularly social media. The discussions and media reports on this issue have been incredibly divisive, dismissive, disrespectful and harmful, particularly to those women with lived experience in the prostitution industry who do not support complete decriminalization. I think that is regrettable, reprehensible and quite unconscionable.
The fact that we have conversations and debate that cannot be respectful and have been reduced to abuse I think is something that underscores some of the difficulty in addressing this very issue. I encourage all people who are working on this issue to recognize the common ground we have and to pursue that common ground.
In regard to the comments that we're not having adequate discussion, I also want to say that in my experience there has been more discussion on this bill than any other crime bill, save perhaps the gun registry, ever put before — not ever, but certainly within the last decade. So the fact that we're being told there has been no discussion is mischievous, at best.
I want to talk about who we are talking about. When we are talking about prostitution, for the most part we are talking about the most disadvantaged and marginalized women of all. They are not women who come from a class who think they are making specific choices, but women who are forced into the prostitution industry because they have no other choice. To survive in this industry, they also have to survive increasingly inhospitable environments, both within prostitution and within the community, if they are not engaged in prostitution.
Presumably, we all agree — I hope this is a starting point — that we want to stop violence against women and that it's fundamental to our belief that our starting point will be to ensure that violence against women needs to be eradicated and that we should all support equality for all women and girls, and support all measures that seek to make women and girls equal.
I would suggest to you that if the case that has generated this bill had been brought by three men rather than three women, if they had brought the issue of prostitution to court, I respectfully submit that we would not be having these discussions right now. Women's groups and equality advocates would not be so divided if three men had sought to assert their rights to engage in free market capitalism of buying and selling the rights of access to the bodies of women and their sexual services.
As you know, throughout the country, we — our organization, our sister organizations and others, including ones who will present from a different perspective on this bill — are engaged in working on early intervention programs with young people, programs in the community, working with individuals in mental health settings, working with homeless, addicted individuals and those with significant mental health issues.
We see the move to decriminalize women as fundamental to women's equality. We also see it as fundamental to women's equality that violence against women — we see this legislation as part of the move to eliminate violence against women. It challenges the violation and commodification of women and girls as a means of helping to achieve that equality. This is not a case about sexual morality or sexual orientation, and those who suggest it is a continuation of those discussions, I suggest to you again, are trying to lead us down a different path.
So what is our history? Well, women and girls haven't always enjoyed equality. In law we are supposed to enjoy equality now. First we were told that we were the property of the men who married us or who fathered us. We now see that as rather ludicrous. We don't accept that anymore. In fact, now women have been declared persons in this country, and we're permitted to vote, and we're supposed to be equal, according to section 15 of our Charter.
In 1983, men were given the clear message that just because you marry someone, no longer were you allowed to rape them either. So we had the continuation of the notion of women's equality that men could be convicted of raping their wives if they force themselves upon their wives sexually. Some of you will remember. I certainly remember. It was during my working lifetime that that debate occurred, and it was seen as outrageous that a woman would expect to not be made sexually available to her husband if she married him. That would be seen as equally outrageous now as a position, I would suggest, for anyone taking the opposite view.
Now we have an opportunity to clearly articulate that women's equality requires that we no longer accept the commodification or sale of women for sex in ways that further enhance women's sexual inequality.
How do we get there? Some say more legal sanctions; some say no legal sanctions. The reality is that we already have laws in countries around the world that address violence against women and girls, including in this country. I don't hear anyone suggesting that just because we have not eradicated violence against women, we think it's okay and so we should not have any provisions prohibiting violence against women. That is essentially what we are talking about when we talk about decriminalizing women but not decriminalizing the act of buying and selling women for sex. We don't argue, debate or lobby at all that we will, in fact, revisit the notion that violence against women should not be criminalized. I haven't heard anybody raise that. I would suggest we would all think it unthinkable.
We don't want to see free market capitalism as an excuse. We want to see the end to violence against women. We are concerned that there are provisions in this legislation that would continue to potentially criminalize women — some of the advertising provisions, like the provisions around having individuals in areas where children will be, particularly when the majority of women we're talking about are poor single moms. We do not support the inadequate provision of resources for social services. We do support the need for things like a guaranteed livable income, adequate social services, health care. And we do support a provision that is not there currently and that we think should be, and that would be to ensure that, in fact, all those who have been criminalized for prostitution should have their records expunged in the way that was done when the —
The Chair: I'll stop you there.
Ms. Pate: Thank you. I look forward to questions.
The Chair: I'm trying to be as generous as possible here to get your points before the committee.
Mr. Hooper, please proceed.
Robert Hooper, Chairperson, Board of Directors, Walk With Me Canada: I'm going to defer to Ms. Nagy.
Timea E. Nagy, Founder and Front-Line Victim Care Worker, Walk With Me Canada: Thank you for the opportunity to appear before all of you today. I'm going to read my testimony, just to make sure we are on time.
My personal experience in the sex industry started when I was forced into it by traffickers at the age of 20, here in Canada. I escaped and started my life all over again. Years later, my boyfriend committed suicide and I found myself on a street on a cold winter day without shoes and money. I wasn't eligible for any social assistance from the government. Without any family support, my choice was either to become homeless or to go back to the sex industry for a few months until I got back on my feet. I decided to go back for three months. Neither time was it a real choice for me, and both times I experienced the same thing, which was violence by johns.
I'm a survivor of sex trafficking, a former prostitute and a founder of an agency that works with victims of sex trafficking here in Canada. Yes, they actually do exist. Our latest victim was 15 years old. Well over 90 per cent of the victims we deal with here in Canada are Canadian girls, and they are forced into sex trafficking and prostitution.
Yes, I know that we already have laws for human trafficking, but the law does not address the root cause of sex trafficking — that is the demand, which is the john, if you like to call it that way. It's very simple, actually. If the demand is decreased and there would be fewer buyers, there would definitely be fewer victims because the traffickers would go out of business. It's as simple as that. If you go to the store and you don't find your item, you will not keep going back to that store again.
If buying becomes difficult, demand will decrease, and there is evidence for that. In Sweden, the prostitution unit was taping a European trafficking ring conversation on the phone. The traffickers were trying to decide where to take the latest shipment of women to work in Europe. They quickly decided not to take them to Swedish land because business is so horrible there because there are no buyers. According to the prostitution unit, they only had three human trafficking charges in 2013 in the capital city. We had over 145 in Canada just last year.
The Canadian government is taking a huge step forward with this legislation. This legislation is finally targeting the real criminals — the johns and the pimps. I hear the pro groups loud and clear when they say, "Well, what about us? What about the women who are in it because they want to be in it? It's our choice, and there is no pimping, and we have the right for our safety as well." I say, "Yes, you do. But according to you, you made a conscious decision to enter into a very dangerous world." The trafficking victims didn't make that decision for themselves. You have the luxury of working four hours or ten hours a day if you like. You have the luxury of choosing your client or declining your client or the service you want to provide or don't want to provide. Trafficked victims don't have that luxury. You could call the police if a john hurts you. A trafficked victim can't.
The truth is that the real danger happens behind closed doors when you are alone with the john. Knowing his phone number or name or having a copy of his driver's licence will not keep you safe. It did not keep me safe in the past.
The other thing I would say is I'm very happy for you to make $2,000 to $3,000 a month, feed your family and pay for your education and lifestyle. Most of all, I'm extremely happy for you to have the luxury and, most importantly, your freedom to be able to sit at this table and have this debate. Our victims don't have that.
What about girls who are trafficked and kept in horrible conditions across Canada as we speak? What about their safety? What about their freedom? What about their rights to safety? They can't be here today to tell you the truth about johns and the pimps. They are not in the industry to buy a thousand dollars' worth of shoes. They are not in the industry to pay for college. They have been lured, manipulated and being kept against their will while serving 10 to 15 clients a day, like I did once, just so they can eat once a day. They're not doing this for money, to save up. They are doing this so they don't get beaten.
They work for months, they serve thousands of clients, they make hundreds of thousands of dollars for pimps and they will never see a dime from it. We believe there are a lot more victims in the sex trade than independent workers. But, yet again, you can't hear their voices, not because they don't exist, but because they are still unsafe and can't be here today.
That's why we have other agencies, front-line workers and experts to come here and testify on their behalf and tell you that they are not just part of our imagination. They are real. They are our daughters, our sisters and mothers.
Both sides do agree on one thing: This is a very dangerous business because of the johns. Otherwise, the pros wouldn't have asked for laws to protect their safety.
I know from working on the front lines that sex trafficking is a huge issue. Most of us in the country don't realize how bad it is. I see this every single day. Canadian women and girls are trafficked, held, tortured and manipulated by pimps, and girls' lives are ruined forever by johns. My question to you is: Do we create a law for luxury, convenience, to be able to support a habit? Or do we create laws to save lives, to create a healthy and safe future for our society?
I am supporting this bill because I believe we should create laws to protect our most vulnerable, and this bill will do just that.
Thank you very much for listening.
The Chair: Thank you very much.
We will begin the questions. We have a long list of questioners. We will begin with the deputy chair of the committee, Senator Baker.
Senator Baker: Thank you, Mr. Chairman, and a special thank you to the presenters here today and the witnesses.
Mr. Chairman, I would like to dedicate the rest of my time to Kim Pate to finish what she had started in her presentation. I have great respect for this witness. She is in case law, as we all know, and has given presentations to the Supreme Court of Canada, down to the superior courts in the provinces.
I wonder, Ms. Pate, if you could turn your mind back to your thought when the five minutes came up as to what you were going to say and continue on to the end.
Ms. Pate: Thank you very much.
Our organization had a position of decriminalization across the board until 2008. Part of the reason we changed our position was because we were seeing cuts to social programs, health care, as well as challenges to women's equality. Some of the most disadvantaged and desperate women were facing even more brutalizing and dangerous conditions on the street.
Some of you will remember the case of an individual who was picked up after he had attached booster cables to a woman and was electrocuting her. This was in the Downtown Eastside in Vancouver. I went to the prison and started talking about that example because the woman had not reported to the police and that man had never been reported to the police, even though he had a trunkful of evidence that he routinely was buying women to abuse them. This was at a time also that we were looking for women whose remains, we later realized, had been found on the Pickton farm.
When I spoke to the women in prison, one of the things they talked about was the fact that if they were the poorest, if they had mental health issues, if they were addicted and had criminal records, the likelihood of them ever doing anything but prostitution was increasingly becoming more remote. They believed they could be bought and sold to be brutalized, not just for sex, not just for brutal sex, but to be beaten, electrocuted, to be, in some cases — I don't think anybody ever consented to being killed, but that was seen as part of the reality of prostitution.
That led us to change our position and to argue that instead we should be clearly articulating, especially with NAFTA and others, the fact that we know there are people referred to as "bunny ranchers," the fact that we know in the State of Victoria in Australia, when it was legalized and brothels were opened, they became the fastest trading commodities on the stock market, that we needed to re-examine this position.
We re-examined it and decided we had to pair it. It's not just the decriminalization of women. It continues to be the decriminalization of women in recognition that their position of equality is fundamental to this equation. It also talked about denouncing the commodification of women and girls as part of a longer term strategy around equality and the provision of guaranteed livable incomes, adequate social services, health care, all of which had been alluded to but aren't fundamental to this legislation. We would argue it should be in the preamble and should be clear. Twenty million dollars is not sufficient, and that's what we're paying to have Preston Street fixed up. If that's all we'll put into this, it does not show a clear indication of equality.
No mandatory minimums: When we saw the focus of the law change to communicating for the purposes of solicitation, we argued — I wish we were wrong but we were not — that women would still be jailed and men would still avoid criminalization. That's exactly what's happened.
I have said across this country — since before this bill, since before Bedford — find me a man who has been criminalized and jailed for pimping or for buying sex. Unless they have done other things, such as beaten people up, they have not been criminalized.
You know my position. I don't want to see more people in jail. I don't think there is any illusion that attitudes will change, just as they have not fundamentally in some areas on violence against women, but we have had a change in attitude around what is acceptable in terms of how you treat women. I suggest this legislation continues in that vein, but there are things that need to be changed. We need to ensure there are adequate resources. We need to ensure there are no mandatory minimums. We need to take out the provisions that say women advertising can ever be criminalized, regardless, and we need to take out the provision that says a woman who may have to prostitute in her own home when her child is in the next bedroom may be criminalized. Until we have all the other options available so women can actually make choices — our position would not interfere with the very few who actually have a choice at all, yet it will interfere with the creation of increasingly dangerous situations.
I received a call from a woman an hour ago who was in that position, who knew many of the victims of Pickton, many of whom he was never convicted for but they were clearly there on the farm. She said, "Even if I would never call the police, if a guy knew I could call the police I would be much safer no matter where I started out, on the street or in my own home."
We are not talking about making it more dangerous. It already is incredibly dangerous for women engaged in prostitution.
[Translation]
Senator Dagenais: I thank our witnesses. My question is for Ms. Pate.
Let us take it as a given that the media, be that the newspapers or websites, publish full pages of advertisements for sexual services. These ads are often the main tool for pimps and individuals who exploit women. I am a former police officer with the Sûreté du Québec, and I can understand easily that there is a single number for the young women, which often leads to a central call centre.
What should we do to avoid that type of situation?
[English]
Ms. Pate: We need to be looking at much broader issues such as pornography. I had some of these discussions with my 15-year-old daughter as I was getting ready to come here. We are in Saskatoon now. She couldn't see more clearly who is being commodified in that community. She asked how come for all the Aboriginal girls the expectation is they will go out on the street, and they expect will go get jobs in retail. The fact that we have allowed women and girls in particular to be increasingly commodified is part of the problem.
Criminalizing them after the fact is not going to solve it. I would suggest in that situation, if we have opportunities, if you can contact individuals who are engaged in prostitution and provide meaningful options, real options for them to exit, I don't know, to a woman or to a young man — some of you know I had young men and women living with me years ago who were coming off the street in that situation. I don't know to a young person that they would not choose another option, as the Native Women's Association of Canada has just reinforced in terms of the research they have been doing.
What is not provided usually is an option for them to exit. The option is either be criminalized or remain silent and be beaten or continue in the situation you're in, and I don't think those are viable options.
Senator Jaffer: Thank you very much for all of your very powerful presentations. You are very moving.
I'll speak for myself and nobody else. No one here wants people to be pushed into prostitution or trafficking, and we've never heard of anyone saying they want to grow up to be a sex worker. The problem I have with this bill is they talk about prostitution not being a good thing, but there is nothing at the end to show that we are going to deal with helping people exit. What choices do we give people who are in this and how do we help them get out? The only way to do that is to have proper resources.
One of the main aims that has been outlined in this bill is to reduce prostitution or ideally eliminate it. How do you think this bill will achieve the goal? The goal is laudable; I'm all for it. I'm tired of passing bills that raise expectations with no resources.
Teresa Edwards, Director of International Affairs and Human Rights, Native Women's Association of Canada (NWAC): I would like to respond from the Native Women's Association of Canada. We are at a crossroads today in society, and the government has an opportunity to send the message to society that it is no longer acceptable to commodify women, as has been presented by everyone before me.
I was struck this morning when I woke up and read the headlines when I was signing into my email account and saw that the NFL had banned Ray Rice in the wake of this latest domestic violence. As Kim Pate laid out to you, years ago that was a completely acceptable practice, both legally and socially. As it moved from "legally," it slowly over time moved "socially." It was certainly never acceptable for society, per se, but it was not something that the NFL or a professional sports league would ever speak out about. But here we are, because you have had government leading the way with a statement, a change in philosophy, a change demonstrating new policy, if you will, or a vision for Canadians, and for women in particular, to say, "No, this is no longer acceptable; we are going to criminalize pimps and traffickers and find a better way for women."
There are plenty of opportunities. Aboriginal women are the fastest growing youth population. Over 80 per cent are single women. If this government or any government afterward were to invest in economic development a quarter of what they are investing in family violence, you will see a huge improvement in the social economic conditions of Aboriginal women.
We need to invest in Aboriginal women, in education and in income. Although Aboriginal women have higher education than Aboriginal men, it is not translating into income. We need a guaranteed livable income for all women, especially for those most marginalized, like Aboriginal women and immigrant refugee women. For them to have real options, we need the social programs, exit services, counselling and services for women who have exited.
Not to speak for Timea, but as she spoke of her own situation of being a trafficked woman escaping and then returning, was it a choice or a forced decision because she had no other social services available to her?
I see it as a crossroads right now. Is this an ideal bill? No, not by a long shot, but it is a step along the right path. We have to send that message to Canadians.
Ms. Pate alluded to it earlier, and I don't want to confuse the conversation, but it needs to be at the forefront of your mind, and that issue is pornography. It's not a moral issue. Children, particularly boys, have unlimited access to gonzo porn, violent porn, when they enter the slightest words on a computer. Penthouse is seen as the good old days.
When a boy who is 6, 7 years old, there are no measures in place to stop these children from having access on the Internet. Why is that relevant to this issue? Because at a time that their brain is forming, in their formative years, they are seeing images of extreme violence and sexuality against women. This is tainting their brains and their appetite and it is forming their sexual appetite, and these men are becoming police, judges, parliamentarians and politicians; and if this is their view of women, and this is creating their sexual appetite for women, it will only further support the use of prostitution, trafficking and the use and abuse of women as a commodity. That's something you need to keep in your mind when looking at this issue because it's hugely relevant.
With women selling services online or pimps using services online to sell women, it's a breeding ground for disaster for boys growing up, having access to Internet porn, and in particular gonzo porn, but that's something we will lobby you to change at a later date, having safeguards in place for children. I don't think anyone would dispute having safeguards in place for children having access to porn.
Ms. Pate: With respect, Senator Jaffer, your point is well taken; however, it's not a position necessarily taken by senators when other bills have passed which required the same sort of interventions. I would suggest a very strong message could be sent to ensure some of these other provisions are put into the bill so it can at least have an aspirational hope of achieving some of those equality provisions. I would urge they be there, all of the mandatory minimum sentences be removed, and that we instead look at clearly articulating that it is about creating a more equal situation for women and yet addressing violence against women.
Mr. Hooper: Timea and I have discussed this at length, and from our position we think three main things: One, $20 million is a start. It is more money than the U.S. government has put toward exit plans; however, we agree with our colleagues that it is wholly inadequate.
We have plans about social service exits and guarantees that should be made to echo Ms. Pate with respect to criminal records being expunged, et cetera. We have a very good plan that would take time to explain, and we do think there should be rehabilitation or recovery centres.
We can tell you anecdotally, from our experience, of the 300-plus victims that we have dealt with to attempt to move them to recovery and to survivorship, what is presently missing is once Timea and her team does front-line work, what next? This isn't a one- or two-week fix; this is a journey, if I could call it that, and there is not a place for housing, social services, or dental to get your teeth fixed because they have been knocked out. I could go on and on. That would be a dreamboat for us, that the next stages would come, which just echoes my colleagues' comments.
Senator McIntyre: Thank you for your presentations.
Ms. Pate, I have a question for you regarding the Supreme Court of Canada decision of R. v. Gladue, of which I am sure you are familiar with. As you know, the court has enunciated several principles in the case of Gladue. As I understand it, Gladue has sentencing principles that apply irrespective of whether there is a mandatory minimum or not. I also understand that Gladue compels a judge to explore options other than incarceration when sentencing an Aboriginal offender.
Now Bill C-36 calls for mandatory minimum sentences. Are you satisfied that Bill C-36 is consistent with the Gladue principles and that mandatory minimum sentences do not run afoul of Gladue?
Ms. Pate: I would say I'm not satisfied, and I would also defer to Teresa who is here from the Native Women's Association on this. If there is a mandatory minimum sentence, then the judge has very few options, except for increasing beyond that mandatory minimum sentence, unless he or she chooses to argue that they will not impose the mandatory minimum sentence.
In fact, the provisions in section 718.2(e), what are often referred to as the Gladue principles, would not necessarily apply in those sentencing decisions, so I think it is a problem. That's part of the reason we would support not having mandatory minimum sentences.
Senator McIntyre: But as I understand, Gladue applies irrespective whether there is a minimum sentence or not.
Ms. Pate: No, there may be some confusion.
Senator McIntyre: I know there are different interpretations to Gladue. That's why I'm asking you.
Ms. Pate: I don't profess to be the ultimate voice, but the Supreme Court of Canada has said that the provisions that were looked at in the Gladue case and in section 718.2(e) apply in other circumstances, like release decisions from prison, like decisions around dangerous offender and long-term offender provisions, but they have not said, to my knowledge, unless it's something very recent that I've missed —
Senator McIntyre: So irrespective of Gladue, you are concerned with the mandatory minimum sentences?
Ms. Pate: That's correct.
Senator Joyal: I want to emphasize the answer given by Ms. Pate because this question was raised in this committee on an earlier bill. When there is a mandatory minimum, the Gladue decision doesn't apply. The judge is compelled to impose the minimum sentence, even though he is facing circumstances whereby an Aboriginal person can show that because of past experience, family trouble, exploitation on the street, whatever other circumstances might be explaining the case —
Senator McIntyre: Even in the case of Aboriginal offenders?
Senator Joyal: Absolutely. When the minimum is provided in the bill, it is imposed. We have asked that question previously to officials of the Justice Department. I'm sure the Library of Parliament can go back into the minutes of this committee and confirm that interpretation.
Senator McIntyre: I don't want to cut you off, but I was reading the transcript from the House of Commons committee, and it appears to me that the witnesses for the Department of Justice had another answer. They were saying that mandatory minimums do not run afoul of Gladue. That's what I understand.
Senator Joyal: That's not what we heard on this case around the table.
We will have an opportunity, Mr. Chair, to check the record of previous witnesses in relation to that.
Ms. Pate and Ms. Audette, my concern is the logic of the bill. According to what the minister said to us this morning, the bill is based on prostitution equating exploitation. If it is exploitation and victimization, why would the victim be found guilty? Because if the person is compelled, as you all described, to survive, as Ms. Nagy mentioned, to eat one time a day, to feed her children, like the Aboriginal person might have described earlier on, why does the bill continue to criminalize a person who is forced into prostitution to eat once a day? There is something illogical, in my opinion, of the philosophical basis that prostitution is equating to the victimization of women. If it is so, then the bill would have to reflect that, and the judge, facing a situation whereby that proof or evidence would be brought to him or her, would have to lift the sentence of criminal responsibility, no criminal record and the possibility for that person to be admitted to social services.
It seems to me it is illogical in this bill on the basis of premise of the "Whereas" of the bill where it talks about exploitation, paragraph 1, and commodification in paragraph 2, to encourage prostitutes to report incidents. How will I report incidents if I will be found guilty? This, to me, is illogical. The bill pursues two sets of objectives which are contradicted by some sections of the bill. That's where I feel that listening to you there is an element of redefinition of some of the offences in relation to persons who have been proven to be the object of exploitation and pushed to prostitution to survive. That's why it seems to me there is something in this bill that doesn't stand the rationale of what the proponent says is supporting it.
[Translation]
Ms. Audette: Senators, in my brief presentation, I mentioned that we did not want to see Aboriginal women criminalized when they are in this situation; so something is illogical somewhere. The Native Women's Association of Canada knows full well that a lot of women were forced into the sex trade very young — not by choice — or as soon as they turned 18, and so on. We feel that they should not even be considered criminals. As you said quite rightly, why call if you know you will be called a criminal? This was said right from the outset. The Native Women's Association of Canada is concerned about Aboriginal women who are in extreme poverty and vulnerability.
[English]
Ms. Pate: I hope I was clear that we do not support provisions that would result in the criminalization of any women. I haven't been that clear, but let me try and articulate it a bit more clearly.
In the preamble there should be a clear provision not just that women experience exploitation commodification but that this is a position of inequality fundamentally that women start from, and children, including young men. Young men tend to age out in our experience, that we are less likely to see adult men in the industry for as long. There are some, but again, we would stand by our position that if people truly have choices, our position should not interfere with that.
If we inject the notion of equality, then we can see provisions that would say that we will not see the criminalization of those "engaged in," for whatever reason, and that those who choose to exploit, who choose to buy and sell, who choose to participate in the commodification, they can be criminalized.
Our position would be no mandatory minimums. We don't think throwing anybody in jail for this will solve it. We need to see other options, but that's our position, as you would know from other appearances, that we continue to have.
Our position around sentencing would be to continue to look at productive options to try and address these issues. Look at public education, but also we cannot separate these provisions from the need for some of the other social, economic and health provisions that need to be in place as well, similar to other bills that have been before you.
Senator Joyal: You have mentioned also the sections dealing with the advertising.
Ms. Pate: That's right.
Senator Joyal: And the one dealing with exercising prostitution within the schools.
Ms. Pate: We would suggest those be removed.
Senator Joyal: Perimeters of distance.
Ms. Pate: We don't support those.
Senator Joyal: Are there other sections of the bill you don't support?
Ms. Pate: Those would be the primary ones, but also all of the provisions that impose mandatory minimums, including some mandatory minimum sentences already on the books. We think those should be repealed.
[Translation]
Senator Boisvenu: Thank you very much for your very sincere and meaningful testimony.
Ms. Audette, it is always a pleasure to see you again. I want to take this opportunity to congratulate you for your commitment and for the mission you are accomplishing for your community. I am very concerned as well, and I was in fact involved in the past in looking into certain cases where girls disappeared; I am thinking, for instance, about those two young girls who disappeared from Maniwaki and were probably forced into prostitution.
Prostitution is a scourge that affects your communities enormously, but it also affects non-aboriginal communities. I attended a meeting a few months ago in Longueuil where I met some youth centre workers. In Longueuil, they are following up on some 200 young women of 12 and 13 who are involved in the sex industry to pay off drug debts.
This is a vicious circle. They start using drugs very young and in order to pay off their drug debts, prostitution too often becomes the solution.
It is an easy solution that leads to dropping out of school and to suicide. The scourge is terrible and the long-term impacts are often permanent.
With this bill our government has committed to investing $20 million. As we saw earlier, that is twice what the Americans are investing. We have to find other means of preventing prostitution, in addition to criminalizing the clients. In any case, it is often too late; women who have been involved in prostitution for a decade, or sometimes two, are completely destroyed on the human, economic and social levels, and rehabilitating them is impossible.
I would like your opinion on a preventative approach for the people of your community particularly, regarding these funds that could be invested not only in recovery, but also in prevention.
Ms. Audette: Thank you very much for the comments you made at the beginning of your statement. I have a great deal of respect for the work you have done, especially on a personal level.
We agree on this side to say that $20 million is not enough in the case of a major problem. However, as Mr. Hooper said, it is a start.
As you know the Native Women's Association of Canada has for a long time been asking for a national public inquiry to look into the cases of disappearance and murder that are unfortunately linked to the fact that women have been led into human trafficking, prostitution and so on, and then find themselves on these lists of women who have disappeared or been murdered. That is one solution among many, but it will take time.
We obtained the support of the 13 premiers to create a round table with the federal government around which the ministers responsible for Aboriginal files, initiatives and programs will be able to sit down with the Native Women's Association of Canada to find urgent and concrete solutions. We are also talking about prevention in the context of those solutions, involving both men and women, and so of different approaches. There is also the global approach. We hope that we will be able to sit down with various ministers, and thanks to this bill that aims to counter prostitution in Canada, ask them to help us to develop tools, training, and awareness-raising means to reach Canadian men and women as well as our communities.
I think this is extremely important. Criminalization is all well and good, but we must not forget that it fills up the prisons and is very expensive for taxpayers.
I advocate an adapted prevention approach for Canadian society, but also for Aboriginal environments.
Senator Boisvenu: I greatly admire the work of Canadian police officers throughout Canada. I will ask you a question you may find a bit awkward, but I am going to put it to you anyway.
In police and legal intervention — I am referring to the work police officers do to solve problems of all kinds in your community as well as to the legal process — are Aboriginal and non-Aboriginals treated the same way? I have had the opportunity to look at many files regarding the disappearance of Aboriginals, and I got the impression that they were not treated with the same level of energy as other cases. Should police officers not be made aware of that reality?
Ms. Audette: If I look at the report of the British Columbia commission on Vancouver's Downtown Eastside with regard to the relationship between police and the victims, the victims were for the vast majority Aboriginal women — as pointed out in the Human Rights Watch Report — and in looking at this one gets a very dark, nefarious picture of the relationship between police officers and Aboriginal women. Files regarding justice or public security are handled differently, and not in a good way.
However, I think we need to be positive, and rather than quarreling, we could focus on prevention. We have reached out to the RCMP, and soon we will also contact the Canadian Association of Chiefs of Police and the First Nations Chiefs of Police Association to point out that there is no law that makes the sharing of information among police corps mandatory; however as an organization we would like to develop training, information and tools for intervention.
The best example I can give you is this one: the Quebec Aboriginal Women's Association began in 1998 to approach the First Nations Chiefs of Police Association to teach them how to intervene in cases of family violence and sexual violence in the communities. At that time we provided two hours per year to the young police officers; today, this training is mandatory and lasts two days. In this way, we are dealing with the problem upstream.
So I think that we could blame one another, but that, if we were to work together over the next 5, 10, 15 years, police forces and women's groups could manage to do good work.
[English]
Senator Plett: Thank you to all the witnesses for coming here today. I'm certainly happy to hear that all of you support this particular piece of legislation that will serve to protect our most vulnerable, and I also appreciate your support for the abolition of prostitution. I support that as well.
I have two questions that I will pose to Ms. Nagy and I would like her to respond. I think in her presentation she made it clear that she, probably out of everybody in the room, has the most direct experience in much of what we are talking about. I appreciated your sharing your story with us and commend you for the work you are doing. I would also like the Native Women's Association of Canada to respond.
We have critics of this bill, and many of them say that prostitution can be a legitimate profession when proper safeguards are in place. Further, many of the same critics would say that prostitution is a free choice between consenting adults many times. We have talked much about children, and you got into the profession very young.
How do you respond to the critics that say we are taking too large of a step because, if there are safeguards in place, it would be okay, and we are also interfering with consenting adults engaging in prostitution?
Ms. Nagy: Thank you very much for those questions. I hear them all the time.
I do believe there are women out there today who believe that this is their choice, and I will not go any further into that, but I know that they believe that this was their choice. I believed that it was my choice when I went back because I needed the money. Ten years later, when I had gone through a lot of counselling, I looked back and realized that I was sexually molested when I was a child. Then I was trafficked and then it was my normal, so of course I believed that it was totally fine to turn a few tricks to make money for food. Ten years later, right now, if someone wanted to have sex with me for money, I would feel like I have been raped because now I feel clean and I have been through a healing journey.
But to respect where they are in their life, that's why I say I believe that she believes, right now, that this is her choice. Again, I want to say because this is one of our ways of working with victims as well, that this is her journey. This is her choice, and if she believes that is her choice right now, I don't have the right to judge that. That's not my life; that's her life. But I do have the right to help her along that journey to make it as safe as possible.
When we talk about women who want to do this and it's between two consensual adults, I would also like to put the spotlight on the client.
The woman says, "He comes in my room; he pays for sex; it's between him and me." Well, what about his wife who's at home with five kids? We had cases where we were in a parking lot with the police officers and we knew where the husband had just come out of. The husband went home and there were the five children with the wife. Doesn't the wife have the right to know where her husband has been? I highly doubt that that wife actually knew where he was. Don't the children have the right to know where he was?
If this is consensual, this john goes to the wife before he goes and pays for sex and says, "Sweetheart, I'm going to go for an hour. I'm going to pay $350 and I'm going to have unprotected sex because that's how I like it and you don't like it that way anymore, and let's have this conversation with the children, too. Are you guys okay with that?" That is consent for me. When it's just between this one man and one woman behind closed doors, I don't take that as consent.
In the event that the buyer or the man is single and there are all kinds of reasons why he's doing this — again, it's his choice — I'm not going to argue that there are cases when it is consensual. But my answer to all of that is that, yes, there are women who are in this business because they choose to and I believe that they believe that they are doing this because they want to. They have their freedom and they have been able to keep doing this business somewhat safely, but they are the ones who brought this argument forward, saying that it is not safe and we need new laws. So why are you choosing a job that is so dangerous and why are you looking at the government to keep you safe?
What did we do for miners and fishers? I can't remember what we did back in the day in Nova Scotia where eventually the government said, "This is a very dangerous business; we are closing it down, and you are no longer allowed to do that. If you want to do this, you need to do this on your own."
The last comment on this is that we both agree that this is a very dangerous business. This is not like working at McDonald's, as I heard my pro-activists on television saying. This is nothing like working at McDonald's. You are going to a job where it is guaranteed you will be abused, raped or violated by a john or a pimp. I have a different job now, and I can't say that I have that fear going to work every single day. I'm sure you don't have that fear, either. I'm sure the person at McDonald's doesn't have that fear either. I don't think we can call it sex work. Just because it's been around for so long doesn't mean it's okay. We have been murdering people for so long. Is that okay? Should we just drop the laws?
Senator Plett: So your choice was either to have sex, eat or be beaten? So you had a choice.
Ms. Nagy: Oh, yes, I had a choice.
Senator Plett: Maybe you would like to comment.
Ms. Audette: Shortly, and I guess my colleague will, too.
For 20 years now I've been with Quebec Native Women and Native Women's Association of Canada, and between that, deputy minister for status of women in Quebec, and I never met an Aboriginal woman, a young woman or a mother, who told me, "I did it by choice." It never happened, but I don't say I've met every woman across Canada.
What I'm saying today is with the research, the knowledge, the expertise and the passion we put into it, we don't judge those women that I haven't met or heard, because probably they are there, who made it by choice. But one day if they decide to go out in this place, then the government has an important role, provincial as well as municipal, to support the organizations that help women come off that industry.
Ms. Edwards: I want to bring it back to the comment I made earlier about the crossroads and the decision of the government. We need to keep our focus not on preventing women from going into prostitution but preventing men from buying prostitution. We need to look at the role men play in this. As I mentioned, with the saturation of prostitution and gonzo porn, where violence is a huge role in prostitution, forming young boys' minds, we need to have a clear message from government, from society, from leaders, from senators, from organizations and from sports agencies that it's no longer tolerated that we buy, use and abuse women.
This isn't a question of consenting. We're not going to fight for the rights of a few who might argue that this is between two consenting adults when we know the high rates, 97 per cent, are subject to violence by johns or pimps. Or they can't leave; even if they so-called "chose" to go into prostitution, they have a debt incurred and he says to them, "You have to pay me off $100,000 before you can leave." None of us have that kind of choice.
When we go to our work, we give our two weeks' notice or we leave without notice and suffer the consequence of not getting paid. That's not the case with women involved in this.
I want our attention to stay where it needs to be, also on the huge role that men play in this. We see that classic example, Bob beat Mary. What happens out of that classic example? It becomes Mary is a beaten woman and Bob is gone; Bob is out of the equation entirely. Suddenly government officials and civil society are working to deal with Mary, the beaten woman, and what we're going to do for Mary.
Hold it. What are we going to do for Bob, the fact that he beat Mary in the first place? It's the same with missing and murdered women. It's not about what we're going to do to keep these women buddied up or not hitchhiking or being safe. It's what are we going to do to stop men from killing them? That's a huge problem. What are we going to do to stop men from killing our women, beating our women, raping our women and buying women? We've got to move past this. We need a new vision for Canada. I have to believe you all want a newer vision for Canada than simply buying and using women.
The Chair: Thank you.
I have a quick question for Ms. Pate. Senator Baker referenced your extensive background in law in the preliminary to his question. I could be wrong; I've heard that you are now also, as well as your responsibilities that have you appearing here today, serving as a law professor at the University of Saskatchewan.
Ms. Pate: I'm currently in the Sallows Chair in Human Rights at the University of Saskatchewan Law School.
The Chair: I'm not sure if you're comfortable with this, but I know, reading the clips that came out of our meeting this morning with the minister, the bulk of it that I have noticed so far has been referencing the issue of constitutionality. Given your background in law, I wonder if you have a view with respect to the constitutionality of the legislation.
Ms. Pate: Certainly, our view would be in light of the fact that section 15 allows for proactive measures to encourage equality provisions to be implemented, I think the provisions that would call for women to be decriminalized and for those supports to be put in place should survive Charter scrutiny. Certainly, there were discussions about asymmetrical application of the law in other areas. For the most part, I would support that.
I do think, as I've already said, there are parts of the law that I would encourage you to change and adapt, but I think there is certainly an opportunity for this to be implemented in a way that meets the constitutional requirements, and adding into the preamble the fact that we need to ensure there are equality provisions there that would help with that.
Senator McInnis: This has been very enlightening. In fact, as you can appreciate, over the last few weeks we have been inundated with information with respect to prostitution in Canada. This is not the question I intended to ask, but sitting here listening, it's perhaps appropriate I'm the last one.
First, this issue now has been given a high profile. This is a glorious opportunity. But as I sat here, I heard commodification of women by men, inequality under the Charter, which of course I knew, percentage of native women involved, survival sex, drugs, buying food and clothing for children, trafficking of humans, children involved in the sex trade. I was provided with bibliographies of something like 199 articles, books and papers that were written on this issue. You've all said that you think that this bill will be helpful in bringing down the number involved in prostitution. You also talked about the fact that the $20 million perhaps will not be enough. I'm not sure what amount would be enough if there's not infrastructure in place to deal with the socio-economic problems.
It seems that there are all kinds of organizations like yours from coast to coast to coast. Is there a need for some way of channeling this so that we do actually target the issues and actually try to come up with anything but a quick fix? I don't think the quick fix is there. This bill is probably going to pass and become law. Then what? Where's your high profile then? I'm hearing from you that this is an ongoing socio-economic problem. What's your suggestion to government as to how we're actually going to bring a resolution to this at some point?
Ms. Nagy: I'm going to start, and then Mr. Hooper has a couple of thoughts.
We have already talked about this. The first things are prevention and education, and not just educating society and men but educating law enforcement and police. Everybody says, "Well, what is that going to do?"
According to studies, the majority of the johns are between the ages of 25 to 45, college and university students. It all starts in school. "Where do you want to go for your stag party?" "To a strip joint." Let's have education about that. When you start at an early age, you educate the men who provide the demand, so you slowly decrease that, which means they're not going to buy the girls and then the demand is not going to be as strong.
There is no quick fix for this. We have messed up society for the last 40 years, and we're not going to fix that in the next two years. We need to do it in baby steps. You eat the elephant one bite at a time. This is the first bite. We need to do that.
You educate men and educate girls: It is not okay to be a prostitute; it is not okay to sell your body, and so on and so forth. Make it not acceptable in society. He will tell you that he did this as a research study, and it will take six seconds for a man to buy a girl online in Canada. What kind of a society do we live in if we allow that?
It's all about prevention and education. You start with that to make sure no more become a victim. Then you have to take care of the victims that are currently involved. For that, yes, there are organizations across Canada trying to help, but there isn't enough funding for those organizations. We do have to become one, and I mean all of us, not just us and then the "pro" groups. We would love to have education from them so they can educate the ones that are currently in it because it's not right to force them out of it. We have to come together as a country, all of us, and put our differences aside and talk about how we can do this together.
Funds should probably come from the government, but the corporate world needs to step up big time. There is a lot of money in Canada from all kinds of corporations, and they are doing nothing against it and they are doing nothing for it, for example, hotel companies. I think we can look for extra money and funds from corporations in Canada. It's not just the government's problem. This is society's problem, and everybody has to come together for this.
Ms. Pate: I want to be clear that this bill alone, even with the amendments that we've suggested, would not solve this issue. Having been in the last year in Amsterdam and in Germany and in Thailand, we know what happens when you allow free market capitalism in this area. We've seen the demand driven up. We've seen the incredible influx of women being trafficked in. Trafficking is already happening in Canada, not just as Ms. Nagy has talked about but also between communities, whether it's women from the East Coast to Central Canada or all around. When I was working with young people 20 some years ago, it was the triangle between Vancouver, Edmonton and Calgary that young Aboriginal women in particular were trafficked.
What we really need to be focusing on, like many of the crime bills, is fundamentally looking at a much broader approach. Putting that in the preamble would be helpful, but to pretend this bill alone would solve this issue would be silly, quite frankly.
Mr. Hooper: Back to the question of choice, generally speaking, we echo that we have not had anybody come to our service saying they chose to be trafficked or prostituted.
We have seen two things. Two studies came out about what the Canadian population thinks about prostitution. Quite honestly, the numbers were surprising to me that many people thought legalization was an option. What that said to me and to our organization is that Canadian society needs to be educated because they think that's okay. However, if you drill down and ask more than the question of whether it should be legalized or not legalized, if you said, "If that was your 14-year-old daughter or son, what are you going to think about that?" I think the answer will be vastly different to our society and to the business leaders in this community.
The last point that we see, and we've probably said it a number of times, is about the socio-economic situation that we're in and particular groups are in within this country. There has to be something that eradicates that. Theresa and Michèle may have said 40 years and I think you may have said 200 years that we've been trying to solve this issue. That's the root of the problem, not only awareness of society but fixing that problem so people aren't making that fake choice at 14, 15 or 16. We need to get to the elementary schools and high schools from that perspective and educate both sides. We often talk about we're going to fix this problem because we're going to tell girls not to be at Tim Hortons at 10:35 in Kapuskasing, Ontario, because that's when the pimp is going to show up and take you to Toronto. We also need to tell the 14-year-old boy in a Toronto school that he shouldn't pay $150 to have sexual services from that girl from Kapuskasing. We need to educate the entire society.
Senator Baker: Just to verify what our witnesses have said here today, Theresa Edwards and Kim Pate specifically, about the application of mandatory minimum sentences to Aboriginal offenders, Senator McIntyre was absolutely correct. We did a fast check and found out that yes, the Department of Justice did give evidence before the house committee, and the word was that mandatory minimums do not run afoul of Gladue. Gladue is a principle that would be applied in light of the mandatory minimum.
However, Senator Joyal and Ms. Edwards and Ms. Pate are absolutely correct, because we just checked and found that just three months ago, in June, the Supreme Court of Canada, in R. v. Anderson, said appeal allowed by the Crown and sentence varied to mandatory minimum sentence; "Crown prosecutors are under no constitutional duty to consider the accused's Aboriginal status."
You are absolutely correct. There may have been some discussion in the courts as to the truthfulness of that, and Senator McIntyre was correct in quoting the Department of Justice in the House of Commons, but it's obvious that you're correct; they were wrong. Our witnesses here, Ms. Pate and Ms. Edwards, were absolutely correct that that is the standing law.
Senator McIntyre: That clears the air.
[Translation]
Senator Dagenais: My question is for Ms. Audette. Of course, I have heard all the presentations and I feel that all the arguments are well-constructed and should be able to steer young women away from prostitution.
Some of you have access to forums and media. Can you explain to us why the message is not directed more toward young women? We have heard from all of you, and I do not understand why your message is not more directly intended for young women. Can you tell us more about that?
Ms. Audette: Let us be honest. I think the message is getting across. I just came from the Native Women's Resource Center of Toronto, an organization that did not know what I looked like. They did not know about my strength, my passion for murdered and missing women, or my desire to help build a better Canada.
The simple reason behind that is the fact that we are not on the ground. The Native Women's Association of Canada is here with you right now instead of being in the field. However, our provincial and territorial organizations are doing their best.
My dream, should this round table become a reality, is for us to be able to sit down with the RCMP, Sûreté du Québec — Quebec provincial police — the OPP and other police associations in order to discuss how to provide direct intervention. That intervention should be a joint effort, so that those young women would know that organizations such as the Native Women's Association of Canada and Femmes autochtones du Manitoba, a provincial organization, exist and that municipal authorities can provide them with support services.
Although we are trying to use the Internet to increase our presence, we cannot be everywhere at once. As I said, when we are here, we are not on the ground, and we have only a small team of 13 people covering a very large area.
Senator Dagenais: You look familiar. I have often seen you on television lately. In any case, we hope that Radio- Canada's mandate is nation-wide.
Ms. Audette: A woman on the street dealing with homelessness or extreme violence is not likely to watch the news. That is not sarcasm. I do think that our artists, musicians and people on the ground also have an extremely important role to play in educating the public on these issues.
[English]
Ms. Nagy: There are reasons some of our youth still don't hear our voice, because we are up against the mainstream media — musicians, rappers — and it is embedded in our culture that it is cool to wear short skirts; it's cool to have high-heel shoes. That whole message is in our society right now. Our job, as a society with the prevention programs, is to bring that voice back down and say it's not cool to be pimped.
Ms. Pate: The other thing is, we've had the hyper sexualization of young women in particular, but add to that the hyper responsibility, this notion of choice. When I go out and speak at a public event, I'll ask, "How many of you here are planning to have a buddy or have someone walk home with you?" Almost invariably it will be the young women who have received that message loud and clear that it's their responsibility to make sure they're safe. If we had a headline, after someone has been attacked, that stated "No man is allowed out after dark unless he's accompanied by a woman who will vouch for his credentials as a safe man" — yes, of course, people laugh. Yet we don't laugh when we say that a woman should not be walking alone at night by herself because it may be unsafe. We need to fundamentally change those ideas about whose responsibility it is to keep us all safe. It's not just the individual woman.
Senator Joyal: Have any one of you reflected on this bill and the impact it will have on the improvement or not of the health condition of the women involved in prostitution?
Ms. Pate: One of the issues we've looked at for some time as part of the reconsideration of our position leading up to 2008 was would it be healthier to have what many have advocated as red light districts or brothels? The reality is that in areas like in Amsterdam, Thailand and other jurisdictions, including New Zealand, where they have those options, the women that we walk with and are part of our organization and we work with generally would not be able to access those because of their records, addictions or mental health issues. The reality is that those women are not likely to benefit from any kind of option that would regulate or legalize. In fact, in those countries where we've seen that kind of regulation and legalization, admittedly New Zealand is going to be one of the last to go largely because it's an island and it's next to another country that has legalized prostitution as well. In most other jurisdictions we've seen the demand go up, the influx of others into the country and the rate of violence against women also.
Senator Jaffer: As you all know, because I've talked to you privately, there are many things in this bill that bother me. One of them is putting women and girls together. They are such different issues. I'd like to hear your point of view about whether there should there be two different bills. The challenges that young girls face are very different from women. What is your opinion?
The Chair: I'm sorry, but not lengthy questions or responses. We only have two or three minutes. If you can condense it, it would be appreciated.
Ms. Edwards: Although I think we need to have separate services for women and girls, the distinction is that girls are trafficked. They come of age and they're told it's their choice and they are adults. While I think we need to move with this legislation and continue to work on the nuances and the improvements we want, the additional things, we need to have this foundation and we need to have it now. I don't think we need to separate it to have something specific for girls and something for women.
The Chair: Thank you all for the helpful and informative deliberations and contributions to our hearings. We have a lengthy list of witnesses and we want to give them all an opportunity to contribute to our deliberations.
Our next panel appearing before the committee, from the Asian Women Coalition Ending Prostitution, Suzanne Jay and Alice Lee, who are members of the organization; appearing as an individual, K. Brian McConaghy, Director, Ratanak International; from The Evangelical Fellowship of Canada, Julia Beazley, Policy Analyst; and from Pivot Legal Society, Katrina Pacey, Litigation Director, and Kerry Porth, Chair of the Board of Directors.
Suzanne Jay will lead off. Please proceed.
Suzanne Jay, Member, Asian Women Coalition Ending Prostitution: Thank you very much for the opportunity. The Asian Women Coalition Ending Prostitution works to advance equality for Asian women and to promote our meaningful participation and leadership in civil society. We believe that prostitution is male violence, and we work toward the abolition of prostitution.
We applaud the intention of the bill to protect women's dignity and equality rights. It's consistent with the principle that all Canadian law is to be understood and interpreted in the context of the Charter of Rights and Freedoms. The preamble of the bill demonstrates an understanding of the systemic nature of prostitution and the consequence of undermining women's equality on the basis of race, national or ethnic origin, colour and sex.
We appreciate that the bill acknowledges the danger that's inherent in prostitution and the profound exploitation that's done by pimps, brothel keepers, procurers, advertisers and customers of prostitution, especially as it affects Asian and other racialized women.
We recommend strengthening the preamble by including an acknowledgement of the disproportionate impact of prostitution on racialized women and to reference the international agreements that Canada has signed committing to eradicate discrimination against women and to protect trafficked persons.
We support the section of the bill that criminalizes advertising of sexual services because of the role that advertising plays in normalizing and entrenching ideas in people's minds. In Metro Vancouver, Asian women are dramatically overrepresented in the advertising for prostitution. Asian massage parlours are embedded in neighbourhoods across Canada, and the advertising for sex with Asian women is so regularized that it's virtually invisible. Stereotypes that we have to deal with, such as Japanese schoolgirl, China doll, subservient and eager to please, they dehumanize us and sexualize Asian women. The normalization of these stereotypes blocks our access to our Charter rights, regardless of whether or not we are prostituted.
Pimps, procurers, brothel keepers and advertisers, and the others who are involved in the sales and marketing of prostituted women, they cater to these very deeply racist demands, and it's in their commercial interest to normalize these stereotypes in order to grow the market for their product.
The practice of prostitution overlaps with the violence of wife battering, rape and incest. These are all acts of sexist violence that are usually committed by men in private venues, where privacy is used to confine women, reinforce the attacker's authority and hide the violence from public view.
Being indoors with a man does not increase safety for wives, incested children or prostituted women. However, we do recognize that indoor venues, including Asian massage parlours, do enhance safety for men. They shield pimps, brothel keepers, procurers and johns from scrutiny, and they hide the violence that is intrinsic to prostitution. We are worried that there is now a loophole in the legislation for pimps to disguise themselves as bodyguards.
We support the bill's tailored approach to target the source of the harm to prostituted women. We support that the bill makes a differentiation between those who depend on a woman's income without caring about how it's earned, such as children and hairdressers, and those who are parasitically invested in recruiting and trapping women into prostitution, such as pimps, brothel keepers, procurers and johns.
The parliamentary committee has already indicated they understand there is a problem with criminalizing communication in public areas. The amendment to target women only around schools, daycare and playgrounds still weakens the legislation because criminalizing women for their own exploitation undermines the objective of equality.
Human trafficking is intrinsic to Asian women's experience of prostitution, regardless of what country we come from. Trafficking is an area that my colleague Alice Lee can speak to in more detail.
We appreciate that the bill prevents the transformation of members of organized crime into regular businessmen. Currently, the human trafficking law we have only applies to the traffickers and does not apply to the buyers. Bill C-36 makes it illegal for a man to buy a trafficked woman. However, the bill does not change the balance of power that organized crime and human trafficking operations rely on because current immigration law supports the exploiter. We recommend granting women in exploitative situations landed status upon arrival to Canada in order to reduce women's vulnerability to recruitment and to contribute to successful exit from prostitution.
In conclusion, a made-in-Canada approach to prostitution has to be a lot more robust in order to be effective in a racially diverse country. Criminal law is limited in that it can only address violence and exploitation after it happens. The Asian Women Coalition Ending Prostitution calls on our federal government to provide comprehensive social supports to interfere with recruitment and to facilitate women's access to our Charter rights.
K. Brian McConaghy, Director, Ratanak International, as an individual: Mr. Chair, ladies and gentlemen, thank you for the opportunity to speak to Bill C-36.
My name is Brian McConaghy, I have 22 years of experience in the RCMP and 24 years of directing a charity that assists youth recover from the abuse of the sex trade.
I would like to commend the government for its efforts in Bill C-36 to identify those prostituted as victims rather than criminals. I also support criminalizing those who purchase and benefit from the sale of Canadian women. I do not support legalized prostitution.
The harm-reduction principles presented in support of legalized prostitution are, I believe, misguided. I remain unconvinced that women in prostitution will be safer if regulated. It is, in my opinion, foolish to presume that the introduction of regulations would transform prostitution into an industry of compliance.
I do not believe that the legalization would have protected women Willie Pickton picked up, who ended up dismembered and in my RCMP freezers for forensic analysis. What we do learn from the Pickton file and the analysis of their body parts indicates that Pickton was only the last in a long line of predators who had, over years, subjected these women to traumatic abuse and injury.
Let us be under no illusion as to the brutality of this industry. Canadian citizens are routinely subjected to great harm in prostitution, and their vulnerabilities are exploited to the full. Legalized prostitution would seek to address only peripheral violence — the threats, beatings, stabbings, et cetera. However, it is my belief that the central activity that is prostitution represents violence against women. Harm reduction practices will not protect women from violence if the job itself represents violence. The purchasing of women's consent and subjecting them to thousands of paid rapes does violence to their bodies and is profoundly destructive to the psyche.
Young women exiting prostitution frequently attempt suicide. I have never encountered a young woman in a transition program who has attempted suicide because of her memories of beatings or being held at gun point. Invariably, the source of distress is a profound sense of worthlessness resulting from repeated sexual assaults central to the job, along with the associated verbal abuse that undermines their self-esteem and shakes their identity to the core. This is the central violence of prostitution.
If, then, violence is central to the life of prostitution, the only clear way to reduce that violence is to reduce the size of the trade. Experimentation in other nations teaches us that legalization will not reduce the harm but, by growing the trade, will increase it.
In addition, I believe we are naive if we assume the creation of a legalized Canadian industry of sex abuse would go unnoticed by a very large source of demand south of the border. Simple economics dictates that the demand will be filled with increasingly vulnerable product found within Canadian society. Providing such a market is potentiality catastrophic.
The issue of choice: I view prostitution as a seamless continuum of abuse that runs from the prostituted child who, by virtue of age, is deemed incompetent to consent, and progresses into the abused adult who, by virtue of conditioning, addiction and trauma, is frequently rendered equally incapable of informed consent. Tragically, in this context, we see victims consenting to bodily harm and physical injury, driven by their desperation for the next drug fix. Call it what you will, this is not informed consent, free of duress.
It is my belief that the law needs to target those who clearly have choice regarding such harm. Those women, the majority of whom have experienced abuse as children, who are frequently drug addicted, manipulated and extremely vulnerable, do not have that choice. However, those with money, careers and a reputation to maintain, those who kiss their kids goodnight, say goodbye to their wives, drive downtown and choose to abuse a vulnerable woman or girl, these are the ones our laws clearly need to focus on.
As one who has spent far too much time picking through the dismembered body parts of prostituted women, analyzing the circumstances of their brutal deaths, as one who knows how many years it takes to rehabilitate an abused youth, as one who has devoted his life to the recovery of such victims, allow me to assure you that this is not an industry of choice for the vast majority of those prostituted. It is neither lucrative nor empowering for them. It is destructive and it is deadly.
One of the key indicators of a mature democracy is its ability to look past the superficial and create legislation that protects the most vulnerable, irrespective of their circumstances or standing in society. In creating this legislation, Canada has moved to protect such victimized women.
While I have reservations regarding section 213, communication, I am in support of this bill and would ask for its speedy passage.
Julia Beazley, Policy Analyst, The Evangelical Fellowship of Canada: The Evangelical Fellowship of Canada is the national association of evangelical Christians gathered together for influence, impact and identity in ministry and public witness.
Over the last two decades, the EFC has presented a number of papers and submissions to Parliament on the subjects of prostitution and human trafficking. We also acted as intervenors in the Bedford case before the Supreme Court of Canada. We're grateful for the opportunity to speak to this important bill.
In July we made a submission to the Justice Committee offering our firm, if qualified, support for Bill C-36. Because the time is short I'd ask that you refer to our written brief for our fuller comments and recommendations.
In crafting this bill the government has taken a big-picture view of prostitution and courageously challenged the long-held assumption that men are entitled to paid sexual access to women's bodies. They've also boldly refuted the notion that buying sex is inevitable in our society. In this regard, the bill represents a paradigm shift in law and policy about prostitution and eventually, we hope, in public attitude.
The preamble recognizes that prostitution is inherently exploitative and dangerous, that objectification of the human body and commodification of sexual activity causes social harm, and that prostitution violates both human dignity and gender equality. It also recognizes that issues like poverty, addiction, mental illness and racialization are key contributing factors to individuals entering prostitution. It notes the importance of denouncing and prohibiting the purchase of sex because that's what creates the demand for prostitution. This positioning effectively turns the historic treatment of prostitution on its head. Legal and political treatment of the issue has long focused almost exclusively on those who are prostituted and how we might deal with them: as a public nuisance, as a threat to public health or a source of community disruption.
Sex buyers who drive the demand that funnels individuals into prostitution and holds them there have been largely invisible. Bill C-36 correctly identifies and targets demand as the driving force behind prostitution and sex trafficking. The bill proposes a new offence prohibiting the purchase or attempted purchase of sexual services. If passed, buying sex would be illegal in Canada for the first time and a buyer's conduct illegal wherever it occurs.
The sex trade operates according to market principles of supply and demand. Without male demand for access to primarily women and children, the prostitution industry would not flourish or expand. The new offence takes aim at the root of exploitation and it is supported by significant fines and potential jail time. Surveys of men who buy sex indicate these, along with the risk of public exposure, are the things that would most effectively deter them from persisting in their sex buying.
The bill also initiates a critical shift in how those who are prostituted are viewed in law. Research and anecdotal evidence tells us that between 88 and 96 per cent of women in prostitution are not there by choice and would get out if they felt they had a viable alternative. This bill recognizes and reflects that reality.
The government has made it clear that in the spirit and intent of the law those who are prostituted are no longer seen as nuisance but as vulnerable victims of exploitation and are afforded immunity from criminal charges, except under specific circumstances. This is an important shift that we affirm wholeheartedly.
Before the Justice Committee, we expressed concern that the wording of sections 213(1) and (1.1) left a fairly big loophole that could undermine the intent of the legislation to criminalize mainly the activities of johns and pimps. We want to minimize the scope of this section for continued criminalization of prostituted individuals.
The committee did hear this concern. It was raised by almost all witness who appeared, and they amended section 213(1.1) to specify that the public locations referred to include areas near schools, playgrounds or daycare centres, and we welcome this amendment. Still, by our interpretation, the only ones who risk potential criminalization under this section are in fact the most vulnerable: individuals engaging in street level prostitution who are among the most desperate and most addicted.
Criminalization of vulnerable individuals creates barriers to their exit from prostitution and serves mainly to further entrench the inequality and marginalization that got them there.
Criminal records are a significant barrier to many potential educational and employment opportunities for those who successfully exit.
We recommend again that the punishment for offences under section 213(1) and (1.1) be set at a very low threshold, with no potential for imprisonment, and defined in the legislation to ensure that the most vulnerable do not continue to face undue punishment or hardship.
Since much of the success of the laws will depend on how they are enforced, we recommend standardized training be developed for law enforcement, provincial attorneys general and Crown attorneys about the new treatment of prostitution under Bill C-36 to support enforcement that is consistent with the intent of the legislation.
Finally, the proposed laws are to be part of what is a two-pronged approach taken by the government. We welcome the initial commitment of $20 million to support programs assisting individuals with exit and hope this will translate to increased long-term, sustained federal funding.
Bill C-36 is not perfect, but what it accomplishes, by reframing the issue as it does and directly targeting the demand for paid sex, is significant, and for these reasons we support it.
Some have argued that Bill C-36 will endanger women, but it's not the laws that are the cause of the violence and stigma experienced in prostitution; rather, it is the belief that men are entitled to paid sexual access to women's bodies on their terms at all times, and the common perception among sex buyers that those they buy are "other" — somehow a class separate from mother, wife or daughter. Unless we challenge those beliefs, as this bill does, the misogynistic attitudes and behaviours that are the cause of the violence and the stigma will persist.
Kerry Porth, Chair, Board of Directors, Pivot Legal Society: My name is Kerry Porth, and I am a former sex worker and current chair of the board of Pivot Legal Society.
Bill C-36 will create an environment where more exploitation, more violence and more desperation will occur. It didn't have to be this way. The Bedford decision represented an historic opportunity to open a balanced national discussion about sex work. This was our chance to prioritize the voices of sex workers who have extraordinary expertise about what policies and regulations would protect their human and labour rights. Instead we have a bill that improperly characterizes all sex workers as victims and then fails to provide meaningful protections to them.
I want to make an important point today that I feel gets lost in these discussions. The experiences of sex workers fall along a spectrum. At one extreme you find people who have been coerced into sex work or who face extremely challenging circumstances in their lives, leaving them few options to make ends meet.
At the other end of the spectrum, you find people who identify sex work as their calling and who derive fulfilment from their work. The vast majority of adult sex workers fall somewhere in between those two extremes.
Because sex work occurs along this spectrum, laws and programs need to respond to a diversity of needs, and I submit that three principles should guide Canada's laws and policies in this regard.
One, we must ensure that people who are in the sex industry, irrespective of the circumstances that led them there, have access to the safest possible working conditions. Ensuring safety requires that sex work be decriminalized.
Two, we must ensure that people who experience abuse, coercion or victimization in the context of sex work have access to the protections they need. This does not require the enactment of new laws. It requires that we ensure that sex workers have access to the range of criminal laws that are intended to protect them and do address all of the harms that may occur in the sex industry.
Three, we must ensure that those who do not want to be doing sex work have the support and options they need to make that change in their lives. Criminalization does not help in this regard. In fact, it limits options for sex workers.
The way to ensure that no one is doing sex work out of desperation or lack of options is to ensure an effective range of social supports and professional training options. That is how you really support choice.
Thank you.
Katrina Pacey, Litigation Director, Pivot Legal Society: I will spend my two and half minutes to respond to what I see as a number of fictions that are being relied on in order to rationalize the approach proposed in Bill C-36.
First, it is false to say that the criminal laws that prohibit the purchase of sexual services or other aspects of adult sex work will have a considerable impact on rates of prostitution in Canada. I dispute what Justice officials said this morning. I dispute what has been reported to you insofar as the results from Sweden and Norway.
Criminalization in many different forms has been tried all over the world in many different ways, and in no jurisdiction is there any solid empirical evidence to show that there is a meaningful or significant decline. In fact, even where there has been a decline, there are many other explanations, such as sex workers moving from the visible street sex trade to indoors.
Second, it is wrong to represent C-36 as a legal framework that immunizes sex workers from prosecution. Street- based sex workers will continue to be criminalized on the street, and any sex worker could be criminalized if she or he is involved in running a business, a partnership, a cooperative enterprise or anything that could be deemed a commercial enterprise or where she or he is seen as deriving some benefit from the work of her or his colleagues. This should not be supported by any Canadian who has a true commitment to sex worker safety and rights.
Third, the government says that Bill C-36 conforms with the section 7 rights of sex workers and with the Bedford decision. They say that Bill C-36 does not limit sex workers' access to safety-enhancing measures such as screening clients, working indoors and working with others. Again, this is simply false.
Just like the bawdy house law, the ban on purchasing sex and the ban on advertising will make it practically impossible to work indoors. Sex workers will be deprived of that meaningful opportunity to work safely.
Just like the communication law, the prohibition on communication by clients, as well as communication by sex workers, will continue to displace marginalized street-based sex workers to dangerous locations, will give them little time to negotiate or screen clients and will place them at odds with police. These are the exact circumstances that we have experienced in the Downtown Eastside and are the exact circumstances that Commissioner Wally Oppal found led to the tragedy of the missing and murdered women.
Like the living on the avails provision, the prohibition on procuring and the prohibition on materially contributing or benefiting will continue to isolate sex workers and deprive them of engaging in safety-enhancing relationships. C-36 will reproduce the conditions we saw under the laws struck down in Bedford. It will decrease sex workers' control over the circumstances of their work and does not conform with section 7 of the Charter.
My final point is that there's a statement being made that the Bedford decision, if allowed to stand, if the laws are struck down, will create a void, that there will be a lack of protections in place for sex workers who experience abuse or exploitation or forms of violence in the context of their sex work, and that is simply not true. The anti-trafficking laws remain on the books. The laws that prevent sexual exploitation of children and youth remain on the books. The range of provisions that protect all of us from abuse, extortion, assault, confinement, threatening and harassment all remain on the books, and those are the provisions sex workers are asking for access to. They're asking for equal and full access to the protections that exist for all of us, and sex workers should have that access as well.
Thank you.
The Chair: Thank you, all.
Senator Baker: Thank you to all the witnesses for their very excellent presentations.
Ms. Pacey and Ms. Porth, you say that the new law that is being considered before this committee you believe will be struck down, just as the Bedford matter was struck down, those three provisions, by the Supreme Court of Canada. Could you elaborate on that?
The three provisions that the government has put in place here, that is, that if it concerns one's own sexual services, that there is immunity from prosecution for advertising, for deriving a benefit from sexual services and from counselling or aiding and abetting, and there's a provision that says you would be allowed to hire receptionists or drivers or bodyguards, you say that this does not really accomplish anything for the sex worker. Could you elaborate on that for us?
Ms. Pacey: Certainly. Perhaps I will begin by saying Bill C-36 is an extensive bill and there are many aspects of it. What I'd like to focus on in my comments regarding constitutionality are those provisions that I've discussed today, so specifically focusing on the provisions that ban purchasing sex, the materially benefiting provisions and the provisions that I've spoken to today.
Senator Baker: That is very much appreciated because the bill is entitled An Act to amend the Criminal Code in response to the Supreme Court of Canada's decision in Attorney General of Canada v. Bedford. That's what the bill is supposed to be about.
Ms. Pacey: That's correct.
Senator Baker: But that's only a minority of what's in this bill.
Ms. Pacey: There are many, many aspects to this bill. There are mandatory minimums. There are many pieces.
Senator Baker: Yes, so you're going to deal with the measures that we want to hear about, so you go ahead.
Ms. Pacey: I hope so, and if I don't, please ask me.
We have to start with the starting point, which is the Bedford decision. We have to realize that what the Bedford decision says is that laws that impede sex workers from taking steps to ensure their safety, irrespective of why they're doing sex work, if they're meaningful steps they can take and the laws prevent them from doing so, then that is not justifiable pursuant to section 7 of the Charter.
We take that analysis and then we look at the provisions, and the place I believe we need to begin is the effect. We need to ask ourselves: The provisions that are found in Bill C-36 that specifically target adult sex work itself, whether it's buying sex, communicating in public, engaging in business relationships, we need to look at whether or not it's going to reproduce the same impact or effects that sex workers experienced under the laws that were at issue in Bedford.
In my submission, I think both based on the evidence and a full and comprehensive review of the evidence from Canada and from around the world, as well as just plain common sense, frankly, it is very clear that the same effects will be reproduced. Street-based sex workers will continue to work in the most dangerous parts of our cities. Indoor sex workers will continue to be deprived of their ability to set up the safest possible indoor spaces for themselves. I think it's quite logical to imagine that a sex worker who says, "I'd like to establish an indoor space," if she or he is unable to advertise and tell anybody they're carrying on their business — a police officer merely has to park out front and tell their clients they're under arrest the minute they attend there — if that person has to continue to work alone because the minute he or she engages with others it's considered a commercial enterprise, I think you can see how this is an indirect attack on the capacity of sex workers to work indoors.
If we look at those effects, then we move on to ask ourselves what will happen with a section 7 analysis. The minister this morning was very careful to say that they have constructed the preamble and the objectives of this legislation in order to deal with what they see as the balancing exercise that they lost on at the Supreme Court of Canada, which was laws that are particularly about nuisance cannot be justified if the outcome is harm and violence. So they've reconstructed the preamble and the objectives.
In my view, even with the preamble and objectives as stated in Bill C-36, even if it is stated for the record that this is about protection, when the court looks at the evidence, when the court understands the real direct impact and engages in that balancing exercise, in my view the laws will fall.
Senator Baker: The preamble, of course, is not determinative of constitutionality by itself. The provision, what's in this law, is determinative together with the preamble. So you're absolutely right. It's not just enough to say it's the preamble. You've made an important point, that in this matter we're talking about consent between adults, aren't we? We're not talking about child prostitution or anything else, not the Bedford decision. Those matters still remain in the law.
So your point is that even if these matters were not addressed by the Government of Canada, we would still have adequate laws in place in Canada governing this subject?
Ms. Pacey: Absolutely, and I bring that position to you as a lawyer who has worked in the Downtown Eastside of Vancouver for the last 12 years with an absolute commitment to sex worker safety. That is exactly why I do this work, because of my concern of the harms and the violence I've seen experienced by the women that I'm so close to in our neighbourhood. It is from that place that we have sat down with the Criminal Code, that we have sat down with constitutional experts and criminal lawyers, and we have analyzed this and said, from a place with a clear interest in protection, does the Criminal Code in Canada with these laws gone, and those laws meaning the ones at issue in Bedford, if they are gone, is this enough for you? This is from sex workers themselves, and the answer was yes. They don't want to see people forced into sex work. They certainly would never want to see someone trafficked, and they certainly want children protected. They said, "You know what, with these laws gone that are perhaps unintentionally harming us, those being living on the avails, communicating and bawdy house, there still remain a full breadth of provisions that provide us with the protection we want and that we have been denied access to because we are treated as criminals."
Senator Batters: Thank you all of you for coming here today.
Mr. McConaghy, I'd like to start with you. First of all, I very much appreciate your comment. I thought you boiled this issue down when you said that the people who should be targeted are the ones who have the true choice here, and those are the ones who buy sex, and that is part of what this bill tries to do.
I also very much appreciated your comments in your opening statement, and you made a similar comment to the House of Commons Justice Committee where you talked about women exiting prostitution frequently attempting suicide. As someone who that's a very personal issue to, I've done a lot of work over several years to try to help people have better awareness about mental health and suicide. That struck a real chord when I heard that. You talked about that profound sense of worthlessness, and that's the central violence that is prostitution. I'm wondering if you could speak a little bit more about that particular aspect.
Mr. McConaghy: I think a lot of the issues, and colleagues around this table would totally disagree with me, but we are all, I think, united in the desire to protect women. I think the difference of opinion comes in an understanding of what is the violent component. The peripheral violence, as I choose to describe it, is the beatings, the stabbings, the threats, all of that kind of stuff that is not central to the job.
However, my opinion is that the actual job description of a prostitute is in and of itself destructive. If we can produce regulations through legalizing where we have an industry that is regulated and health care is provided and bodyguards and everything is sweetness and light in terms of the structure, I firmly believe that the actual job description is destructive to the psyche. This is what we see with women who have transitioned out and girls who have transitioned out; it is this understanding of worthlessness from the repeated sexual assaults that creates the absolute despair.
That fundamentally is a career choice I don't think any of us would want our daughters to make, and I don't think it's a career we should be institutionalizing as a Canadian society, saying that young women are a product to be sold. I am very leery of the implications of this in terms of south of the forty-ninth parallel.
If we create a legalized industry here, we are naive if we think there are not going to be truckloads of guys coming north of the border. We've seen this in Germany in terms of the amount of trafficking of women coming in to service people coming from all over Europe. Thailand is a great example where you have a legalized trade. They've pretty well stripped the northern hill tribes of girls and have moved on to taking as many of the girls as they can get illegally trafficked across the borders from Cambodia, Laos and Vietnam.
It becomes a much bigger issue. Here we are as a fairly small population contemplating what could be a legalized sex trade just north of Detroit, et cetera. What is the Detroit-Windsor border crossing going to look like when this kicks in? We're playing with fire here, and if we think the primary duties of a career in prostitution are not damaging, I think we're naive.
Senator Batters: Ms. Jay, at the House of Commons Justice Committee, you said "We," meaning Asian women, ". . . experience negative consequences when our characteristics, whether they are real or imagined, are sexualized and commodified to promote sexual services. These stereotypes dehumanize and sexualize Asian women and they block our access to our Charter of Rights regardless of whether or not we are prostituted." I thought that was a very interesting point. I'm wondering if you could speak a bit about that when you hear arguments about prostitutes' Charter rights, and then you had your own response.
Ms. Jay: I think it's important to not create a subgroup of women for whom it's acceptable to contravene their human rights or commit violence on them without consequence. I think that's what happens when we address the whole issue of prostitution by separating women into sex workers or non-sex workers.
For Asian women as a group, we rarely get to escape any of the stereotypes around the sexualization of our characteristics. Whether or not I work in a massage parlour, when I walk down the street, there's a very real possibility that someone would assume I'm sexually available in the same way they would expect any woman walking down the street in Thailand, or any of those other sex tourism places, to be sexually available to them. It's an assumption that men are trained into now through sex tourism, through pornography, through the normalization of the advertising in online venues and newspapers for Asian massage parlours. Asian massage parlours have become a running joke. They're kind of background to much of the popular hipster culture we're dealing with right now. Having men accept those ideas about us without question means that those are the men we work with. Those are the men we go to school with and that are also in positions of authority over us. If their presumptions and adoptions of those stereotypes are unchallenged, they apply those stereotypes to us as well. That has an impact on whether or not we will be dealt with as equals in the workplace or in school, and it will have an impact on what kinds of duties we're expected to perform in those venues.
Senator Jaffer: I have a list of questions for you, Ms. Jay or Ms. Lee. You talked about getting landed status, but I didn't quite understand. It's something I've been working on for years for exploited women outside Canada. Can you explain? Did you mean when a person arrives here they immediately get landed status, or when they're found in the massage parlour by the police? The practice now in Vancouver is often they are driven to the airport. What do you mean? Can you expand on that?
I'll ask Ms. Pacey and Ms. Porth my questions as well. Can you expand on the report that Pivot did on the issue? I don't quite agree, with all due respect, with what Justice said about the situation in Sweden and Norway. You have some experience, so can you expand on that?
As chair of Pivot Legal Society, can you further explain what this bill will exactly do to sex workers?
Ms. Jay: The short answer to the question is we are recommending that Canada grant landed status to any woman who arrives here in Canada under exploitative circumstances. We would include mail order brides under the Temporary Foreign Workers Program and under the live-in caregivers program. Those are people coming to Canada almost always because of poverty in their own countries. They're coming here for better opportunities, but somebody here is sponsoring them in order to take advantage of their disadvantage in their country of origin.
We're saying that there are recent examples of how the balance of power remains in the hands of the employer. In the Temporary Foreign Workers Program, there are several cases recently showing how those people are very subject to exploitation. If they have regularized status, there's a greater possibility that they can escape those circumstances.
Also, I'd like to say that the procurers, pimps and organized crime that operate the Asian massage parlours and micro brothels rely on women having irregular immigration status. If women don't have irregular immigration status when they arrive, they encourage it. They confiscate papers, and they encourage women to overstay visas. They also threaten women with reporting them to immigration because women don't always have enough information about what their rights are when they're here in Canada.
Ms. Porth: Pivot recently released a report entitled My Work Should Not Cost Me My Life, and it was a collaboration with the BC Centre for Excellence in HIV/AIDS. It was looking at a shift in enforcement by the Vancouver Police Department towards not pursuing sex workers on the street and towards actively pursuing their clients. While it has only been an official policy of the Vancouver Police Department since January of 2013, it has been in effect for the last five years.
Sex workers in the report were reporting to us that they had to work much longer hours. A sex worker who has stood on the street for six hours and hasn't made any money that day can't say, "Oh, well, I'll just go home for the day." She relies on that income to meet her survival needs, so she has to stay out far longer.
For street-based sex workers who are working in active addiction, the longer they are out, the more likely they are entering into withdrawal. That makes them much more vulnerable to accepting a riskier client out of desperation.
The other thing that's happening is a shift in the behaviour of clients. They're much more nervous because they know they're being "enforced" for communication in a public place, so they want to meet sex workers in darkly lit industrial isolated areas. They're asking sex workers either to get into the car before they negotiate the terms of the transaction or to follow them into a dark alley and do the transaction there. That leaves the sex worker with little to no time to assess a client for signs of intoxication, to check his car, to see if there's a door handle on the passenger side, to see if there are weapons in the car and just to get a sense of the client, but also to negotiate the terms of the transaction, including what she is or is not willing to do, where she's comfortable to be taken and how much she's willing to be paid. These sorts of rush transactions can lead to misunderstandings. Those misunderstandings can lead to violence. So the focus on enforcement against clients really puts sex workers at risk.
The Vancouver Police Department supports the criminalization of the purchase of sexual services. They believe they need it as an extra tool to help them find predators. They like to talk about a single case that occurred in 1988 or 1989 where they did a check of the vehicle in the Downtown Eastside and discovered there were weapons in the cars and restraint devices, and they hold that up as "We stopped a predator." But what I'd like to remind the Vancouver Police Department is that according to their own report to the Missing Women Commission of Inquiry, they stopped Canada's worst serial killer on dozens and dozens of occasions in the Downtown Eastside, and it didn't stop him from killing a single sex worker. So casting a giant net over every client in the hopes that you'll catch a single predator isn't going to work, and while we continue with that experiment, sex workers' lives are going to be at risk.
Senator Plett: I have one or two comments before I ask a question.
The overall intent of this legislation is to abolish prostitution, not to make it a safe occupation. Both of you have talked a number of times about how this is making it more dangerous for prostitutes. Of course, we don't want to make life safe for prostitutes; we want to do away with prostitution. That's the intent of the bill.
We had just before you a witness, Timea Nagy, founder of Walk With Me Canada and a front-line victim care worker. I asked her a question about choices and she agreed that she had choices. She had a choice to go and turn tricks; she had a choice to get beaten up; or she had a choice not to eat. These were the choices given to her. She started as a young prostitute, left, and went back into the business because of not being able to eat.
You have not said this directly but you have at least intimated, in my opinion, that this is in some degree a reasonable occupation. Ms. Porth, maybe you can be more direct in this; you have said you were a past sex worker. How young were you when you went into the trade? I don't think many people wake up on their eighteenth birthday and say, "I think I'm going to become a prostitute." I think they have somehow gotten into that occupation at a young age, been coerced, manipulated and forced into it.
Do you have evidence that would show that that is not true, that the majority of sex workers are adults when they go into it and they really enjoy their type of work and that this is not a very violent sort of an occupation?
Ms. Porth: To be clear, I started doing sex work when I was 34 years old. I started doing sex work in the context of extreme addiction and profound poverty. It was, nevertheless, a choice. I have a university education; I could have found other work. I could have gone to detox and treatment, and that's not what I chose to do.
I didn't particularly like doing sex work, but not for the reasons most people think. I just didn't like playing dumb and that's actually part of the job. I never experienced any violence on the job. I was able, for the most part, to work in my own home. I had somebody else there if I needed any help. In the four years I did sex work and in thousands of sex work transactions, I only needed help once and that was simply because the client had overstayed his welcome. It didn't need any violence to encourage the client to leave.
I'm not suggesting that my story is in any way typical or atypical.
The myth of the average age of entry is based on a number of studies. There's a recent newspaper article coming out of the United States. There have been a number of articles and research that debunk that myth. It's based on a couple of different studies, but in both cases the studies were of underage sex workers, so the chances are pretty good that the average age was going to be under 18.
John Lowman, when he testified before the Justice Committee, had done a review of several Canadian studies, which indicated the average age of entry in Canada is between 18 and 23 years of age.
As I said in my opening statement, sex workers' experiences go along a spectrum. For six years I was the Executive Director of the PACE Society, which is a Downtown Eastside non-profit that works with street-based sex workers. I worked with well over 250 of them. Some of them really hated the work and really wanted out, so we would support them to do that. Some of them were content with where they were at that time and some of them were quite comfortable with their work and do feel that they chose it.
I think what's really important is we need to start where people are at. We need to listen to what currently working sex workers have to say about their experience and start from there. You need to believe what they tell you about their experience. Because some of us find the idea of sex work to be disgusting and distasteful doesn't mean that sex workers find it that way.
Ms. Pacey: If I could add to my colleague's comments, I think it's very important to remember that pursuant to the Bedford decision and Canada's Charter of Rights and Freedoms, we have an obligation, this government has an obligation to ensure that its laws do not increase danger for people in the sex industry.
The overarching objective you mentioned about abolishing prostitution in Canada may be a legitimate objective from the government's perspective, but I'm here to tell you that it is not legitimate if those laws put actively working sex workers in harm's way. That is not consistent with the Charter of Rights that they have and it's not consistent with the constitutional principles that protect all of us.
The other thing I want to make absolutely clear is that it will not work. Very extreme forms of criminalization have been tried, as I mentioned, all over the world and it has not worked in a single country. There's nowhere we can look to say that they have stamped out prostitution or even considerably decreased prostitution. There are many jurisdictions — and I'm speaking about New Zealand in particular — where we can look at decriminalization and that model as one that worked very effectively because it increased the health and safety for those involved in sex work but also did not increase the number of people involved in sex work. That is because people do sex work for a range of reasons, and those are the reasons we need to be talking about today and taking an evidence-based approach.
Senator Plett: We are.
Ms. Pacey: We are.
I would like to remind us, if we're talking about people doing sex work as a result of lack of choice or options, we really need to look at why that lack of choice or options exists. For the women that we work with in the Downtown Eastside, that is about a true, significant and meaningful investment in the services dealing with the socio-economic conditions that led them to sex work.
Senator Joyal: I would like to come back to the impact of what Ms. Beazley mentioned in relation to criminalizing prostitution close to schools. I was surprised, as a matter of fact, to read your comment in relation to that, especially when you mention that those who would be involved in those areas will probably be the most vulnerable people. We heard the Aboriginal people testifying previously. I don't know if you were in the room at the time.
Can you expand more on which basis of knowledge you used to come to that conclusion? You are requesting us to amend section 213(1), if I understand what you have proposed to us.
Ms. Beazley: Sure. If I'm reading the legislation correctly, 213(1) is still there as it was before. The one section was struck but impeding vehicular pedestrian traffic, approaching a vehicle, those remain. They are not qualified by the new section (1.1), which was amended to specify areas near daycares, playgrounds or schoolyards. The only individuals that are going to be affected by any of those are street-level prostitutes. So there's a whole wide swath of prostitution that exists outside of street-level prostitution. Primarily, the ones we find on the streets, as I said, are individuals who are most marginalized. That's where you find most of our Aboriginal women who are being prostituted. I'm saying that, in effect, by my understanding, the only ones risking criminal charges under this reframing are those who are most vulnerable.
Senator Joyal: Do you have any comments to add to that, Ms. Pacey or Ms. Porth?
Ms. Pacey: I have many comments I'd like to add but I'll try to be brief.
There are two problems with the reformulation of 213. One is that under no circumstance should street-based sex workers be arrested. I think that that seems to be an agreement from many of the panelists you've heard from today, especially this afternoon.
My second point is to ask you to contemplate whether the criminal law is the necessary or useful tool to have a conversation with the sex work community about where sex work is happening, in our various jurisdictions, whether it be cities or rural communities. Sex work is happening on the streets for various reasons. In the City of Vancouver, the Vancouver Police Department recognized that the effect of police pushing sex workers around was meaningless. It meant that sex workers were not coming to the police when they needed help. It was placing them in an adversarial relationship. The Vancouver police put out a policy that said we are going to use criminal law as the absolute last resort. We recognize the harms and implications of that.
What I'd like us to do is wonder and question why that belongs in the Criminal Code and why instead we might not be having conversations at the local level with our sex work community and sex work outreach organizations to say to them, sex workers working around a playground — although I have to admit it doesn't happen very often in our city because sex workers don't want to be near playgrounds for the most part — just having conversations at the local level and saying let's talk about where it's happening and where it's both safe for sex workers as well as good for our communities.
Senator Joyal: I raised the issue of health of prostitutes with the previous witness. Do any of you have comments you wish to add on that? Will this bill improve the safety and security of the prostitute? In my opinion, the health risk happens to exist in the security of the prostitute. That is very important in today's context and what could be a deadly disease. Have you read this bill in the context of the impact it will have on the health condition of prostitutes?
Ms. Porth: The World Health Organization has condemned the criminalization of sex work as pushing sex workers further away from health supports and increasing their risk of vulnerability to HIV and other STIs. Criminalization in some countries has led to human rights abuses, such as mandatory testing, which the UN also recognizes as a human right abuse. The Lancet published a series of articles about the relationship between criminalization and an increased risk of HIV transmission to coincide with this year's AIDS conference in Melbourne.
Sex workers already have poor health access. They face a lot of stigma. If I was a sex worker, if I went to see my doctor for an upper respiratory infection, my doctor was constantly wanting to send me to get tested for STIs, despite the fact that, in Canada, sex workers actually practice safer sex at much higher rates than the general population, so you don't want to go to the doctor.
There was also a red border on my file folder, which indicated that I was in a high-risk group. So sex workers face a lot of stigma. Continuing to criminalize their occupation basically views them as criminals or as helpless victims and reinforces stigma and means that they will not get the same health care as every other Canadian citizen.
Senator McInnis: I had a question for Mr. McConaghy and Ms. Beazley, but I first wanted to ask a question of Ms. Porth and Ms. Pacey. I didn't hear it, but you will tell me if I am wrong. Do you believe that prostitutes are victims and are being exploited?
Ms. Porth: I think to be a victim, there needs to be somebody exploiting you. I never viewed my clients as exploiters. I set my rates. I chose what sex acts I would be engaged in. If clients were not going to obey that, then it ended. I was fortunate in that none of them because violent, but the reason they didn't become violent is that they were in my own home and they knew that there was somebody else there. Sex workers on the street are far more vulnerable to that kind of exploitation and violence.
What I was vulnerable to in terms of clients was them threatening to report me to the Ministry of Children and Family Development because I had a child, or threatening to out me to my landlord who could evict me if they came to find out that I was doing sex work in my own home. Again, it's criminalization that makes the sex worker more vulnerable.
Ms. Pacey: My starting point has been listening to sex workers, which is what I have done for the last 11 years. I have met with sex workers who describe their experience as one of victimization. It is something they never chose to do and something they never wanted to do again, and they were seeking assistance in terms of changing their lives and changing the line of work they were in. I have met sex workers who said, "This is a choice I am making, and it's not for you or any other Canadian to judge me for it. I'm an adult making consenting decisions about who I have a sexual relationship with."
With both of those communities, irrespective of the experience that led people into sex work, the conversation that followed was always, "How did criminalization assist you, or did it?" That was how Pivot entered into the discussion. There was no position on what to do; it was, "Let's talk to sex workers about the impact that criminalization has had on their lives, whether that be positive or negative." That is the conversation we continue to have.
Whether I'm sitting with a sex worker who really, truly feels victimized in the context of sex work, and I absolutely believe her that that was her experience, or someone who describes their experience as one of choice, and I absolutely believe her too, criminalization has failed both of those groups, and it is time, in my view, for us to recognize that and move on.
Senator McInnis: Would you agree that most prostitutes do not want to be in that business?
Ms. Pacey: I actually do not agree with that. That is not my experience. I work in the Downtown Eastside with street-based sex workers who face incredible challenges and barriers in their lives, and most of the women I work with in the Downtown Eastside tell me that they are looking to change their lives or telling me that they are looking to transition out of sex work. I also know that they are a small population and a small percentage of the industry. When I step out of that community and start talking to indoor workers and independent workers and students at the university who are doing sex work to pay their way through or moms in my community who are making a living on the side through this kind of work, they tell me that it's a choice and that it's the best choice for them where they are at, and they wish for the government to both respect them for that choice as well as encourage their safety.
Senator McInnis: It's not my style to argue with witnesses, but I respectfully disagree, particularly on the evidence we've heard so far and the multiplicity of papers we have read leading into this. You are entitled to your opinion, though.
As a final question, I have read that, in Sweden, over a five-year period, prostitution was reduced by 40 per cent. You said that that is not so. What is your evidence?
Ms. Pacey: My evidence is based on reading the three major evaluations that came out of Sweden, and the most recent evaluation in 2010. There are methodological issues, in my view, with how that research was conducted. It claims that for prostitution overall, there was a decrease. If you push deeper and look more deeply at that research, what you see is that the visible aspect of sex work was declining already because of the emergence of the Internet. They were already seeing a decline in terms of the number of street-based sex workers. They didn't know what to attribute that to, but they think it was probably the emergence of the Internet.
Then the law comes into force, and they continued to see a decline, and they also acknowledged that there was very rigorous enforcement at that time. There was a new law, police were excited about it, and they were out on the streets cruising around and deterring clients. That was certainly recorded. Then we saw, to my understanding, a decrease in interest because chasing clients around the streets, which strikes me as what the police have represented their policy as, became less interesting. You saw street-based sex work increase again. Meanwhile, you saw an emergence of sex work indoors. You saw more Swedish sex workers advertising on line.
You have to ask yourselves, are those numbers accurate? Is there a trend, which is in fact that the visible trade moved indoors? When you start to look more deeply, the challenge we have is that the numbers actually are not reliable.
[Translation]
Senator Rivest: Like many others, I share the scepticism expressed over the effectiveness of new criminal law measures in dealing with a social issue of such importance and complexity as prostitution.
I do not believe that making amendments to the Criminal Code would have a significant impact on reducing prostitution or ensuring sex workers' safety.
Have there been any cases in Canada — be it on a federal, provincial of municipal level — where police forces, community organizations involved in this field and health care organizations were brought together and had success in significantly reducing prostitution or, at the very least, in ensuring that prostitution took place in "appropriate conditions," if I may use that expression?
Is there a place in Canada where experience has shown that, instead of making amendments to the Criminal Code, it may be more effective to focus on a social problem on the ground and to view this as a societal issue rather than a criminal law issue?
[English]
Ms. Porth: I'd like to talk about two things. One is a group I have been involved with for some time, and it has been around for about 11 years in Vancouver, called Living in Community. It brought together neighbourhood associations, the police, Vancouver Coastal Health, sex work support organizations, sex workers, all kinds of people, to discuss the issues of sex work and the impact of sex work on communities. It started with a series of community round tables where people could come together to talk about the issue of sex work.
A few years ago we conducted a demonstration project in a neighbourhood called Renfrew-Collingwood in Vancouver which had a very active stroll called "the Kingsway Stroll." In those two years we did a lot of public education for people in the neighbourhood, weekly outreach to the sex workers and a number of different other events. We worked closely with the community policing office, and prostitution-related calls to the community policing office dropped from 98 in the first year to 2 in the last year.
I find that most people don't think about sex work; they simply react to it and their reactions are often based on misunderstandings and misconceptions. If you can talk to community members about things — for example, if there is a sex worker that is too close to your home and you could go and talk to her, and often residents are terrified of sex workers for no apparent reason — it can make a huge difference.
In the Downtown Eastside there are two social housing providers, The Vivian and Serena's House, that permit sex workers who live there to bring clients into their home, into a safe indoor space rather than doing sex work on the street. Both housing models were evaluated by the BC Centre for Excellence in HIV/AIDS and had very positive outcomes.
[Translation]
Senator Dagenais: My question is for Ms. Pacey. Like many bills, Bill C-36 is not perfect. All pieces of legislation have their shortcomings, but I think this is still a good bill whose ultimate goal is to reduce prostitution.
Would you not agree that this is still the best way to reduce the number of victims, who are inevitably women and children? I would like to hear your thoughts on that.
[English]
Ms. Pacey: With respect, I do not think it's the best way to ensure that people who do not want to be doing sex work are given other options. There are a range of protections and supports that sex workers need that are not provided for in Bill C-36 and in fact it detracts from their ability to access those things.
My colleague Ms. Porth made an important point that I'd like to make again, which is that if sex workers are asking for and are needing supports to transition out of sex work, that will be through the provision of supports, options and professional opportunities to them. The imposition of a criminal law framework over them that makes it more dangerous for them while they are there creates the possibility of a criminal record for them. Although I understand it's lessened as a result of Bill C-36, that possibility still remains and does not make for a meaningful investment in terms of professional opportunities, educational opportunities, access to better housing and to treatment and detox so that, for someone in Kerry Porth's situation, it may have facilitated her situation and her safety.
It is that meaningful investment in the socio-economic factors that lead some people to do sex work that we need to be focusing on as opposed to focusing on a criminal law that, in my view, will make it less safe for them and is a dangerous distraction from more effective and useful tools.
The second piece is the importance of ensuring that sex workers in the social community have full access to police protection. Continuing to criminalize the industry will continue to place sex workers in a distrustful relationship with police and make it more difficult for them to access police. The Vancouver experience is one that speaks absolutely clearly to the importance of ensuring that sex workers face no barriers when it comes to accessing police services and protections.
[Translation]
Senator Dagenais: If you had an opportunity to listen to the minister's comments this morning, you heard that $20 million would be invested. That is the result of the bill; that is a start. You will say that the investment could have been larger, but the fact remains that $20 million will be invested to help people find their way out of prostitution.
I assume you agree. Do you?
[English]
Ms. Pacey: I would suggest to the minister that they scrap Bill C-36 and invest $20 million as a starting point to try to make a meaningful investment in sex workers' lives.
Senator McIntyre: Thank you all for your presentations. Bill C-36 contains 49 clauses. In July of this year, the House of Commons Justice Committee heard from witnesses in the same fashion we are today and proposed some amendments to the bill, one of which is an amendment to clause 45. The proposal in the amended clause, 45.1, is to review Bill C-36 amendments to the Code after five years. In other words, the legislation is to be reviewed with within a five-year period. Can I have your thoughts regarding this amendment?
Ms. Porth: If the government was convinced that this bill was the way to go, and if believes that it will protect the rights and the safety of sex workers, then the review should occur earlier than that because if the bill is increasing harm to sex workers, we don't want to wait for five years to find that out. I would think that one or two years would be more appropriate.
Ms. Beazley: We had recommended to the Justice Committee that a two-year review be written in. Five was better than nothing, but we had asked for a two-year review as well.
Mr. McConaghy: I think it's prudent to have such checks. I also think that this is a cultural change. It is a massive shift to be criminalizing the purchasers of sex. It's going to take a long while. With the large, slow-moving legal animal we know we have in Canada — I think it would be nice if we could get all the answers in two years, but it's impractical. I think it's going to take a while to work through the system to know whether or not it is functioning and performing the way we want. While we would all want answers next year, I don't think it's practical. It will take working through the courts, police services and social services to see what the impact is and if it is having the desired effect. I think five years is reasonable.
Ms. Jay: We would agree that a review of the bill would be useful. One of the things that other countries that have instituted Nordic-style models of law have found is that over the five years there is an actual impact on the population of men and their attitude toward prostitution. There is a tremendous impact on young men and their attitudes toward prostitution. I would like to see a review and for that review to examine social attitudes toward prostitution at that point.
One of the things I am noticing is that in our discussion we are still focusing on women and on women as victims. One of the things we like about Bill C-36 is that there is a refocus on the demand side of prostitution. I'd like to see more focus on the impacts that we expect Bill C-36 to have on men's attitudes and behaviour.
For example, when we talk about the health of women in prostitution, particularly in Asian massage parlours or other restricted circumstances, we need to be clear that it is men who are the vectors of disease transmission. They are the ones who should be tested and should face those health checks if there is going to be any kind of health check at all. They are the ones bringing the disease into the brothels and the massage parlours, and they are the ones demanding the unprotected sex.
Senator Baker: Ms. Pacey, you might be wondering why a lot of the questions are directed toward you. You represented the Downtown Eastside Sex Workers United Against Violence Society in the Supreme Court of Canada decision in 2012. It took you five years to be granted public interest standing to argue against the present laws that we have in Canada. You won your case before the Supreme Court of Canada and you now have standing to argue — though not exactly the same parameters of the case we are dealing with in Bedford because your case was a little bit different. Your grounds were different.
So if I were a betting person, which I'm not, I would bet that the first person who's going to challenge this constitutionally is somebody who has been granted public interest standing by the Supreme Court of Canada, which you have been, in challenging this new law.
My question to you is this: You challenged the law under the civil rules of procedure of British Columbia. This Bedford decision was challenged under the civil rules of procedure of Ontario. In both cases, you run the risk that if you don't win your originating applications, you might end up with a gigantic bill from the Department of Justice for costs.
Let me ask you, on behalf of members of the committee, why would you not bring these constitutional matters before a criminal court and get somebody who has been charged with an offence? Then you are not bound by costs under the criminal rules of procedure. Why do you persist in going through the civil rules of procedure of the B.C. court?
Ms. Pacey: That's an excellent question, and it leads to an important point that I'm glad you're opening the door for me to make, which is that my clients, Sex Workers United Against Violence and Sheryl Kiselbach, were very intentional in how they brought the proceedings forward in British Columbia, and Bedford, Leibovitch and Scott were very intentional in how they brought their proceedings forward, because they wanted to be able to challenge the laws as a scheme. They operate as a scheme. The individual prostitution laws are harmful in and of themselves, and they're especially harmful if you look at the framework of laws and the way that those construct and constrain sex workers' ability to be safe.
In a criminal context, you are usually charged with one, maybe two, of the provisions at a time, and you are limited in your capacity to bring a challenge forward, except with the provisions that you are charged with. Similarly, it is very easy for the Crown to decide at any point, including the day before trial, to stay the proceedings. We have seen that happen in many contexts, where charged individuals file constitutional notices, go a very long way to trial, and then the Crown says, "We decided we've changed our mind and we're going to drop them against you." So it was an intentional and strategic decision to go forward, most importantly because, similar with Bill C-36, you must look at this as a framework and you must look at the way in which the provisions work together to limit sex workers' safety and options.
Senator Batters: I wanted to address my question to Ms. Jay and Ms. Lee. I thought you made an excellent point in your opening statement, and you made it in your brief as well, when you said:
In the absence of Bill C-36, Canadian human trafficking laws apply only to traffickers but not the buyers of trafficked women. Bill C-36 makes it illegal for a man to buy a trafficked woman.
I'm wondering if you can tell us about any research you have seen to indicate the effect of legalization or decriminalization of prostitution on human trafficking.
Alice Lee, Member, Asian Women Coalition Ending Prostitution: I've been a front-line worker for at least 17 years, and I was a chosen representative, one of four representatives of Canada to the international leadership program, which is an exchange program focusing on human trafficking with the United States department. In my work, I can tell you that in countries where there was legalized prostitution, human trafficking increased, as Minister Peter MacKay indicated. I personally have visited Cambodia, Thailand and those places that had rampant legalized prostitution such that women are trafficked into those countries for those purposes. You can't supply enough women when prostitution is legalized, and men are using more and more prostitution.
Just like in battery and sexual assault, Bill C-36 is an important bill because it provides social sanctioning against the exploitation of women and it sends a clear message to men — and the men who are parasitically invested in women's exploitation — that it is not okay as a society to be supporting their behaviours. For that purpose, we are in support of Bill C-36.
Ms. Jay: Amsterdam is considered a failed experiment. Prostitution in the Netherlands is being rolled back by the government because they've realized that by legalizing prostitution, they invited entrenched organized crime in that activity. There was an explosion in the unregulated areas of prostitution, including underage prostitution. There was an explosion in the trafficking of women into those countries to service the growing demand — the demand that they deliberately grew for prostitution.
What those countries have had to do, and what they are doing very publicly, is they're closing down the red light districts in their cities. They are now debating ways to roll back that decision in order to defend themselves against the growth of human trafficking and the entrenchment of organized crime syndicates.
Senator Joyal: Ms. Pacey, I would like to come back to the issue of the constitutionality of some sections of the bill, of course the one that deals with the objectives of the Bedford decision, which is essentially to increase the security of prostitutes.
We heard this morning the government arguing that the bill creates a different context because the preamble of the bill recognizes that woman are victims of prostitution, that prostitution is essentially a phenomenon of victimization. If you read the preamble, it speaks of exploitation, commodification and a disproportionate impact on women and children.
Would you not be challenged on the basis that it might be a breach to section 7, which is the security of the person, but it is saved by section 1 of the Charter, which is that limits are reasonable in a free and democratic society, the objective being to fight for non-exploitation and non-commodification of women and so forth? How will you rebut that argument from the government in court, if you find yourself in that position, challenging the section of this bill that deals with the Charter of Rights and Freedoms?
Ms. Pacey: It's a big question. My simple answer is this: I believe the evidence is going to speak for itself. I believe that the impact on the ground, especially as it relates to the clients we work with, the community of sex workers that Pivot is part of, working in the Downtown Eastside of Vancouver — and of course that's our focus and that's who we will likely represent on a going-forward basis — the reality for them, as it was with the Bedford case and in the SWAUV decision, was so egregious, the conditions created by the laws were so appalling and so unjustifiable, that in the context of Bedford and SWAUV, where we were dealing with different legislative objectives, in my view, the outcome was clear.
In this case, we're dealing with different objectives and that balancing exercise, and we're talking about principles of fundamental justice. We will be having a different conversation at the court. But my simple answer for you today is that the harms will be so tragic because the conditions will remain as they are under the existing laws. What is awful to imagine is that sex workers will be placed in the circumstance of again having to withstand those conditions and circumstances and again having to go back to court demanding their rights.
Senator Jaffer: I had earlier asked you about the report that you had prepared, and we ran out of time. Can you talk about why you prepared that report, and what were the findings of the report that you prepared with the HIV/AIDS organization?
Ms. Pacey: We are in an ongoing dialogue with the Vancouver Police Department and with the Province of British Columbia and the City of Vancouver at all times about safety in our community. That conversation was prompted by the tragedy that we have seen in Vancouver and the experience of the past 15 years with Canada's largest serial killer. That conversation is ongoing, and I'm happy to say that partners are coming to the table, including police, municipalities and members of the province. They are coming forward with a vested interest, really wanting to know the best way forward.
That report was created and that research took place to genuinely ask the question: If the police shift their enforcement practices, if they lift the pressures of enforcement away from sex workers, if they redirect that towards their clients, what does that mean for sex workers on the street? Sex workers were very interested in having their voices heard.
The British Columbia Centre for Excellence, because they're research experts, carried out the qualitative work of going out, talking to sex workers, and asking them about the circumstances of their work and how it is for them ever since this policy shift took place. They then conducted the data analysis, because that's what they do so well. We then conducted the legal analysis to follow. The results show very clearly that the conditions remain the same, with enforcement having shifted, as they were under the communicating law.
A story that I will share with you briefly is that sex workers explained that they may be standing in more well-lit locations now because they feel like the police won't arrest them, but their clients drive up, they barely slow down and they start to point to the dark alley around the corner. That is where the client is willing to stop. She then follows the client into that alley. That is where he suggests she gets into the car as quickly as possible, before they're detected by police. She's in the car then, and that's where the negotiation takes place, where she has major loss of control over the conditions.
Those are the exact conditions we are trying to confront, while being invested in supporting the sex workers in that community to have all the options and choices. We're fighting for housing, welfare and health services. We're fighting for all of those things. We want the women we work with to be alive to enjoy those benefits if they arrive one day.
The Chair: Thank you, witnesses. We have reached the conclusion of the time allotted. We thank you all for being here today and contributing to the committee's deliberations on this important piece of legislation.
On our next panel, as individuals, Ed Smith and Linda Smith; from Mothers Against Trafficking Humans, Glendene Grant, who is the founder of the organization; from Canadian HIV/AIDS Legal Network, Stéphanie Claivaz-Loranger, who is Senior Policy Analyst, and Kara Gillies, a member of the organization.
Ms. Smith, I understand you will begin with an opening statement. I think you all understand the time limitations we are operating under. Thank you. Please proceed.
Linda Smith, as an individual: Thank you, Mr. Chair, and thank you also for the opportunity to speak to this committee today. We feel honoured to be here. I will share with you a bit of our story and Ed will do a follow-up.
At the age of 17 our daughter, Cheri Lynn Smith, was procured into prostitution by a young man who was just 18 years old. Somehow he convinced her that she was in love with him and, against all our pleading and tears, Cheri left home to be with him.
For the next 10 months, her boyfriend, who was really her pimp, trafficked her to many cities in Western Canada until she was brutally murdered in Victoria, B.C. Cheri was 18 years old and six months pregnant when she was beaten to death, and her body lay undiscovered in some bushes for three months. This happened in 1990, and no one has ever been charged with her murder.
We had a lot of interaction with Cheri during the time she was working as a prostitute. We, of course, were always trying to persuade her to come home. She was seen by social workers, counsellors, physicians and youth workers. None of them could convince her to leave her pimp, and no one had the resources to help her leave. The police considered her to be a nuisance. She was apprehended by them on three separate occasions in three different cities, and all they did was send her home.
There were hundreds of men who sexually used and abused our daughter. She was raped and beaten, robbed and thrown out of a moving vehicle. We never heard of any of those men being charged. Even though Cheri was controlled and mistreated by her pimp, she would not testify against him. Therefore, he was never charged.
However, we are encouraged as we see society's attitudes changing. Bill C-36 will be a leap forward in bringing care and compassion to the vulnerable and victimized in our country. Law enforcement and communities will begin to recognize the abuse these women and children endure. The prostitute will be treated as a victim, not as a criminal, and the buyers of sex will be seen as the abusers they are. The pimps who buy, sell and trade these females will be prosecuted as traffickers.
Thank you.
Ed Smith, as an individual: Since Cheri's death, we have tried to do all we can to put a stop to the sexual exploitation of women and children. We have tried to educate young people about the dangers of traffickers who are looking for the vulnerable.
We have tried to educate men to the harm they do to those who are being sexually exploited and the harm they do to themselves and their families when they pay money for sex.
Linda has told Cheri's story over 1,000 times in schools to Grade 6, 7 and 8 students to teach them about sexual predators. She has also informed parents, churches and community groups of the signs and symptoms of vulnerable and sexually abused children.
I have spoken over 130 times at john schools in Regina and Saskatoon to men who have been arrested for soliciting a prostitute. They hear stories from former prostitutes whose lives have been so severely damaged that they feel they will never be able to recover. They hear from former johns about how their addiction to sex and the use of prostitutes has destroyed their family and the relationships of those close to them. Prostitution destroys the lives of both the buyer and the seller of sex.
I would like to see Bill C-36 strengthened in the area of education — education to help young people understand the destruction that awaits them in a life of prostitution. There needs to be more information for men to help them see the harm they are doing when they pay money for sex, harm to themselves and to the prostitute. As men, we need to be the protector of women and children, not the abuser.
I think Bill C-36 is a positive step forward, as it will help to protect vulnerable women and children. Bill C-36 will send a clear message to the buyers of sex and traffickers that we will no longer tolerate the abuse of some of the most vulnerable people in our society.
Thank you for giving us the opportunity today to speak in support of Bill C-36.
The Chair: Thank you.
Glendene Grant, Founder, Mothers Against Trafficking Humans (M.A.T.H): Thank you for allowing me to appear before you, Mr. Chair and senators. It's a privilege to be here and speak. My story is similar to the Smith story. My daughter Jessie Foster was taken to the United States in 2006 and forced into prostitution. We had no idea this was happening until she went missing 10 months later.
When she went missing, we hired a private investigator who found out the disturbing facts. He found out that Jessie had been beaten, hospitalized with a broken jaw, forced into prostitution and arrested, not just once, a month after she was taken there, but four more times in September. She was planning on coming back to B.C. for a stepsister's wedding reception, and she disappeared from one night to the next. We have never had any answers, information or anything on Jessie's disappearance, and as of March she has been missing for nine years.
I believe in Bill C-36 because it will help young women like my daughter against the person who was an Albertan, a trafficker who took her to the States and left her there with a known pimp, a violent pimp known to the Las Vegas vice and pandering squad. As far as I'm concerned, a law such as this will help women by keeping men like that away from them.
It's hard for me to keep telling Jessie's story over and over because it's the same. There's no change, no answers, nothing new. The thing that has come out of Jessie's disappearance is a lot of awareness. She is probably Canada's most well-known victim of human trafficking. We've been fortunate to have her story told on many documentaries and in several books. As far as I'm concerned, Jessie's story has made a difference to other women and other parents.
I have had many parents and young women alike call me and tell me, after hearing Jessie's story, about the changes that were made in their lives and their daughters' lives. They made different choices and are here today to tell you stories. Not here personally, but today they could tell you stories of how they survived and did not end up as victims. I started this initiative many years ago, before we in Canada started striving to target financiers of human trafficking, so far ago that people used to think, "I was just a mom looking for an answer," because of course human trafficking did not happen in Canada.
Since then, I've been grateful and fortunate enough to tell Jessie's story to people like you, and hopefully I have made a difference.
Jessie is one of four daughters. She has nieces and a nephew that she has never had a chance to meet, but they are all fully aware of Auntie Jessie. I have a little picture of an angel that I found in my pocket when I got on the airplane yesterday morning that my granddaughter had drawn and hid it in my pocket so I would find it when I was away. She has drawn a missing poster for her auntie of a beautiful blonde girl in a sparkly dress, and she says, "Have you seen me?"
As far as I'm concerned, Bill C-36 may not help anybody this year, it may not ever help Jessie, but it will help my granddaughter 10 years from now when she's 16, and it will help Canadians in the future.
We don't expect answers to appear come January. We don't expect changes to be made instantly. We do expect that changes will be made. I don't feel $20 million is something to laugh at. I think that's a substantial amount, added with the other money that is available from the john schools and other places that these funds come from. $20 million is more than we had before this. That's a lot of money, and as far as I'm concerned, it will be going to good use.
Helping women to leave the street when they want to is so important. Many women don't realize at the time they are forced into this life that they are being forced. Some of them think it's partly their choice. In Jessie's case, she thought this man was her boyfriend and fiancé. She loved him and yet he beat her, broke her jaw and forced her to work as a prostitute on the Las Vegas strip.
It's hard to wrap your brain around how somebody can be a high school graduate, she had been on the honour roll, involved with the same friends since kindergarten, into sports and dance, never gave me a lick of trouble her whole life. I never got calls from the teachers, other parents, or the police as Jessie was growing up. She was a beautiful young woman who had high expectations for her life. She had never done drugs, and yet she still became a victim of human trafficking. She was still taken out of our country under all of our noses and nobody realized what was happening until it was too late.
I want everyone to understand my take on Bill C-36 is that it must pass and become a law. When that law passes, I and many others will be calling it "The Jessie Law."
Stéphanie Claivaz-Loranger, Senior Policy Analyst, Canadian HIV/AIDS Legal Network: My name is Stéphanie Claivaz-Loranger. I'm a lawyer at the Canadian HIV/AIDS Legal Network, a human rights organization that works to promote the rights of people living with and affected by HIV in Canada and internationally.
The legal network intervened before the Supreme Court of Canada in Bedford and has worked on issues relating to human rights and sex work for over a decade.
I'm accompanied by Kara Gillies, a member of the Legal Network with 25 years of experience in sex work and two decades of experience in support and advocacy on sex trade issues.
We thank the committee for this opportunity to present. Our written brief provides a detailed explanation of the different provisions of Bill C-36, including the amendment regarding communication. It explains how these provisions will have harmful impacts similar to those of the provisions struck down by the Supreme Court.
Our brief also explains how globally available scientific data demonstrates that decriminalization is necessary to uphold sex workers' rights to health and to empower sex workers to protect their health, including protecting themselves against HIV. We would be happy to answer any questions the committee may have on these topics.
There are four points we would like to draw to the attention of the committee concerning the impacts of Bill C-36 if enacted. First, communication: The proposed communication prohibition as amended by the house may appear narrower than the one existing before Bedford.
However, because of its ambiguity, and because of the impact this ambiguity will have on its enforcement, street- based sex workers will continue to fear arrest and be prevented from properly screening clients.
Second, criminalizing purchase: Experience in Sweden and municipalities in Canada demonstrate that criminalizing clients replicates many of the harms that the Supreme Court found unconstitutional in Bedford. Whether it's the sex workers themselves who fear arrest, or their clients, the impact that this has on the safety dynamics are the same. Also, there is no data that indicates that criminalizing clients reduces demands. What criminalizing a client does, however, further penalizes the sex workers.
Third, benefiting from sex work and procuring: The provisions of Bill C-36 which intend to protect sex workers from exploitation are so broad that they will continue to target third parties sex workers work with. These provisions will have the same impact as the one the Supreme Court found unconstitutional for preventing sex workers to work with people who could enhance their safety and with other third parties providing them legitimate services.
Finally, working indoors: The Supreme Court found the prohibition of bawdy houses to be unconstitutional because of its negative impact on sex workers' security. Bill C-36 will not reinstate this prohibition, but the impact of its different provisions will mean that operating indoor venues cannot be done legally. In essence, it reintroduces the same prohibition with the same harmful consequences via different means.
For all these reasons, the main provisions of Bill C-36 would not withhold constitutional scrutiny, but most importantly, we can't wait for this bill to be passed and make its way to the Supreme Court because the bill will put the lives of sex workers at risk in the immediate future.
Kara Gillies, Member, Canadian HIV/AIDS Legal Network: Thank you for the opportunity to address you today. At the outset, I wish to express my concern that under this bill the dangers imposed on sex workers by the old legal regime will remain the same for some and will worsen for many. Back when I worked the street, the communicating law prevented me from effectively screening clients or negotiating the terms of the exchange. The opportunity to take these most basic of measures would have gone a long way to enhancing my safety. If the law had been slightly different and had allowed me to hold my half of the conversation but had silenced my clients and made them fearful of arrest, the impact would have been the same with my safety equally jeopardized, and that is what we have seen with recent client-focused law enforcement in various municipalities and what we will see with this bill's proposed sanctions against purchasing sex.
When I moved off-street and was no longer a key target of the communicating law, I was immediately struck by how much easier and safer it was to be able to openly talk with clients and to manage their expectations in keeping with my own preferences and boundaries. I have to say I find it deplorable that this bill's blanket prohibition on any client communication in any context totally jettisons this safety measure. Off-street workers will face the same legally imposed dangers that those on the street have been subjected to for years.
I'm also worried about the safety impact of the material benefits provision. While I appreciate the exemptions may allow a worker to hire a bodyguard or receptionist, I'm mindful that only a tiny number of highly privileged workers will have the resources to do so. In essence, the law will require folks to set up their own small businesses, which is often out of reach for the majority of working people, regardless of industry. Instead, many sex workers seek out parlours and escort agencies because they offer beneficial services such as screening, secure venues and advertising. Sadly, the proposed sanction against commercial enterprises criminalizes this option.
I ask you to truly consider the consequences of this. If I have $50 to my name and my rent is due and my fridge is bare, I can't afford to spend money on advertising or security or a hotel room, and if I don't have the option of taking a shift at a place like an agency, I am then susceptible to turning instead to a potentially unscrupulous or even abusive individual of the sort we've heard about today.
Certainly abuses can be perpetrated by commercial enterprises and individuals alike. Fortunately we have criminal laws to address behaviours such as assault and forcible confinement, as well as laws against trafficking and living on the avails of or purchasing the sexual services of somebody under the age of 18. I understand the argument that having an economic interest in somebody else's sex work can indeed facilitate exploitation in the pursuit of profit. The sad reality, as we all know, is that this dynamic holds true in any industry, and that is precisely why we have labour and employment laws and it's why we need to bring commercial sex businesses out of the criminal shadows and into the same regulatory frameworks that uphold the rights and safety of working people at large.
For these reasons, and the ones detailed in our brief, we urge this committee to reject Bill C-36 in its entirety. Thank you.
Senator Baker: Thank you to the witnesses for your excellent presentations. They were very, very informative.
My question is to the last two presenters, and basically what you were saying is that this bill will not benefit persons who are providing sexual services if it is their own sexual service that they are providing. However, I'm sure you will agree that it has always been illegal to pay for sex. It has always been illegal. People have been charged over the years; we know that. But now for the first time, wouldn't you agree, under this bill, if I read clause 286.5:
286.5 (1) No person shall be prosecuted for
(a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or. . .
For the first time in Canadian history, we have now a provision in which a prostitute is immune from prosecution for receiving a material benefit. Then it goes on to say:
(b) an offence under section 286.4 in relation to the advertisement of their own sexual services.
For the first time you have a law in Canada that says that a person can advertise their own sexual services. And then it goes on and says that:
(2) No person shall be prosecuted for aiding, abetting, conspiring . . . if the offence relates to the offering or provision of their own sexual services.
In other words, operating with somebody else and collectively conducting that. For the first time we have that.
If we go back a page, for the first time we now have protection in which a prostitute will be able to have a bodyguard or driver or a receptionist if it is for the provision of a service that is a legitimate service. That's never been in the Criminal Code before.
If you go back another page, it talks about the provision of somebody living off the avails of prostitution in which if it is a legitimate living arrangement you can't be prosecuted.
What do you say to the people who put the argument like I have just put it to you, that there are provisions in this bill that will protect prostitutes that we've never had in Canadian law before? And how would the benefits of all of those provisions in this law be negated by the other factors that you think will come into play to negate them?
Ms. Claivaz-Loranger: At first glance it might look like some of the provisions will enhance the security of the sex workers. There is one dynamic that will change under the bill. Until now, paying for legal services was not a crime. It will become a crime now, and we've seen from other experiences, whether in other jurisdictions in Sweden or from studies that Pivot has done from Vancouver, that when the client is criminalized, it creates the same dynamics that we used to see when both the client and the sex workers were criminalized for communication.
With respect to sex work taking place in the streets, we are very much concerned about negotiations still having to be done very quickly and still taking place in more remote areas. Yes, the street worker might not be worried that she will be arrested, but if her client is going to get arrested, she will not be able to work either. So she will have to abide by the safety concerns of the client, who will be more stressed. It's going to be still very difficult for her to assess the situation.
Now an option could be, well, great, but they can work indoors so there will be increased safety. The truth is that the different provisions of the bill will not make it accessible to work indoors. First of all, because it's only if you sell your own services that you are immune from prosecution, one could work by herself indoors if she has the resources, which I think my colleague can speak to is not the case for many of the street-based sex workers who do not have the possibility to work indoors. But as soon as you hire people, it's unclear whether security staff or a receptionist could fall under criminal law and be prosecuted because of this exception to the exemption about commercial context.
What the minister made clear earlier is that they consider any commercial setting to be exploitative. Even if the sex worker works by herself and then she hires people, the minister said we will have to see in such a situation if it would be considered exploitative. It doesn't take away the risk of prosecution of people who would potentially work with the sex worker.
What are the chances that somebody offering receptionist or security, which are legitimate services, will accept working in situations where they know that this can be taken to court, they could be prosecuted, and then afterwards we would study whether or not there was exploitation?
For all these reasons and because of the prohibition on advertising, how could a sex worker advertise if no editor or website can carry her advertisement? Working indoors would likely not be a possibility.
Senator Baker: That's excellent. Let's go to the purchasing or to communicating for the purpose of obtaining a prostitute, and let's talk about all those people who have been charged with buying sex.
Mr. Smith, you referenced that you speak to john schools. Could you tell the committee, first of all, the types of people you would find in those john schools? Do they serve a legitimate purpose? Should the government be paying more attention to the john schools? What was your reaction to those people who had been charged with a criminal offence of purchasing sex?
Mr. Smith: By the huge majority, and I've spoken at 130 schools that average about 10 men, so it's probably about 1,300 men I've spoken to, at the end of school, the men have to talk to the presenters, and some of the presenters are former sex workers, and I tell Cheri's story, and I have not had a single man say, "This has made no difference to me. I can't see why I shouldn't be able to go out and buy a prostitute." Every man says "I'm sorry," often in tears, asks for forgiveness from the girls. I have trouble believing this, but they say, "I had no idea I was causing this much harm." They say, "I won't be doing this again." Some of the former johns that speak also try to encourage the men to change, they ask how many are married, and I'm surprised at the number of men who put up their hands. They ask them, "Do you have daughters, granddaughters," and many of them do. So they ask the next question, "What would you think if your daughter or your granddaughter was out there? Would you sell your daughter to this guy?" Then it just changes the way they look at it and realize the harm that's being done.
The john schools have made a huge difference. Several of my very close friends now are former johns. I have coffee with one fellow almost every week, and he's working through the things that have happened to him, but it resulted in the breakup of his family. He's since been remarried and they are doing well. I just see so much damage being done, not just to the sex worker but to the men who are willing to pay money for sex. I tell them honestly: "You know, guys, I'm not here to lay a guilt trip on you, but if you had not been willing to pay for sex, my daughter would still be here today."
Senator Batters: Thank you very much all of you for being here today.
First, to Mr. Smith and Mrs. Smith, from Regina, welcome. It's such a beautiful city and my home city. I am happy that you're here to join us today and tell your daughter Cheri's story. I watched your story when you testified before the House of Commons Justice and Human Rights Committee and found it very powerful, particularly when I reread the testimony preparing for this meeting. Your daughter Cheri died in 1990 at 18, and she was a Regina girl just like me and only two years younger than me. Reading that, it strikes home how this situation can devastate a family.
I want to thank you for all the work you've done in Cheri's memory to try to prevent similar tragedies from happening to other Saskatchewan families, both through your work, Mrs. Smith, in speaking to all these school kids about how these situations can quickly escalate and get out of control, and for your work, Mr. Smith, dealing with the johns in john schools. It sounds you are making a difference, and thank you for doing that.
I go back to what you indicated, Mrs. Smith, in your opening statement today "There were hundreds of men who sexually used and abused our daughter. She was raped and beaten, robbed and thrown out of a moving vehicle. We never heard of any of those men being charged."
Now you're saying that the buyers of sex will be seen as the abusers they are. I would like you to comment further on that aspect of Bill C-36 and why you support the criminalizing of the purchase of sex.
Ms. Smith: Someone earlier today said we're just talking about women, not about men, and that it's men that drive the sex for sale, and I agree with that. I don't know how I would feel if someone came up to me and said, "I knew your daughter; I was one of her clients." That would be really hard. Yet there were many men, and we know that from some of Cheri's personal effects after her body was found.
But I also believe in restoration and healing. As Ed has mentioned, at the john schools we see the men finding out about the impact they are having, and I believe that would be a better way of getting men to stop buying sex, if they could see and hear from the victims and get a chance to make different choices.
So I'm really hopeful that this legislation will bring that about. Somebody mentioned the $20 million, and we need to have more john schools. In Saskatchewan, we have three cities that have john schools, but it's dependent on how frequently the police go out to make arrests, so we know that we're just hitting the tip of iceberg. There are many other men out there, many of them fathers and grandfathers, who are buying sex from — well, I consider them victims. My daughter was a victim. So I'm glad that we have Bill C-36.
Senator Batters: Ms. Grant, thank you also for your work in the name of Jessie, and thank you very much also for bringing that personal but very moving item that you did on the picture of the angel, and I liked thinking about your daughter in a sparkly dress; that was a nice image to think about.
You also testified before the House of Commons Justice Committee, and you said:
Now this is why I believe in Bill C-36. The biggest reason is that we can't have the alternative. . . . We can't risk more and more people being forced into the sex trade, if this was to be a legal job, as there would never be enough people to fill the potential job openings. . . . we need to stop this demand, because that's the only thing that's keeping it going.
Could you please elaborate on that?
Ms. Grant: I said that because it's true. If there was no demand, there would be no need for supply. Like Mr. Smith said, some of those johns don't know the harm they are doing because to them it's all about self-pleasure. So I believe there's a lot of men out there who like to hire prostitutes, and if this becomes a legal job and brothels open up and there are job openings for women, those jobs are not going to be filled. There will never be enough women to fill a brothel in, say, Kamloops, where I live, with 95,000 people.
I think about things that could come from that, like having to apply there. I'd lose my job. I'd need to go on Employment Insurance. I have to apply for all the available jobs around. I look at those types of things. If we didn't have to have women to supply the demand or men to supply the demand, then I believe it would reduce what we're going through. I believe that it was the demand for sex that had her daughter killed and my daughter missing for eight and a half years.
My youngest daughter was born in 1990 and I think about the 24 years of my Jenny and her three children and in those years that's how long you've been grieving. I believe it's such an important thing to stop the demand. There are never going to be just average joes. There are always going to be violent ones. When you get into a car or have a violent john come into your home or room, you don't know that. You can talk to him till you're blue in the face before the actual act but you're not going to know if he is violent. There are so many different risks.
I just want this bill to pass.
Senator Batters: You indicated earlier in your opening statement that when your daughter went missing it initially wasn't considered trafficking because people weren't trafficked in Canada. I just point out that there will be a lot of talk about New Zealand as we deal with this subject in the next couple of days. A report from New Zealand's government dealing with their prostitution review commission in 2003 expressly stated that in New Zealand trafficking is not considered trafficking unless it's across international boundaries, so that's a point to consider.
Ms. Grant: For me, trafficking doesn't have to be international because you can be trafficked out of your father and mother's home as a teenager and go home every night at the end of that night. It has nothing to do with it. I believe that Canada's eyes have greatly opened up to the crime of human trafficking since 2006. There is not a day that goes by that I don't hear another story of arrests and rescues of victims. It's really making a difference.
Senator Jaffer: Thank you to all the witnesses for your testimony.
Ms. Grant, I want to thank you for sharing your story. It is very difficult, but there is also the positive way in which you have turned something painful in your life to come and help us. Thank you very much.
All three of you have talked about education. If you were going to craft education or raise awareness, what would that look like? The chair will only give me a few minutes so you can send it in later to the clerk if you want to think about it.
Ms. Grant: I go into high schools all over B.C. and Alberta and I give education speeches to the students. Looking into the audience while I'm talking, I can tell which ones of those teenagers — and you might know what I'm talking about — are listening and the ones that are whispering, writing or texting while I'm talking. I know which ones I've captured, and at the end of my talks young men and women will come up and thank me and hug me. I don't have anything that I could suggest to draft because that's out of my realm of any kind of education that I have, but I know that I've seen positive results.
I went to Ashcroft, a small town in B.C. with not very many people, with Crime Stoppers. We gave our talk. The principal was away that week. She called me the next week and said that so many of her students came up to her and told her how amazing that presentation was and how much they appreciated it. She called me to thank me because it made such a difference in her school. It also happened in Boston Bar, which might have 300 people, where a girl went missing, and I was asked to speak. Their school is K through 12; it's such a small place. I got a lot of positive results. It's the small towns. They are sort of left in the dust when it comes to thinking this is not going to happen to them because this is a big city issue, but it's not. It's an issue for everyone.
Mr. Smith: I think men need to be educated about the dangers of pornography. A presenter earlier in the day talked about children. I have a nine-year-old grandson. Thankfully, my son and his wife are very vehement about monitoring his Internet use. Almost all the men I talk to after the john schools, I ask them, "How did you get started?" Over and over again, it started with pornography. We need to educate men about the dangers of pornography.
Senator Jaffer: I will ask three questions and then you can answer them. I didn't quite understand your bawdy house explanation because I understood from the minister this morning that women could now work from home, if you can explain that. The other thing is that I was always confused about the advertising. All day people have talked about women can advertise, but where would they advertise if the person who prints it will get prosecuted?
Third, more for Ms. Gillies, I've talked to a lot of people this summer about this bill, and the big issue that comes up is how is the woman going to assess the client when the client is so nervous, and the biggest issue when I've spoken with people who work with sex workers, they have said that's the issue: How are they going to assess clients?
Ms. Gillies: In terms of further explanation around the bawdy house provision, certainly it is my understanding that under this bill the bawdy house for the purposes of prostitution section of the Criminal Code will be repealed. However, because of the prohibition against commercial enterprises, it's only the most privileged workers, people who have their own space, can rent their own space and don't have a roommate or children living with them who will be able to, in real life practical terms, take advantage of this new part of the law.
It's also the case that while there certainly is, as was found in Bedford, a security benefit to working out of a fixed indoor location where, for example, you can have security cameras; you know where the entrances and exits are; you know who is and isn't on the premises; those benefits are going to be totally offset by the fact that now, as a sex worker, you will not be able to screen clients or negotiate with them even in a private place, and that's one area where the law has changed.
In the past, it wasn't ever criminal to purchase or to sell sex. It was criminal to communicate for the purposes of prostitution in a place that was public or open to public view. So if I met a fellow in his hotel, prior to that I would have called him up on the phone, or we would have had an email exchange, and I would have been able to assess by his tone, his demeanor, what he was asking or not asking, what the safety risk might be and also what he was actually looking for. Knowing in advance what somebody's expectations are really sets the tone for the transaction and can go a long way to avoiding misunderstandings and hence dangerous situations.
Ms. Claivaz-Loranger: To finish up on the bawdy house prohibition, it was struck down by the Supreme Court and it's not reinstated by the bill. However, what the bill does is that whenever transactions are seen as taking place in the context of commercial enterprise, any immunity that would be given to people working with sex workers is automatically removed irrespective of whether or not there is exploitation. It means that as soon as somebody is making money or getting paid by a sex worker, if you are not the person selling your own services you can fall into the ambit of criminal prosecution.
What Kara was referring to is a place where there is structure, where safety measures can be put in place. It's very unlikely that such a place could operate legally. It's not all sex workers who will have the capacities and financial ability to work from their house.
For the advertisement, basically Bill C-36 prohibits advertisement. Everyone who knowingly advertises sexual services will be considered guilty of an offence. There is an immunity for the person who is advertising her own sexual services, but, as you said, you cannot advertise if you have no means of advertising. The Internet host could be prosecuted; the newspaper also. Other than somebody in the street distributing flyers of their own sexual services, I don't see how any advertising could be taking place.
How do you operate from the safety of an indoor location if you can't reach out to clients?
[Translation]
Senator Boisvenu: Thank you very much for your comments and testimony. Ms. Grant, Mr. and Mrs. Smith, I also lost a daughter at the hands of a rapist. I understand your grief and the courage it took to talk about your experience this afternoon. I also understand that you expect the government to do something about the evils of prostitution, especially when it comes to young women.
There is no doubt that your daughter was a victim of prostitution. I sometimes feel that groups advocating the liberalization of prostitution fail to understand that the young prostitute — who may be killed or assaulted — is not the only victim. Her whole family are victims.
As for your support of Bill C-36, how do you think that piece of legislation could effectively protect not only the young female or male prostitutes, but also their family, their parents and grandparents?
[English]
Ms. Smith: That is a very good question. I always wanted to be a mother of a bride. I only had one daughter and one son. I looked forward to that day when she would be dressed in white and I'd be able to attend her wedding. I looked forward to the high school graduation that never took place. There were so many things that were robbed from us. When a child dies, you lose your future. You lose the future that you were going to have with that child or with that daughter or son. It's a very hard thing. All the family members go through grieving. It's very hard to grieve.
I think for both Ed and me, it's been advantageous to tell Cheri's story and to believe that it's making a difference in young people's lives, and in the men's lives who are buying sexual services. Again, we feel that the education part is important.
I'm sorry about the loss of your child. I certainly understand the pain that goes along with that.
Mr. Smith: As far as the family is concerned, one of the things that Linda and I experienced when Cheri was on the street was we felt helpless to be able to intervene. We contacted police, and they would say, "Well, unless she's willing to testify against him, there's nothing we can do." As Linda said, because she was a juvenile, she was like a nuisance. The police say, "Well, it's easier. We'll just put her on a bus and send her home, and then we don't have to deal with her through the legal system." We felt helpless. I really would hope that maybe Bill C-36 somehow could give parents more authority. It was obvious what was happening to her, but legally there seemed to be no way we could intervene. I know there have been some laws since Cheri's death. I know Joy Smith introduced a law that increased the age where we would have been able to intervene, so I'm very thankful for that. It's such a helpless feeling for a parent when you see your child involved in this and you can't do anything.
Ms. Grant: We didn't know what was happening to Jessie, so we didn't have any advance warning. Ours hit us in the gut like a ton of bricks when we found out.
I think Bill C-36 is going to make a lot of difference in many ways simply because the authority is going to come down to the people who are responsible. The person responsible for a prostitute having to have sex with a man is the man who is wanting it. If a pimp is forcing the woman or the girl or the man to go with this man and have sex and then get beaten if she doesn't go, all the choices have been taken away.
You were talking about the john school. I want to see john schools all over. We don't have anything like that. Bill C- 36 will increase other communities to open up things like john schools and the education process.
I kind of lost track of your question while I was listening, so I hope I've answered what you were wondering.
Senator Boisvenu: Yes.
Ms. Grant: Thank you.
Senator Joyal: I've listened carefully to what you have said this afternoon, and I have two questions. The first is for the HIV network. If I understand your reasoning in support of your conclusion, in each case when the prostitute is not in a position to maintain her health condition because she is caught in an environment where she cannot negotiate or express the conditions under which she will accept having sex for remuneration, or if he or she practices sex in an environment where there's no control on the health of the person, or where the control and health cannot happen because of all kinds of prohibitions, in that context, you come to the conclusion that the provisions of the bill that maintain that imbalance would be struck by the court as being against Bedford — in other words, against the security of the person. Am I right in interpreting your position in that simple form?
Ms. Claivaz-Loranger: Yes. I think you might have summarized it better than I did. That is exactly what we're saying. The only thing I want to add is that if it's not possible to negotiate how and where the transaction is going to take place, that definitely has an impact on the health and security of the sex worker.
The second point both Kara and I made is control over security measures, not control over health measures. I want to make it clear that we're not in any way suggesting what sometimes takes place under legalization regimes where specific measures are put in place, such as mandatory HIV testing. That in itself is actually a violation of human rights, which does not help in the fight against AIDS. It tends to push people away from services. I wanted to make that point clear.
Ms. Gillies: If I could add, the proposed prohibition against commercial enterprises serves as a barrier to effective HIV education and outreach because these establishments will operate under the pretense that sex isn't taking place. That makes it hard for outreach workers or peer educators such as myself to make contact with other workers. Indeed, it is well established that sex workers doing safer sex education with each other is extremely effective and puts us as leaders in the battle against HIV/AIDS here and internationally.
Senator Joyal: In a previous decision, the Supreme Court established the responsibility of a person with HIV to inform the partner with whom they may have sexual intercourse of their condition. In my opinion, there's a corollary to that decision. That decision means that a person cannot be put in a position whereby they would not perform sex in the safest context possible. If you have a responsibility to inform the person, we also have the responsibility to make sure that the person is aware of the risks if the act took place. That previous decision of the Supreme Court, in my opinion, has an impact on the way the court will be called to interpret those sections of the bill.
Ms. Claivaz-Loranger: It's also part of the law now and as such could be subject to interpretation by the courts.
Senator Joyal: I think it's a Manitoba case.
Ms. Claivaz-Loranger: Yes, and there is also a case in Quebec.
What protects people the most is wearing condoms. With respect to HIV, many people living with HIV don't know they have it. Clearly, you can't let someone know you have HIV if you don't know yourself. As a matter of public health principles, it has been recognized that the most important thing is to wear condoms. It has been shown in different studies that criminalization of sex work has been correlated with a lower use of condoms. For sex workers, having condoms on them may be used as evidence of sex work in contexts where the client is criminalized. For example, in Sweden police have gone through the personal belongings of sex workers to find condoms to show that there was sex work even if the sex worker wasn't the one being prosecuted but to aid in the prosecution of the client. We're most concerned about that.
Wearing a condom is the safest measure. Safe sex is the most important thing to protect sex workers' health. Anything that would make it harder for them to do that, whether it's at the time of negotiation, to make sure the client knows it's going to be protected; or whether it's not carrying condoms, those are the sorts of things we're concerned about. All of these points were made in a recent publication of The Lancet, a leading medical journal, which came out after the hearing in the house, so we now have the benefit of this information. The Lancet dedicated a whole issue on HIV and sex work and they made the link to how criminalizing sex work is making it harder in the fight against AIDS.
Lastly, one of the studies made a specific model with what is happening in sex work in Vancouver. According to their estimates, nearly 39 per cent of infections could be diverted among sex workers and their clients in the next decade if only decriminalization were to take place. That's in a model for the area of Vancouver. It really has an impact.
Senator Joyal: On the second round, I have a question for Ms. Grant and Ms. Smith.
[Translation]
Senator Dagenais: My first question is for Mr. and Mrs. Smith.
Could you tell us why some girls, like your daughter, despite the media awareness raising, have been taken in by people we could refer to as "smooth talkers"? Do you think this is just a matter of money or could it have to do with something else?
[English]
Mr. Smith: In our daughter's case, it was a money issue. The young man who convinced her — we call it the lover boy scenario — had a $400-a-day drug habit. He needed to get money for his drugs and Cheri was the way he made money. She never had a penny to her name. She worked the streets of Regina. We would go and pick her up and take her out for coffee. We always had to pay for the coffee; she never had any money. So, it's money. This is what's behind the whole industry.
Ms. Smith: On the other hand, for Cheri, it was love. She thought that she was in love with this young guy to the degree that we could not convince her to leave him or to speak against him. Even a social worker tried to convince Cheri that she didn't have any money to show for how long she had been working. This man so psychologically controlled Cheri that she was willing to do anything that he asked her to do because she thought she loved him. She told us straight up front that this relationship meant everything to her and she would do whatever she needed to do to keep it.
[Translation]
Senator Dagenais: My second question is for Ms. Claivaz-Loranger.
I listened to your take on Bill C-36. I spent 39 years as à Sûreté du Québec police officer. So I have witnessed sexual exploitation, violence and related criminal activities first hand. I have even been exposed to human trafficking, organized crime, as well as drug-related crimes.
We know that the bill's goal is to protect individuals and communities, and especially to reduce the demand for sexual services, since we are well aware that, by reducing the demand, we will reduce the number of victims.
I am having trouble understanding your opinion that Bill C-36 will reduce clients' security level. I would like to hear your thoughts on that.
[English]
Ms. Claivaz-Loranger: I was going to start in French but I will continue in English.
I'm thanking you for this opportunity to express myself on this topic because I want to make it clear that we consider human trafficking to be a very serious crime. It is a crime and should remain a crime. We're just stating the difference between adult consensual sex work and human trafficking.
One thing that came up from two studies conducted in Sweden is that there were concerns that the new Swedish law creates a barrier to the prosecution of people involved in trafficking. Before, for instance, clients would have spoken and would have come forward to give testimony and alert authorities whereas now they fear self-incrimination. We've also had sex workers reporting that it's harder for them to get help in the context of criminalization.
We are definitely not minimizing the importance of sex trafficking; we think that all measures need to be taken against it. Our concern is that the provisions of Bill C-36 do nothing to address it and they create the same harms that were raised by the Supreme Court of Canada in Bedford, which are unconstitutional. We're worried about the impact it's going to have on the sex workers and on the security of the sex workers while at the same time thinking there are laws to address sex trafficking and are used to fight sex trafficking.
Senator Plett: Senator Boisvenu actually asked the question of the Smiths and Ms. Grant that I was going to ask, so I just want to make a comment on that and not ask a question.
I certainly agree with you. I believe in any cases of prostitution there are victims. Whether the victim is the prostitute, the parents, the children or the wives, there are always victims in prostitution. I think you have addressed that.
I want to thank you for your testimony and for being as strong as you have been here today and I simply want to wish you well.
I will now ask a question of Ms. Claivaz-Loranger. This has been dealt with to some extent, but, for the record, I want to ask this question. As an organization focused on health concerns and disease control, I would think that you would at least support the government's goal of significantly reducing the incidence of prostitution in society. Certainly condoms are a way of having safe sex, but if we reduce the incidence of prostitution, would that not go a long way to reducing some of our concerns in disease and health control such as HIV and others?
Ms. Claivaz-Loranger: I'd say that we're mainly concerned about the human rights violation that happens in the context of criminalization. One of the main public health principles is that people need to be empowered in order to take the measures necessary to respect their health. This is where our concern is, as a human rights organization, namely to make sure that people's human rights are actually respected so that they are empowered with respect to their health.
I also need to state again that there has been no conclusive data that criminalizing the client actually helps to reduce prostitution. For instance, in Sweden, the numbers have been criticized a lot. Different people who evaluated the reports that came out said that there was no solid data upon which the government based its evaluation that prostitution had actually decreased. Some people have stated that street sex work has been reduced by 50 per cent, but there's actually no information as to how many of these activities could have been moved indoors.
Most importantly, in 2007, the Government of Sweden, the National Board of Health and Welfare, conceded that there hadn't been any change in the overall amount of sex work, and what they could at most discern is that street prostitution was slowly returning after swiftly disappearing post-law. I think Katrina Pacey referred to that and how it could be related to policing strategies. If police are a lot more present right after the law passed, you might see people move out of street prostitution, those who can, and move indoors instead. We can't draw the conclusion that it will actually be reducing prostitution overall.
Senator Plett: Let me draw one conclusion, if I could. You may say there aren't statistics. The one conclusion that I would draw, if the Smiths' daughter or if Jessie had had no customers, they would probably be alive today.
Ms. Claivaz-Loranger: Sadly, there are no studies, based on previous examples, that we will actually be reducing the men —
Senator Plett: They would be alive today.
Senator McIntyre: Thank you all for your presentations.
Bill C-36 may not be perfect and it may contain flaws, but for all its flaws, in my opinion, it fills a void created by the Bedford decision. When you look at Bill C-36, you will notice that there's a shift in the legislation, in other words, a shift from prostitution being essentially a nuisance offence, as described in Bedford, to the de facto prohibition of prostitution. The emphasis on Bill C-36 is to protect sex workers, protect communities and reduce demand for sexual services.
My question is this: Do you fully or partially agree with this shift of the legislator's intent, that is, the shift from prostitution being essentially a nuisance offence to the de facto prohibition of prostitution? Do you want to get rid of prostitution or do you want the shift?
Ms. Smith: Are you speaking to me, sir?
Senator McIntyre: All of you.
Ms. Smith: I'll let somebody else go first.
Ms. Grant: I'd like to get rid of it altogether, but we're pretty sure that won't happen. So what we need to do is gain some control over what's happening and allow only those who want to do it, do it. It's the bottom line. Like Senator Plett said, women would be alive or not missing today if it was not for a john or a pimp, period; that's it.
Ms. Smith: But I'm thankful that society's attitude is changing. I see this as a shift in the way we look at prostitution, and I'm glad for that.
Senator McIntyre: A good shift?
Ms. Smith: Yes.
Mr. Smith: I can understand why prostitution is called a nuisance, but that's like looking at the top of the ocean and saying, "Well, it's a little bit wet here," when it goes so much deeper. The nuisance part is such a small fraction of the damage and harm that's being done.
Ms. Gillies: If I could respectfully add that I do disagree on several points. In my opinion, the problems — and indeed tragedies — that we've witnessed aren't inherent to prostitution or sex work, per se; it's about the context in which sex work takes place, context that's criminalized, where there's stigma, and that stigma is reinforced and reproduced through things like the criminal law. It's also about systemic social inequities that play out in negative ways in the sex trade and in other arenas.
It's my belief that in a proper context, where it's safe and where people's rights are respected, prostitution actually could serve a social value. I say that simply because, at its heart, prostitution is about providing a service that meets a basic and natural human need, the need for sexual intimacy. I think that if we had a more, if not ideal, then supportive environment, socially and legally, we would then have people who do not wish to engage in sex work having alternatives, and people who are comfortable with exchanging sex for money, or purchasing sexual services, being able to do so in a way that's safe and upholds our rights.
Senator McIntyre: Going back to the objectives of Bill C-36, which is to protect communities, protect sex workers and reduce the demand for sexual services, do you think that by legalizing prostitution it would fulfill those three objectives? Do you think legalization of prostitution would protect communities, for example?
Ms. Gillies: I'm going to differentiate between legalizing and decriminalizing because, as you know, in many legalized regimes the restrictions imposed are such that not everybody has access and you create a multi-tiered system, and abuses do occur.
I do think that, in a decriminalized system, communities would be protected through the use of administrative mechanisms, such as bylaws around zoning and licensing. Certainly, sex workers would be protected, first because they wouldn't have to worry about the criminal law and law enforcement, whether it's against them or their clients, interfering with their access to safety measures or going to the police when something goes awry.
Many of the abuses — and I'll use the word "abuse" — that we see in the sex trade are correctly characterized as labour abuses. Once we move sex work out of the criminal shadows, we would be able to use employment and labour laws and other such mechanisms to better improve the circumstances of all involved. When you push something underground, you attract more criminal elements and you make it more dangerous.
Senator McIntyre: Then again, with legalization comes human trafficking and the growing of the sex industry.
Ms. Gillies: I would disagree. I think that with decriminalization, there's literally more eyes on the street. People are better positioned to report instances of abuse.
I have to say that we are not talking about eliminating the trafficking laws. The trafficking laws are important and they should stay on the books. If anything, it's good that they are being strengthened. But consensual adult sex, for consideration or otherwise, is different than trafficking and murder of children, as we've heard about previously. I do not think it's the case that the demand will push trafficking forward. I think that if there were decriminalization, there would be more perfectly willing workers because the conditions would be safer and there would be less stigma. If there were the opportunity for trafficking to occur, it would be much easier to identify it because it would be above ground, because people like myself and my clients and managers I've worked for would never tolerate it. It's not tolerated now, but often instances of abuse do not get reported because there's a fear that the heavy hand of the law is going to come down upon us.
Senator Joyal: I would like to draw your attention to page 7 of the bill, section 12. The bill redefines "common bawdy-house" in the Criminal Code. Presently, the Criminal Code, at section 197, defines a common bawdy house as:
. . . a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or to practise acts of indecency.
The bill, in fact, eliminates the purpose of prostitution because the bill now concentrates only on the acts of indecency. What legal weight do you give to that change in the Criminal Code?
Ms. Claivaz-Loranger: I think it does mean that, in theory, the prohibition is removed. The word "prostitution" is removed from the definition of "bawdy house." So the Criminal Code, per say, no longer prohibits bawdy houses.
However, the Supreme Court did say that it's important, and we all know that the different sections of the bill need to be read together. What happens is that other sections of this bill will come into play and will prevent sex workers from working in indoor locations. Some examples are the fact that, as I mentioned earlier, no one can be receiving a material benefit in the context of a commercial enterprise, and the prohibition against advertisement.
What we're saying is that the consequences of the act will be very similar to what was happening before Bedford when sex workers were prevented from working in indoor venues.
Senator Joyal: If I understand your reasoning, it means that, for instance, a person who wants to practise prostitution could team with another person who wants to practise prostitution and open a bawdy house. In other words, a place where you can entertain sex against benefit, remuneration. But if those two persons hired a manager in that place and that person would draw a salary, for instance, to maintain that house, that person would find him or herself under the other sections of the code.
That's where you say the nuance means that, in fact, it would maintain the present prohibition on a bawdy house because somebody would be the manager of the place and directing customers and making sure that everything goes as it should. Am I right in stating that in fact the amendments that are proposed to the definition of bawdy house apply only in the context of two consenting adults grouped together to offer sex in the same place?
Ms. Claivaz-Loranger: Exactly. What you described for managers is exactly our interpretation of what will likely happen. It's not even clear that two sex workers will be able to work together, because the immunity against selling your own sexual services is taken away if you are having any activity that might have to do with selling the sexual services of someone else. It's unclear.
If two sex workers are working together, you may easily find yourself in a position where you refer one client to the other person or you might be taking care of opening the door to receive the clients. Maybe one of you is good in accounting and the other is better at marketing so the roles may be separated, but then you're advertising for the sexual services of somebody else.
There's ambiguity, and we're worried that leaving the door open to having sex workers work indoors in fact will not allow a sex worker to work indoors unless maybe in a situation where she's very isolated, but even then she could not likely work indoors as she wouldn't be able to advertise.
Ms. Gillies: Not only that, but couldn't communicate or screen effectively with clients because, under the provisions of this bill, any such negotiation on the part of the client will be criminalized. Under the current laws, as I mentioned, if I go out to a client's hotel room I can speak with him freely in that environment. I can also speak with him in advance of being in that environment. Under this bill that will not be permitted anymore.
Senator Joyal: I have listened carefully to the work you do, Mr. and Mrs. Smith and Ms. Grant, and I wonder today, with the Internet age and all that kids have access to, porn and everything, all the sites to meet adults or whatever, if in fact the most effective effort would not be at the education department level. To me it's better to teach children about the risks of sex than to think they're going to find it on the Internet.
To me, sexual education needs to be accessible in the right presentation form, with the responsibility that it involves. Because today, if you don't do it, they will do it by themselves anyway. They run more of a risk of being badly informed with this than if there is open discussion for everyone to have about what it entails. I wonder, if we want to be effective, if not at that level, that we should target first rather than trying to repair the pots once they are broken.
Ms. Grant: Proactive is always better and cheaper than reactive.
Senator Joyal: In your suggestion to use the $20 million, should some money be made available for that? It seems to me that preventing and informing someone of the risks of what prostitution entails for a kid is important. It's easy to fall in love at 15, 12, we all dream of falling in love at that time with the perfect person, and we idealize the first relationship we have. We think we're going to marry that person and be so happy on a deserted island somewhere. We all dream at that age.
The risk of someone depicting that mirage of taking you to the deserted island, how do we address that situation, which is risky in itself, and how do we sensitize youth to that situation? To me, that's a way to address part of the problem.
Ms. Grant: As a grandmother now, I see that my grandchildren know a lot more and different things than I did — I was really sheltered — and than my kids did. Kids are learning a lot of things earlier and younger. Parents aren't always good at even having the sex talk with their kids. Sex education at school is where some kids learn, and through their friends and talking is how others learn.
I think if the education came through young enough — for me I get invited not usually by the schools, it's a certain teacher for that one class, or maybe there's an assembly. It's not something that the schools are participating in fully, but it has made a difference.
Every time I've talked to students I've had a result in some way, whether it's a young man coming up to me and saying, "I will never hire a prostitute in my entire life," and having that mindset, or having young women understand what could happen. We're not saying that they're all going to be Jessies or they're all going to be Cheris or they're all going to be murdered or go missing, but I think the chance of one of our daughters being murdered or missing is enough.
Anyone who has children, they know; whoever has lost a child, they know. I don't know if anyone else in this room has a family member who is missing. That's an ongoing nightmare. We don't get to have a funeral. I can't even say I think my daughter is dead because if she comes back I have to look her in the face and tell her I gave up.
We have to start young and we have to instill it. When I was young there was no talk about not smoking, and look at how things have changed. This is just another one of those things; we're at this time in society in the world now where this is what we talk about and are teaching our children.
My five-year-old grandson says to me, "Why did somebody take Auntie Jessie?" And he actually knows the name of the perpetrator simply from hearing us talk about it over his entire life. He says things like, "I'm going to grow up and be a policeman and I'm going to arrest him." He already understands.
I don't just want kids who have a missing aunt or deceased relative to get this. I want kids to have this understanding. Kids are so smart nowadays. They learn everything long before I ever did and this is just one more thing they'll learn at a young age, that they're going to be educated on. It's not going to seem weird that your child comes home and talks about preventing human trafficking or any kind of sex work. It's just going to be part of the conversation now, and I believe it's past that time.
Senator Batters: To the three of you who have lost daughters, because there has been a lot of talk about your daughters, Cheri and Jessie as prostitutes, and one who has been murdered and one missing. There's been a lot of talk about them in that context, and I wanted to give you an opportunity because you don't have the opportunity to come before a Senate committee often, I'm sure. I know that your work here will do a lot of good, but I wanted to give a chance to each of you to briefly tell us a little bit about your daughters and about their lives.
Ms. Smith: It's really an honour to be able to speak here, and really the tragedy that our family has gone through has put this situation of prostitution and youth in the forefront of many people's minds that I believe would not have happened if we weren't upfront and willing to tell Cheri's story.
As soon as the news was released in Regina of her body being found, the news station wanted us to talk about it, and so from that point on that's what we decided to do. It's just amazing where telling her story has taken us. We've been to Europe and India and up North, and it's because people don't know about these things. They don't know how to talk to their children, and they don't know about the signs and symptoms of a child engaged in dangerous activity, and we've done research and put things together and so that's what we do.
We just feel very honoured and privileged to be able to do this. I think we would rather have our daughter, for sure, but it's really a privilege to be able to speak about not only our sacrifice, but as I said earlier, the restoration that can take place when people have an opportunity to make better choices, whether you are a youth or a john or a girl who is a sex worker.
Mr. Smith: It's a little bit hard to do. But, yeah, you know, she — as you were sharing, Cheri was an honour student, top of her class, involved in sports, music, and just had so much potential, and yet we still don't understand why she would fall for the line that this guy gave her, because we were a very open, loving family. Cheri was not abused, but after her death we did find out that in Grade 9 she had been sexually assaulted by one of her peers. We found out two years after her death, and that answered a lot of questions for us.
Because when the assault happened, her behaviour changed. And so many of the girls that we have dealt with over the years, the numbers are just astronomical as to how many have suffered some type of sexual abuse. A lot of them are First Nations, Aboriginal girls. We have a friend who is a First Nations woman who was on the street for years. Her heart's desire at this point is to start a ranch that would be a recovery facility for girls off the street.
When I hear $20 million in the bill to be involved, I can just see if she were able to somehow tap into that to fulfill this dream she has to help these girls. So many First Nations girls in our city really need someone to come alongside of them and help them.
We've received wedding invitations from gals that Linda has dealt with in their family to help the girl realize the danger she's getting into. Years later we get a wedding invitation from a girl we don't know who this is. She kind of realizes, she phones and says, "You don't remember me, but, Mrs. Smith, you came to my house and talked to my mom and let her know what kind of guy I was going out with, and I'm getting married today because I realized you were telling the truth and so I dropped him and now I have got a good guy and I'm getting married." There are those encouragements that come along, and we are so thankful for that.
I agree about education. Sex education for children needs to be education that says sex is more than a physical act. It's so much deeper than that. It goes to the core of your very being, and so I'm really encouraged by this step, and I hope we take more steps in the future.
The Chair: We are going to have to end it on that heartfelt note, and we appreciate the testimony of all of you here today. It is very helpful to our deliberations.
We will reconvene at 9:30 tomorrow morning.
(The committee adjourned.)