Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence - September 10, 2014
OTTAWA, Wednesday, September 10, 2014
The Standing Senate Committee on Legal and Constitutional Affairs met
this day at 9:31 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.
The Chair: Good morning. Welcome, colleagues, invited guests and
members of the public who are following today's proceedings on the Standing
Senate Committee on Legal and Constitutional Affairs. We are continuing our
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.
I want to mention that pre-studies are a unique feature of the Senate.
They allow committees the opportunity to study the subject matter of a bill
while the bill is still before the House of Commons. This is our committee's
second meeting on this subject.
I'd like to welcome our first panel of witnesses: from the Criminal
Lawyers' Association, Leo Russomanno, Member and Criminal Defence Counsel;
from BridgeNorth, Casandra Diamond, Director; from the Canadian Council of
Criminal Defence Lawyers, representatives Graeme Hamilton and Nana Yanful;
and from the London Abused Women's Centre, Megan Walker, Executive Director.
Following the agenda, as you're listed on the agenda, please proceed with
your opening statements. Mr. Russomanno, please proceed.
Leo Russomanno, Member and Criminal Defence Counsel, Criminal Lawyers'
Association: Good morning. Thanks for inviting me to appear again. It's
always nice to be here in the upper chamber. I was present at the committee
hearings in the house, so I don't intend to just regurgitate what I said
On behalf of the Criminal Lawyers' Association, we do have significant
concerns with respect to the constitutionality of Bill C-36, particularly as
it relates to sections 7 and 2(b) of the Charter. Simply put, we take
the position — and I think it's obvious that the government has seen fit to
address this serious issue with resort to the criminal law, which we view as
a very blunt tool to use in response to what is fundamentally a social
issue. It's a blunt tool, and it takes a punitive approach. The position of
the CLA is that this approach, whether it's asymmetrical or not, contributes
to harm to sex workers, and that is our fundamental concern expressed
through sections 7 and 2(b) of the Charter. I'll elaborate in a
moment about that.
The legislative objectives of Bill C-36 have been significantly altered
from the previous legislation, and that is quite obviously a direct response
to the findings of the Supreme Court of Canada in Bedford. Rather
than being nuisance- based, the legislative objective now claims to address
issues such as eradicating prostitution and encouraging sex workers to make
complaints to the police in cases of violence. With that objective in
particular, I fail to see how any of the provisions of this legislation
would in any way encourage sex workers to actually report incidents of
violence to the police. It strikes me as a serious problem with section 7 of
the Charter, in particular arbitrariness.
I want to raise a caveat, because it was something that was addressed in
the house committee: No one is arguing that it should be legal to coerce
anyone into prostitution. No one is arguing that, so it ought not to be
raised as a straw man. No one is arguing for the Charter rights of johns, as
it was suggested in the house. The Charter concerns relate to the sex
workers who face harms that are in fact perpetuated by the legislation.
The CLA does not encourage exploitation of sex workers or seek to block
paths to exit for those who want to exit. That's not the position being
taken by the CLA. In fact, it would be ridiculous to take such a position.
And taking a position of outright decriminalization is not akin to saying
that one would want one's own children to be involved in the sex trade. That
is also a fallacious argument.
Bill C-36 is based on a number of false premises. Number one, in my view
the most significant, is that demand can be eliminated by asymmetric
criminalization. I think the record is quite clear. Minister MacKay has
already indicated that this goal is aspirational in nature. He has admitted
that this is not an objective that is likely to be fulfilled, and I think
it's a realistic position to take, given the years of experience we have
with criminalizing the sex trade and seeking to eliminate demand.
Number two, not all sex work is exploitative. Certainly there is sex work
that can be exploitative, and I think a lot of the debates concern how much
of it is exploitative. As I stated before, it's not the position of the CLA
that the law ought to encourage these kinds of exploitative relationships.
Number three, asymmetric criminalization will not protect sex workers
from violence. Providing this selective immunity to the sellers of sex
versus the buyers is not going to, in my view, protect sex workers from
Number four, this asymmetric criminalization will not concretely assist
those in getting out of the sex trade.
Just to frame it in terms of section 7, the section 7 Charter analysis
really concerns looking at the legislative objective and comparing it to the
outcomes of the legislation itself, where you have a legislative objective,
for example, of eradicating prostitution. And if the measures you take don't
actually do anything to eradicate prostitution, then what you have is
fundamentally a problem with arbitrariness, which is a principle of
fundamental justice, and that is the main concern under section 7.
The Chair: Thank you. Mr. Hamilton, please proceed.
Graeme Hamilton, Representative, Canadian Council of Criminal Defence
Lawyers: Good morning, chair and members of the committee. Ms. Yanful
and I are here today as representatives of the Canadian Council of Criminal
Defence Lawyers. The CCCDL was formed in November of 1992 to offer a
national voice and perspective on criminal justice issues.
Since the organization's inception, the CCCDL has intervened in important
cases before the courts of this country. It has been invited by the federal
government to consult on major pieces of criminal legislation, and it is
often asked by the media to comment on current issues. Our representatives
have appeared before the Standing Senate Committee on Legal and
Constitutional Affairs and the House of Commons standing committees on
justice, human rights, public safety and emergency preparedness.
The current board has representatives from all ten provinces and three
I would like to address two aspects of the legislation that are of
concern to the CCCDL before turning things over to Ms. Yanful, who will use
the balance of our allotted time to make some additional points.
First, prostitution is often envisioned as a big city issue, but it is
not. A sex trade exists in medium-sized and smaller communities across the
country, and the CCCDL fears that the negative effects of this bill will be
felt acutely in small northern locales. Anecdotally, it would appear that a
large proportion of the sex trade in these communities is what was referred
to by Aboriginal Legal Services in its intervention in Bedford as
"survival sex," sex to enable women who are living in inhospitable climates
to put a roof over their heads. These women engage in the sex trade as an
act of desperation, and it would seem that they are unlikely to be deterred
by provisions discouraging prostitution. Provisions that stigmatize and
marginalize those involved in the sex trade and that push it into the
shadows simple make these vulnerable women less safe.
Of particular concern is the prohibition on communicating in public
places where a child can reasonably be expected to be present. Kim Hawkins,
a board member from the Yukon, has described the situation in Whitehorse.
In the city of Whitehorse, the High Country Inn is next to a playground,
and the Stratford Motel is on the next block from Wood Street secondary
school and within a few blocks from the Whitehorse elementary school. Within
an area that is roughly 14 blocks long and four or five blocks deep,
Whitehorse has two schools, both movie theatres, major grocery stores, as
well as the majority of hotels. Individuals attempting to access hotels will
likely be near other services where children might reasonably be expected to
go, such as schools, theatres, grocery stores, banks and dentists, et
Secondly, if Terri-Jean Bedford, Valerie Scott or Amy Lebovitch came to
one of us for an opinion as to whether the new section 286.2 addresses the
concerns they raised about the old "living off the avails" proscription, we
could not say that it does. I recognize that the minister and officials from
the Department of Justice have testified before the house committee and here
that this provision is not intended to catch bodyguards and so forth, but
the fact is that anyone living with or habitually in the company of a person
offering sexual services is deemed to have received a material benefit, and
the exceptions are vague and do not lend themselves to a single objective
interpretation. For instance, looking at section 286.2, what is a
"legitimate living arrangement"? What does it mean to "counsel or
encourage"? Most significant, and this was certainly an issue before the
house committee, what does "in the context of a commercial enterprise" mean?
A commercial enterprise, it would seem, need not involve more than one
person, and if that is so, section 286.2 casts an extremely broad net.
One amendment that would go a long way toward clarifying the scope of
this provision would be a further delineation of what constitutes a
commercial enterprise, or, better yet, deleting section 286.2(5)(e)
altogether, leaving intact the remainder of this subsection, which is
directed at exploitation.
Nana Yanful, Representative, Canadian Council of Criminal Defence
Lawyers: Good morning. Thank you for the invitation to appear in front
of you today. It's an honour to have this opportunity to share briefly some
of my thoughts.
While the purpose as set out in the new bill is cognizant of the real
harm that some sex workers face and has tried to move away from the
paternalistic lens through which it views choice, its message fails when it
meets the language in the legislation. It fails to recognize the diverse
experiences in the sex trade, makes it difficult if not impossible for sex
workers, specifically street-level sex workers, to do their work in safe
environments, and undermines the freedom-of- speech principles in the
advertising sections, diminishing the capacity of sex workers to safely
screen their clients.
First, the new communicating and advertising provisions do not address
the concerns raised by the Supreme Court of Canada in Bedford. These
sections prevent effective screening of clients and risk criminalizing
people not intended, specifically Aboriginal and racialized women,
transgendered persons and poor people who engage in street-level and
survival sex work.
Second, the continued stigmatization of sex work exacerbates the power
imbalance that already exists between law enforcement and marginalized
Under section 213, police are able to detain sex workers under the threat
of conviction. While it has been suggested by some police witnesses
appearing before the house that this section can be used as a policing tool
to engage with sex workers who appear to be in a vulnerable situation, using
the threat of conviction to access safety as a bargaining chip would fuel
further distrust between police and sex workers, many of whom already have a
complicated and precarious relationship with police.
In these ways, the section fails to meet the objectives of the
legislation, and fails to take into account the concerns raised by the court
It is difficult to see how the legislation, as is, will stand up to
On behalf of the CCCDL, Mr. Hamilton and I thank you for the opportunity
to be here and welcome your questions.
The Chair: Thank you. Ms. Diamond.
Casandra Diamond, Director, BridgeNorth: Thank you for the
opportunity to continue the conversation surrounding Bill C-36. My name is
Casandra Diamond, and I'm here to speak to you today from the perspective of
10 years of experience. It is hard to sum up in five minutes. I'm going to
leave it to the others and to your good judgment to address the theory and
Since my earliest remembrance, I disliked being born a girl because I
equated my sex with repeated childhood sexual abuse and other abuse, and
with no intervention from society, I felt less than valuable. But it was
within the confines of prostitution that I really came to hate being a
woman. I know for sure that prostitution is exploitive, pervasive and
constitutes systemic violence against women. I worked with no one who chose
or liked what she was doing or felt safe doing it. There was no personal
choice, no self-dignity, no hope, which is a swear word, by the way, in the
industry, and no safe place to turn. We don't need to wonder why women don't
speak up to the truth or run away. It's simply too dangerous to cry out for
There is a harsh reality I'd like to talk about today. Canada already has
legalized prostitution by way of municipal licensing. We just don't call it
that. Look at Toronto, for example. Body rub licensed facilities are
required by the municipal licensing authority to test for STIs before a
licence is granted to a woman. We must ask ourselves: Why test if attendants
are not required to engage in sexual activity? Municipal licensing
normalizes prostitution; it renders it invisible, not underground, and it
allows us as citizens to believe we don't have a problem. The city makes
lots of money, the parlour operators get rich, the johns can get any sexual
performance they want, and society doesn't have to deal with the reality of
sex for money on their neighbourhood streets.
Trafficked women and other vulnerable women are stock in these sex shops.
Other criminal activities thrive within. The violence is escalating. It was
put to me by one woman recently that "clients who used to twist and pinch me
are now punching and slapping my private parts. What used to be aggression
is now force." It used to be about sex but now it's just about domination
and submission. The same woman said, "They're only happy when I'm hurt."
Prostitution, most notably the prostituting of young girls, has already
moved indoors. Condos, apartments and small-style flats are already
established, hiding away the most vulnerable, isolating women and children
from getting any help in finding the resources they need. These are perfect
conditions for brainwashing. Girls and women are trained by their captors to
"fear me and trust no one else, especially government authorities, like
The Nordic model is the best model I've seen, and it has a good track
record in countries that have introduced it, by reducing the demand and
giving dignity and hope to a prostituted woman. It also addresses public
education to point out to society, johns and potential johns included, that
prostitution is violence against women and it's wrong. Over time, this
public understanding does reduce the stigma on the prostituted. The Nordic
model also addresses systemic oppressions that make certain persons more
vulnerable to being coerced into prostitution — lack of income supports and
safe housing, unaddressed childhood sexual abuse, abuse, et cetera. It works
toward societal changes to help address the root causes of prostitution.
Bill C-36 moves us in the right direction, and I very much compliment the
government on that. I wish it was there when I was in the industry. It does
prohibit the purchase of sex, recognizing that johns create the demand. This
is key, because men won't stop buying on their own, and demand is the fuel
for the industry.
Bill C-36 also denounces and prohibits procurement of persons for the
purposes of prostitution and the development of commercial interests that
exploit the prostituted, which clearly criminalizes the actions of pimps and
other profiteers, as well as advertisers of services — again, positive
measures to help protect prostituted persons.
However, Bill C-36 has one fatal flaw, and it must be changed if we are
to protect prostituted women. We simply must not criminalize the prostituted
in any respect. By doing so, we are giving the profiteers the tool they need
to keep the women where they want them for fear of criminal sanctions. Bill
C-36 claims to be serious about protecting women who are prostituted. I
think it is, but we know locations where prostitution happens should not be
a factor. As a matter of fact, by specifying prohibited areas we are
targeting the most vulnerable women, that is, women prostituted on the
street, very often Aboriginal and racialized women, or those deemed less
sellable by indoor profiteers. This part of the bill will make the already
more vulnerable even more at risk. This runs contrary to the purpose of the
bill, and it must be removed from it.
A final weakness in Bill C-36 is the failure to address adequate social
supports for women. A small fund of $20 million is mentioned in the bill,
and it is not dedicated to any specific type of service. This is certainly
inadequate to cover the needs of women who reach out for help or the number
of women who will find freedom when Bill C-36 is implemented. The amount
must be significantly increased and dedicated to support services at the
community level, particularly services where women survivors play an active
role in the creation and delivery of programs.
Sexual exploitation is a human rights crisis for women and for girls.
Prostitution and trafficking restrict women's freedoms and citizenship
rights. If women are treated as commodities, they are consigned to
second-class citizenship. No country can be a true democracy if its citizens
can legally be treated as commodities, nor can a true democracy flourish
when we criminalize women who are oppressed into this lifestyle. I sincerely
urge you to make every effort to ensure that criminalization of the
prostituted in all respects is removed from the bill.
Megan Walker, Executive Director, London Abused Women's Centre:
The London Abused Women's Centre has been serving the needs of abused women
in London and Middlesex County for the last 37 years. Last year we served
the needs of approximately 3,300 women, of whom 10 per cent of those women
We strongly support Bill C-36, with the exception of the provision that
Casandra just mentioned. We do not support the criminalization of
prostituted women. We believe that Bill C-36 is a commitment to the future
of equality rights and protection for women and girls, and what it is
actually is an investment in shifting the culture for future generations,
teaching girls that they have real options in their lives as they grow into
women, and teaching boys that purchasing women is taboo, and in fact
purchasing women is sexual exploitation. We want boys to grow up learning
that women are valued and appreciated and strong and resilient and have the
same human rights as men do.
Contrary to what you have heard over the past day and what you may hear
over the next day and this afternoon, the Nordic and Swedish model is
working in Sweden and Norway. We can all be critical of methodologies and
research — and in fact we all do use that when we don't like what we've read
— but the fact is the Swedish model works. Independent evaluations and
police reports show that the law is changing the attitudes of those buying
sex, particularly of young men. We also know that the law has reduced
demand, and it is estimated that the overall prostitution industry has
decreased by approximately 25 per cent.
Law enforcement has been able to get information from arrested sex buyers
regarding instances of trafficking and exploitation. There has been no
increase in violence against people in prostitution. Those who are in
prostitution report feeling less stigma and being more willing to report
abuse and to seek assistance. Prostituted women feel much safer reporting to
the police because they are no longer under any threat by johns and pimps
that they too will be arrested.
On the other hand, you're going to be hearing a lot about the New Zealand
model or the model in Germany or elsewhere where prostitution is either
decriminalized or legalized. What we know from those countries is that there
has been no protection for women in prostitution. It has not reduced
trafficking, exploitation or organized crime. The Prime Minister of New
Zealand admitted that decriminalizing prostitution hadn't resulted in a
reduction in street prostitution, or children or minors being exploited in
prostitution. In fact, what she said was, "I think it's marginally
successful, if at all."
In Germany, where brothels were legalized, a 2007 government review found
that the law has "not been able to make actual, measurable improvements to
prostitutes' social protection" and "hardly any measurable, positive impact
has been observed" regarding their working conditions. The government also
stated there are "no viable indications that the law has reduced crime."
In the Netherlands, politicians in Amsterdam have been steadily reducing
the red-light district in recognition that their prostitution sector has
rampant trafficking and exploitation and that organized crime is widespread
in both the legal and a surrounding, flourishing illegal sector. Governments
in all of these countries are considering enacting a tightening of their
The London Abused Women's Centre's premise is very simple: Freedom from
prostitution is a basic human right. There can be no misunderstanding.
Freedom from prostitution is a basic human right.
At its core, prostitution is the exploitation of girls and women.
You have been hearing, very loudly, I'm sure, from those who are vocal in
their opposition to Bill C-36. I am here today speaking on behalf of the
rights of those whose voices are not represented, those who are forgotten by
policy- makers and the general public.
Those I work with have limited or no access to mainstream media. They are
too busy working to survive. It is their human rights that need protecting.
It has always been the human rights of those who are forgotten, those who
are silenced, that need protecting. Human rights are not granted exclusively
to those who have the loudest voice in the room.
While human rights should be basic to everyone, it is the forgotten and
silenced with no voice to fight for equality, dignity and the staples of
human rights who must be listened to through the voices of survivors and
Prostitution is not a victimless crime. It is not a shared intimate
sexual interaction. It is an act of men's violence against women and girls.
It shifts the scales of unequal power heavily in favour of pimps, johns and
If you listen carefully enough, you will hear the cries for help from
survivors and those prostituted women who will not be represented before you
The Chair: Thank you all for your presentations. We'll begin the
questions with the deputy chair of the committee, Senator Baker.
Senator Baker: We thank the witnesses for their excellent
I notice a continuity in the presentations of Ms. Walker and Ms. Diamond
in that they both emphasized that prostitutes should not be criminalized;
the criminalization of prostitutes should be removed from this legislation,
if it is in fact there.
I'm going to ask the other witnesses, specifically Mr. Russomanno, and
there's a reason why I'm going to ask him this question. I noticed that in
two recent cases this year he litigated the question of conspiracy to commit
an unlawful act, in two different cases.
Now, the minister and the department said to this committee,
emphatically, yesterday, that for the first time in Canadian history, the
act of prostitution will be unlawful, will be illegal. But we are exempting
from prosecution, in three sections of this bill, those who commit the act
of prostitution, but it is still unlawful. It is illegal, but there's an
exemption in three section of this bill, no other sections.
This is remarkable in that the Supreme Court of Canada has said
repeatedly up to this point that the act of prostitution is not unlawful. It
may be de facto unlawful, but not de jure unlawful in law. We now have the
department and the government saying this makes the act of prostitution
The question that's on everybody's mind, I think, is this: What about all
of the other sections of the Criminal Code that deal with unlawful acts? For
example, conspiracy to commit an unlawful act; you've litigated that.
Conspiracy has a meaning of an agreement to carry out an unlawful act, or an
agreement to carry out a legal act unlawfully. I think that's the
Given that the emphasis now before this committee, which wasn't before
the House of Commons committee — this is a new direction of the government
here — that the act is unlawful and illegal, doesn't that open up the
prostitute to charges under other sections of the Criminal Code dealing with
unlawful acts? That's my question. I know it's unfair to ask you this
question, but you've litigated conspiracy recently, so what do you think?
Mr. Russomanno: Senator Baker, thank you. It's not an unfair
question. I think it's a good point that you raise, that the discussion
that's been heard with respect to immunity for the sellers of sex does not
necessarily include immunity from prosecution for conspiracy. It would
potentially fall within the definition of conspiracy. Where there is an
agreement to carry out a common criminal act and steps were taken to carry
out that agreement, there may very well be liability for conspiracy. Even
short of steps being taken to carry it out, conspiracy involves just the
agreement. So it can be at a very infant stage. An agreement itself is the
It strikes me that it is a very good point that you raise, that it may
actually create that liability, and I suppose a counter-argument might be
that we would rely on prosecutorial discretion, police discretion. I'm not
always a huge fan of leaving it up to those exercises of discretion because
you have a wide variety when you have that exercise of police discretion. It
is not necessarily uniformly dealt with across the board, but it would
potentially raise that issue, yes.
Senator Baker: Immunity from prosecution, we see it in the code,
we see in the Interpretation Act and so on, but immunity from prosecution,
as it pertains to the police or the Crown, when they commit an act that they
are immune from prosecution for committing, it is not considered to be an
unlawful act. So we have got the distinction here now, the government saying
that this is an unlawful illegal act, and, as I recall, section 464 of the
Criminal Code says that if you are convicted of conspiracy to commit an
unlawful act, and if it's indictable, you suffer the same consequences as
the person you conspired with in that act.
In provincial law, you have in Ontario an act called Remedies for
Organized Crime and Other Unlawful Activities Act, 2001. The Supreme Court
of Canada recently in a case called Chatterjee said that the province
can pursue under this act any unlawful act committed under the Criminal Code
or any other act in a provincial setting. In other words, you can collect
the proceeds, you can seize somebody's home, you can do all this sort of
thing. Within the confines of this act where they have immunity from section
286.2 and 286.4 and 286.1, it is your opinion that that does not extend to
other acts of federal jurisdiction or of provincial jurisdiction but only to
an immunity under those specific sections?
Mr. Russomanno: That's correct. A differentiation has been made
between immunity for something that is unlawful versus something being
lawful. I think it has been clearly stated that the selling of sex is
unlawful, so based on that interpretation, I would agree with you.
Senator Baker: Thank you.
Senator Batters: Thank you all for coming here today and helping
us with this bill.
Ms. Diamond, thank you very much for your powerful presentation today.
You said two things in your opening statement which I thought were very
powerful and very sad: The fact that you came to hate being a woman when you
were engaged as a prostitute earlier in your life, and the fact that "hope"
is a swear word in the industry. Both those things I find so tremendously
sad, and I'm hopeful that C-36, as you said, is a good step forward, and you
said you were wishing you had had that tool to help you when you were in
You also had a very powerful presentation to the House of Commons
Standing Committee on Justice and Human Rights, and at that presentation,
you were quoted as saying "Prostitution in Canada today is organized by
criminals. . . . In my 10 years of experience, I have never not worked for
organized crime and gangs."
I am wondering whether you can tell us a little bit more about that,
because sometimes there is the portrayal that that's not a very major part
of this whole issue.
Ms. Diamond: Thank you for your question. In fact, I never did not
work for organized crime in the time I was engaged in the industry.
Organized criminals really do operate the indoor facilities. If not
organized crime groups, some of the smaller ones, thug groups, and other
smaller factions do operate on smaller levels. They operate because of the
amount of profit in the industry that they can make off of one, two, three,
four, five girls.
I worked for facilities that worked with upwards of 50 and 60 women, so
just imagine the profit that those facilities were making. Because of the
lucrative nature of the industry, you can't keep them away.
Other than that, certainly the conditions when you are working for
organized crime groups are less than beneficial. For example, if your boss
simply says to you, "My friend's in the other room; do whatever he asks,"
those are the conditions you are working under. If you go down to another
parlour or facility down the road and the rules there are no condoms for
fellatio, guess what, no condoms for fellatio. The rules are now made by
these groups versus the rules that you are making here.
Senator Batters: Rules made by criminals, basically.
Ms. Diamond: That's right. That's what we live under.
Senator Batters: Related to that point, you also said at the House
of Commons committee:
Some people talk about prostitution as employment as, if it were a
job like any other. It isn't. Legitimate employment has laws against
sexual harassment and discrimination. It does not allow hiring a woman
based solely on her breast size or hair colour or weight. Our labour
laws have in place standards that protect us from such practices because
they are discriminatory, unhealthy, and misaligned with society's views
I would add to that. Yesterday we heard from the Asian women's coalition
who indicated that race is often a big part of the employment conditions
that prostitutes find themselves under too. Can you please tell us more
about that particular part?
Ms. Diamond: Sure. Something that has always struck me was that in
10 years working in the industry I worked with one Aboriginal woman, one.
They don't make it indoors because they're not commodifiable, if that's a
word. They're not as sellable as a 16- or 17-year-old white girl, so they
don't make it indoors. By the way, the one Aboriginal woman I did work with
was arrested and sent to jail, so I didn't work with her for long.
Again, these groups are trying to create a stable, and the stable is
going to include firstly young white women, and then you will see there. So
there's no job, if you ask me, if you are being hired or not being hired
because of race, creed, colour or because of what you are willing to do,
right? Even in countries that did legalize, only 44, I think the number was,
women actually went and registered. What benefits are you going to get
without stigma? There isn't anything that would cause me as a woman who used
to work in the industry to go and register.
Senator Batters: Ms. Walker, thank you very much for your
presentation as well. You indicated this morning that from your significant
research and experience in dealing with abused women and the important work
that you do, prostituted women feel much safer reporting to police under the
type of structure that we will have under Bill C-36, and that is directly
contrary to what Mr. Russomanno contended earlier today. Can you please give
us a little bit more information about that?
Ms. Walker: My friend next to me has identified that he believes
that the law is actually built under a sort of social system here and that
there's no place for the government, I understand, to become involved with
That's exactly the same argument that was presented in the 1980s when we
tried to advocate for protection for women who were being raped by their
husbands. It's actually the same argument that was put forward when we
advocated for mandatory charge policies with respect to domestic violence
legislation, and the reality is that every time we seem to advocate for
something that will protect women, it is presented by opposing views as,
"Oh, this is a moral issue or a social issue," and in fact, it is not. Women
have the right to the same protection as men.
And what we know is that when legislation was passed that made it illegal
for a man to rape his wife, women did come forward to the police. When we
passed legislation as a society that made it illegal for a man to assault
his wife and mandatory charge policies, women knew then that they didn't
have to face the fear of their partner going to the Crown attorney and
saying, "I want the charges dropped; really, it didn't happen that way." It
was taken out of their hands and it made her safer.
We believe in this case, based on our own experiences with prostituted
women but also our research from the Nordic countries, that women feel safer
going to the police in prostitution. Right now they're under threat all the
time from a bad john: "Well, you can't report me because you'll be arrested
now too." So once we remove that barrier, women do feel safer reporting.
Senator Batters: Thank you for that important historical
Senator Jaffer: Thank you to all of you. They have been very
informative presentations from all of you.
I will start with Mr. Russomanno, if I may. You've talked about risk and
what was covered in the Bedford case under section 7. You just
touched on it because of time limitations, so could you expand what you
meant by issues of risk?
Mr. Russomanno: Under the section 7 analysis in Bedford,
the court focuses on a comparison of the legislative objective with the
effects. In Bedford, the legislative objectives identified for the
three prostitution-related provisions, with the exception of the pimping
piece, were really related to reducing nuisance neighbourhood disruption.
When the court compared that legislative objective with the effect, which
was to contribute to harm, the court focused on a principle of fundamental
justice called gross disproportionality, where legislative objective isn't
lofty compared to the effect, which is to harm sex workers.
Now that we have loftier legislative objectives, as stated in the
preamble, my view is — and I'm not the only one who holds this view — that
rather than gross disproportionality, which I think is still in play, we
have the principle of arbitrariness. Arbitrariness is where the legislative
objective is in no way achieved by the effects of the legislation.
To clarify the CLA's position, it's not that there should be no laws
concerning sex work. Again, I feel like this is another straw man being
raised. I'm not advocating that there be no laws but that the criminal law
is a very blunt tool. That doesn't mean the government has no place in
regulating sex work, so I don't want to be taken to mean that. It's the use
of the criminal law as a blunt tool.
In my view, when you criminalize even one side of the sex trade,
criminals will still be involved. It's a common-sense principle here that
when aspects of sex work or the sex trade are criminalized, criminal
organizations and criminals will still be involved in the sex trade.
With respect to the section 7 analysis, it really is a shift from gross
disproportionality to arbitrariness. I would recommend people review the
paper by Professors Hughes, Pearlston and MacDonnell on that topic, which
clearly sets out the issues with arbitrariness.
Senator Jaffer: Ms. Yanful, I was concerned with what you said, if
you could expand on it. You touched on the issue of screening on how to
assess for the person, how to assess the screening. The bigger issue for me
was the threat of conviction. Can you expand on what you mean by that?
Ms. Yanful: First, the screening provisions as they are, Senator
Jaffer, don't allow for the sex workers to engage in a conversation with
clients. Right now, yes, they can advertise under the advertising
provisions, but the communication coming back from clients, potential
clients, maybe third parties who are enabling that transaction to occur, is
now illegal. That runs the risk of being contrary with the principles and
the ideas that the court in Bedford stated are necessary.
If the risk can be reduced by effective screening, by communication, then
how does the government think that these sections, as they are, will stand
up to constitutional scrutiny? It goes against that to say that a woman or a
man cannot then engage in some kind of screening, some kind of two-way
communication with their client in order to assess their risk.
Senator Jaffer: I have a question that was more specific to you,
Ms. Diamond and Ms. Walker, because of your life experience. It concerns how
much time you have to assess during the screening.
The other question I wanted both of you to address is the issue of
criminalizing if you are in a public place, for advertising, all the other
things that the seller can still be criminalized for. I would like you to
touch on what effect that would have, please.
Ms. Diamond: Firstly, if you are in a massage parlour there's no
screening whatsoever. You will be lined up and paraded in front of a client.
If that client selects you, you will go in and serve that client. There's no
Regarding being on the street, we know that there is no guarantee of
safety. You can have a regular client and an act of violence can be visited
upon you after you have seen this person three, four, five times. That's for
There's no less pain if you get kicked in the head if you are in a
parlour, if you are in an alley or a hotel. It still hurts. The same amount
of pain is there.
We have to recognize that prostitution is only a stop on the continuum of
violence against women. If we have to determine whether a john is going to
be violent even if he's a regular, there's no way we can do that. Violence
perpetrated against a woman is not her fault. We have to refuse to make a
woman responsible for taking on a bad date. It is not her fault if she gets
a beating because a client was violent towards her. Whether you screen or
not, it does not remove violence from being visited upon that woman.
Ms. Walker: I can answer that quickly. First, around holding women
accountable for soliciting for the purpose of prostitution, we would not
support that. We believe that would interfere with her ability to call the
police if she needed protection.
Second, with respect to screening, I would just say how much time do you
need to screen? What is enough time? I work with women who will date men and
on the honeymoon experience violence for the first time. Sometimes, she's
had two years to screen him to see if he's the appropriate man for her, to
see if he's not violent and has no indication of violence whatsoever, yet on
her honeymoon he abuses her for the first time.
Is there actually any amount of screening time? Is thirty minutes enough,
an hour, three hours? What's enough time to screen a john to see if he's
going to be safe or not?
Senator Plett: Ms. Walker, you just answered one of my questions
about the screening. Thank you very much; it was very direct.
Ms. Diamond, last night I received hundreds — and I'm still getting them
today — of angry tweets from sex workers and escort services calling me
misogynistic and dehumanizing because of comments I made, and the
sensationalism by certain journalists about comments I made, about the
government's goal to do away with prostitution. I was not talking about not
wanting to keep prostitutes safe. I was talking about doing away with
Some of those tweeting me were posting photos of women and young girls.
Young girls, and they were advertising with the following hash tags: jail
bait, teens, tweens, incest, dumb sluts, incest life.
Is this the world of prostitution? Do you believe the government's goal
of abolishing prostitution to the greatest extent possible is dehumanizing
and misogynistic? Could you comment on that, please?
Ms. Diamond: That's naming it for what it is. It is, again,
violence against women, but I have higher hopes for the men of my country. I
don't believe all men want to purchase sex or be violent against a woman.
There needs to be a climate change and a perception change. But I wouldn't
call you misogynistic for wanting to eliminate prostitution.
Senator Plett: Thank you.
Ms. Diamond: But eliminating it and reducing it are two different
questions. Can we eliminate it? In my lifetime I would love to see it. I'm
not sure that's something we can do so quickly. Can we reduce it? Yes.
I'm not a harm reductionist. There's no doubt about that. I would prefer
to see prostitution abolished, but by all means let's start by eliminating
it. Let's start by starting to reduce the demand and really reduce the
ability to purchase Canadian citizens.
Senator Plett: As any crime we will never eliminate it, but we
have to continue to constantly try to eliminate it and reduce it.
Ms. Walker, let me just ask you further to that, do you believe that this
bill succeeds in accomplishing what criminal law is supposed to accomplish
in protecting our most vulnerable? If so, how do you believe it does that?
Ms. Walker: Yes, I do. To me, criminal law is about shifting
culture and shifting the views in society. We have legislation that holds
murderers accountable. We know that we still have murderers, but we know
that it teaches society that it is wrong to murder.
For me, it isn't about one prong. The law is one issue; then we have
public awareness and support systems for victims. It takes all three to
change a culture and to shift the thinking. If you just have a law that says
we're going to hold johns criminally responsible, decriminalize women and
then walk away, it is not going to be successful. However, if you invest in
resources and public awareness campaigns, as they have done in Sweden, that
show that buying women is violence against women, sexual exploitation,
dehumanizing and degradation towards women, then you have support systems
for women on a voluntary basis. That allows them to come in and have
intensive supports, such as family reintegration, long-term counselling,
post-secondary and secondary school education, job training, substance abuse
rehab, and things like that, that are woman-centred and woman-directed. We
can help shift this for future generations. That is the key component.
That's the most exciting part of this.
We do not want girls to grow up thinking the only decision they have,
because of their circumstances in life, is prostitution. We do not want
little boys growing up thinking it is okay to buy women.
Senator Joyal: My colleague Senator Baker touched upon the point I
wanted to stress when he made his first remark. From all the witnesses we
heard yesterday, I noticed that those who express reservations about Bill
C-36, as much as those who support it, want to have section 213(1) removed,
criminalization of prostitutes when it is exercised either close to schools
or close to a place where there are children. This morning, I heard the same
thing from Ms. Walker, from you and from Ms. Yanful, also. Yesterday we
heard from the Elizabeth Fry Society, The Evangelical Fellowship of Canada
and the Canadian HIV/AIDS Legal Network. Most of the witnesses requested an
amendment to this section. We certainly listened carefully to what you said
this morning in relation to that.
My question is to Mr. Russomanno, Mr. Hamilton or Ms. Yanful. This bill,
as the title states, is an answer to Bedford. Bedford is a
breach of section 7 of the Charter. This bill had breach of section 2 of the
Charter, freedom of expression.
As lawyers, we all know that when the court is faced with a breach of a
Charter section, there is what we call the Oakes test. That is, there
are three questions that the court asks to come to a conclusion of whether
the breach is reasonable in a free and democratic society. That's the sense
of what is the Charter test.
Could you address those sections of the bill where you feel there is a
breach of the Charter and where you apply the Oakes test? In other
words, what is the objective of the legislation in relation to those
sections? Is it proportionate to the proposal and, on the whole, is it
acceptable in a free and democratic society?
This is what any one of you would have to plead if you had to go to court
on some of the sections of the bill that are alleged to be unconstitutional.
We heard the minister say yesterday that the objective of this bill is to
fight victimization. For the minister, the government, any prostitute is a
victim. Whatever status or level of victimization, the starting point is
The government pretends it is going to be successful in court to test the
court on this basis. Could you be more precise on what you intend on the
constitutionality of the sections of the bill you feel will not survive the
The Chair: I will caution you: You won't have the time you would
have before the courts, so try to summarize.
Mr. Russomanno: I will start with the section 1 issue. Never
before in our jurisprudence has a breach of section 7 been found to satisfy
the Oakes test. Never before has a breach of section 7 been found to
be a reasonable limit. It makes sense because, paraphrasing the wording of
section 7, a deprivation of life, liberty and security of the person not in
accordance with the principles of fundamental justice would almost, by
definition, not be a reasonable limit in a free and democratic society.
Senator Baker: In a section 7 argument only.
Mr. Russomanno: Correct.
Senator Joyal: That's the only section of the Charter to admit
Mr. Russomanno: Yes, whereas section 2(b) is a section
where, not routinely but often, violations of it have been found to be
reasonable limits. The section 2(b) issue is not addressed at length
in Bedford. There's an earlier case from 1990 called the Prostitution
Reference in which the Supreme Court considered section 2(b), but it
was only when viewing the communication provisions as commercial speech. The
Supreme Court in Bedford has clearly expanded the kind of a speech
that is being contemplated in communication provisions as not just
commercial speech but also self- preservation. That would make the section 1
analysis more difficult to get through.
That's how I would limit my comments.
Mr. Hamilton: I second what Mr. Russomanno has said to Senator
Joyal. In relation to section 2(b), we know that the advertising
provision, based on the earlier Prostitution Reference, is a prima facie
violation of section 2(b). The issue then becomes what we call in the
profession non-core speech, though, so the issue then becomes would it be
saved by section 1.
Where this debate is so important in this committee, as it was in the
house committee — and what I fear — is that if there are these
constitutional violations, it may take some time for that evidentiary record
that may be necessary for the section 1 analysis to play out.
The court, as we know, is not in a particularly good position to evaluate
all of the social scientific evidence. Clearly, that is what happened in
Bedford; there's a 25,000-page record. That is what Parliament is for.
Parliament, in both this committee and the house committee, has had the
benefit of dozens of witnesses who can come forward and provide that sort of
input that would also be essential to a section 1 analysis.
Beyond the advertising provision, the communicating provision, I think,
would not survive a section 7 challenge for the very reason, as Ms. Yanful
identified, that it is essentially a replication of what was in the old law.
The issue that the Supreme Court clearly identified was that when a sex
worker is not able to communicate with a potential john, there is not that
opportunity to determine whether or not it's going to be a safe transaction.
The new law doesn't address that, and for that reason, I think that would
be seen as a section 7 violation. What remains to be seen, as Mr. Russomanno
said, is whether this would be one of the first cases, if not the first
case, where a section 7 violation is saved under section 1.
The Chair: I have to stop you there. We will move on to Senator
Senator Frum: Mr. Russomanno, would you agree that Ms. Diamond and
Ms. Walker have been very eloquent about the inherent degradation and
exploitation that exists in prostitution?
In your approach, you see a non-criminal approach and prefer it to be
treated as a social issue. How does decriminalizing prostitution address the
social issues related to degradation, exploitation, commodification of
Mr. Russomanno: Decriminalization does not in and of itself deal
with the social issues. It would be the regulation one would expect would
fill that void. My view centres on the criminal law and the fact that
criminal law contributes to the very harms that the legislation says it aims
to do away with.
The laws that would be in place, the legal regulation that would be in
place would be there to address those social ills, but not the criminal law.
Decriminalization in and of itself would be a way of reducing that harm.
Ms. Walker: If I could highlight something for the Senate's
consideration, it is that legalized prostitution does exist in Germany. I
would really disagree with what my friend is saying. We're not really
friends because we've only met today, but I appreciate his comments and
respect his views.
Legalized prostitution does exist in Germany, and as a result of
prostitution-related activities, there have been 22 murders of prostituted
women in Germany, all related to interactions between the prostituted woman
and the john — 22. That's in legalized Germany.
In Sweden, where they have the Nordic model, which is what we're
advocating for here, there have been zero murders. Not one woman has been
murdered in prostitution-related activities.
So I beg to differ. I believe that the Nordic model and the law do
contribute to a safer working condition for women in prostitution. When you
criminalize johns and pimps and decriminalize women in prostitution, it
allows women to report criminal activity and assaults to the police. There
are public awareness campaigns showing people what this is, which is sexual
exploitation of women and degradation of women, and it allows women who
choose to exit and get out.
So I really dispute what Mr. Russomanno is saying, and I do not believe
it's based on fact.
Mr. Russomanno: I need to respond to that. I only got a B minus in
statistics, but I'm pretty sure comparing Germany and the decriminalization
model to the Nordic model without any control factors does not really
satisfy a rigorous statistical analysis. I'll just leave it at that.
There are studies that show different figures. There's a study from the
Gender & Sexual Health Initiative out of UBC involving the Vancouver Police
Department which says that focusing on johns only hasn't actually reduced
any harm. That would, at least on its face, suggest a control group, which
is a far more useful way of analyzing the issue than comparing Germany to
Ms. Walker: Well, if we're going to debate studies, it was a study
of 30 prostituted women. Let's not go back and forth around the studies.
This is not a study.
Mr. Russomanno: You started it.
Ms. Walker: This is actual facts of women who were murdered.
Senator Frum: I think Ms. Diamond had a comment, and then I'm
Ms. Diamond: I know that we're here talking about implementing a
healthy social system regarding prostitution, and Germany is now sitting
down and trying to legislate gangbangs as well as flat-rate brothels.
Ms. Walker: Also, as I mentioned earlier when Mr. Russomanno said
that the criminal element would probably decrease under a decriminalization
model, we only need, as I said earlier, to look to Amsterdam, where
organized crime is flourishing under that decriminalization model.
Senator McIntyre: Thank you all for your presentations. My
question has to do with municipal bylaws.
As you know, some municipalities have made bylaws regulating massage
parlours and escort agencies. Can you tell us more about such bylaws? How do
they currently operate within the legal framework? How will Bill C-36 affect
The reason I'm asking you this question is because in reviewing the
documentation on file, I note that some municipal authorities are saying two
key areas require clarification. The two areas would be a definition of what
constitutes sexual services and an enhanced definition of what constitutes a
But then again, I was listening to Justice officials who have made it
clear that the case law provides sufficient guidance to law enforcement and
the judiciary with regard to what constitutes sexual services and a public
place. Could I have your thoughts on this, please?
Mr. Russomanno: With respect to the bylaws, I don't know that I'm
necessarily in the best position to really answer that question. I
appreciate that I've got a bit of a target on my face today, but I'll have
to defer to someone who is more familiar with the bylaw issue.
Mr. Hamilton: If I may jump in on that point, it raises a second
constitutional issue. The focus here has been on the Charter issue. There's
a second issue, which is the division of powers and how this new legislation
— specifically the legislative objectives — might play out going forward.
It would appear, given the broad sweep of the legislative objective as in
this bill, that what the federal government has intended with this bill is
to occupy the field of the regulation of prostitution and not leave anything
up to the provinces. The provinces, in turn, delegate to the municipalities,
which in some respects makes some sense in terms of having a coherent and
comprehensive legislative scheme. But I certainly think, when you look at
this bill and the objectives of it, there does appear to be a manifest
intention to regulate prostitution in a comprehensive way.
Ms. Walker: Could I comment on this? I'm a former member of the
London city council. When we were debating at the time about where massage
parlours and strip clubs would be located in the city, it was a huge
community issue and it was very much based on nuisance. The community was
outraged: We don't want these things in our backyards. It was exactly the
opposite of what Bedford is trying to accomplish.
Not only that, but many members of council at the time were trying to
establish body rub locations in industrial areas. These were areas that were
very dark, with no transit lines, where women would be forced to engage,
sometimes very late at night, with no access back to their homes.
I think passing this along to city councillors, where they are influenced
by the lobby of their neighbours in their wards, is a really poor decision,
where they have no opportunity to directly communicate with those involved
in prostitution and where they're more influenced by their constituents than
they are by the best interests of women.
Senator Dagenais: My question is for Ms. Walker. I listened to
your arguments and your presentation. The question is quite simple: given
everything that is available now on websites, the hypersexualization of
adolescents, and the messages being delivered by certain singers and
rappers, how do you think social intervention can change the behaviour of
young men, and how should we approach this issue?
Ms. Walker: It's a very difficult climate for children today. We
know that the average age a boy will watch pornography is 11. We know that
even those parents who are diligent with their children and the Internet in
this era of technology cannot control their children's access to technology
in their rooms because so many children have cellphones where they can
easily access pornography.
So we continue to advocate that gender equality studies and public
awareness campaigns begin in the schools at a very young age, even as young
as Grade 1, because we want boys to grow up learning what being masculine
really means. What that means is not being macho; it means being sensitive,
caring and respectful towards girls.
We see so much cyberviolence right now, where young girls are committing
suicide because of sexting images across the country and around the world.
There are anti-bullying coalitions set up and anti-bullying initiatives in
the schools, and we believe that naming the problem is important, and sexual
cyber harassment needs to be named as such. It's not bullying. It's
harassment and it's sexual assault through the Internet. We're in the
schools and designing programs. Right now, our agency is doing a huge
research project on this very issue, which will be distributed across the
country. But it's a major issue, as are all things related to gender
equality for women. They are baby steps, and we are very much an
anti-pornography agency because we do see the link between sexualized
violence and pornography.
The women we work with in prostitution tell us that what they were
exposed to 10 years ago in prostitution is very different from what they are
exposed to now. Ten years ago, it was really about the act of intercourse,
and now it's very much about fulfilling a man's pornographic fantasy, very
debasing, violent sex. It's not just what you see on the Internet; it's
what's on television. If you watch an episode of "Criminal Minds," for
instance, which is often about the rape and violent murder of women, it's
rampant. You can't even drive down the street without seeing a billboard
that's selling a car or a product by sexualizing a woman.
Senator McInnis: Thank you. My question is for Mr. Russomanno. I
don't look at you as a target; you are a fellow lawyer. My question is more
I'm relatively new on this committee, and as you can appreciate, when
amendments to the Criminal Code or other legislation come through, they come
before this committee. That's principally what it's for.
I see that you are here representing a criminal lawyers' association, so
I take it that you've canvassed your membership. I'd like to know how many
members you have. Have you spoken to them? Have you gotten varying degrees
of information? Lawyers can be flexible. There are all kinds of opinions.
For my purpose, as we go forward in the future, when the Criminal
Lawyers' Association appears, or any other organization, I'd like to know if
you, in fact, speak for all of them.
Mr. Russomanno: I am here on behalf of the Criminal Lawyers'
Association. I think it's my twelfth time in the committee, and the first
time I gave an opening spiel about how many members we have and what a
wonderful organization it is, which it is. But that was a few years ago, so
at this point I wouldn't be able to give you the number of members in our
organization. I can certainly provide that to you after this hearing.
In terms of our decision-making process, we have a subcommittee which
deals with these issues, and I do canvass views with the subcommittee. We
have a reporting system to our executive where we report the outcomes.
They're fully aware of what goes on in committee, so I do represent the
Senator McInnis: Approximately how many members would you have?
Mr. Russomanno: I would say in the hundreds, several hundred. It's
an Ontario-based organization. But I can't really be more helpful than that;
I am sorry.
Senator McInnis: Ms. Diamond, we know that the Criminal Code
provisions that were struck down in the Bedford case by the Supreme
Court rarely resulted in the arrest, investigation or prosecution of johns,
pimps or those who profit from prostitution. Bill C-36 brings a new
direction in addressing the violence and exploitation of the prostitute.
It seems to me there is a key role here to play in setting the standards
for police and prosecutors across Canada to ensure enforcement of all of the
laws that have been now criminalized, and particularly the male violence
against women laws. I refer here to an article which says that too often
these cases are diverted because conviction, thus the judges do not have an
opportunity to evaluate the evidence and impose the consequences.
What do we have to do now, if this law passes, to get this entrenched in
our justice system?
Ms. Diamond: Thank you. Great question. We do need to continue
police education, not that they're not aware. In my area and other areas, we
have very good policing, but it's not across the country. So we just need to
make it more consistent.
In my 10 years, I have never seen a man arrested. As a matter of fact,
during my time in the industry, what used to come around for us was called
the "morality squad," so I was immoral. Those are the police forces that
used to come around at the time.
Firstly, we need prevention, and it needs to be a two-pronged approach.
The ideal time for intervention is before women are lured or coerced into
prostitution. Most enter at an early age. We need better means of
identifying and supporting people early to eliminate those vulnerabilities.
We also must have government leadership in building social supports that
deal with poverty, abuse, homelessness, addiction and the bridge between
exiting child care services.
We have to equalize the imbalance. We have to engage boys and girls in
respect between themselves and each other; anti-violence, anti-bullying; sex
education other than pornography, by the way, that teaches the difference
between sex and violence; john campaigns and john awareness campaigns and
service for those men who wish to stop purchasing women's bodies for sex.
I think that if we don't go Nordic model, we're actually going to be
stopping the forward progress that the police have been making. A lot of
police jurisdictions haven't been charging the women, for about the last
five to seven years is what I'm hearing. Whether they're arresting the men
or not, I'm not too sure about that, but there were john schools in place,
leading me to believe that they were.
We do need to continue to criminalize those who are commodifying the
women of our country.
We know human trafficking is a cross-border crime. If we do implement the
Nordic-type law, we would make Canada an international ally in the fight
against human trafficking. I'd like to be a part of that.
The Chair: We have a little more than 10 minutes for a second
round. I'll begin with Senator Baker.
Senator Baker: I'm not forgetting that we heard testimony
yesterday about the schools set up for johns, and we heard testimony that a
person has lectured to many hundreds of johns, and how worthwhile those john
schools were. We heard that testimony yesterday before the committee and a
request to have them extended to areas where they don't have john schools.
In this legislation, Senator McIntyre and I were discussing, prior to the
meeting, whether or not a review should be made of this legislation after
five years or two years or what would be a good period of time to review the
legislation. What, in your estimation, would be the period of time that it
would take for a constitutional challenge to this new legislation to be
settled? In other words, it would be heard by the lower court, the courts of
appeal, and ultimately, the Supreme Court of Canada.
I'm asking this question of criminal defence lawyers, with the notation
that Bedford was under the civil law and not the criminal law, and
that the application in British Columbia of similar nature was made under
the civil rules of procedure and not the criminal rules, and that not very
often would you go under the civil rules.
I imagine, Mr. Russomanno, you may on occasion utilize the civil rules of
procedure, but they carry with them a financial penalty if you lose.
Therefore, your client has to have a lot of money in his or her pocket in
order to pursue a civil matter.
Given the fact that these matters have been judged under the civil rules
of procedure and not the criminal rules, the question is why have we not
seen them challenged under the criminal rules up to the Supreme Court of
Canada, and how long would be an appropriate time for us to put in the
legislation for a review of this act, taking into consideration the period
of time that you'd need to settle the matter before the Supreme Court of
Mr. Russomanno: The Bedford case was a constitutional
challenge as opposed to having arisen from criminal charges, and that's my
understanding, which is why the Rules of Civil Procedure applied, and
Professor Young brought that challenge under those rules because the
applicants were bringing a constitutional challenge; they were not
criminally charged, at least at that point in time.
In terms of the timeline for it to arise through the criminal rules and
for it to work its way up through the criminal courts, whether it would
start in the lower court in Ontario, the Ontario Court of Justice, the
Superior Court to the Ontario Court of Appeal, to the Supreme Court of
Canada, would take several years, I would think three years or more, for it
to find its way up to the Supreme Court of Canada that way.
Mr. Hamilton: I concur with what Mr. Russomanno said. There is a
procedure if you're charged under one of these new provisions to seek a
declaration under section 52 of the Charter that the law is of no force and
effect because it's inconsistent with the Charter. Even though the criminal
process would ostensibly move faster than the civil process, it's going to
be several years before you get up to the Supreme Court of Canada. The
evidence buttressing that claim, though, you would seem to need to produce a
similar sort of evidentiary record that was produced in Bedford. I
can only imagine that that 25,000-page record took a significant period of
time. I think it was 2010 when Justice Himel's decision was released, but I
think 2007, as I understood some of the evidence, as to when they actually
started to gather that record. It was about a seven-year period.
What also remains to be seen, though, in this particular case we have new
legislation where it's going to take some time. A number of background
studies and so forth that had already been prepared were brought to bear on
the application. In this case, we have new legislation that would only just
be going into effect, where it's going to take some time to even gather that
background, social scientific data. It seems like it could take a decade or
more for someone to bring a cogent claim under section 52 of the Charter
that these laws are of no force and effect because they're overbroad,
they're arbitrary, et cetera. It would be a significant period of time, in
Senator Batters: Ms. Walker, it's very helpful that in this
pre-study we have the testimony that many of you gave before House of
Commons that we can review, because you only have a short time for an
opening statement here, and it gives us a bit more of a chance to see what
some of the arguments in addition to your brief have been.
I note that when you testified before the House of Commons committee, you
said you would also like to see all parties invest in equality rights for
women. In fact, you said:
That's the very reason we are all here advocating for the passage of
Bill C-36 . . . because we believe it will promote equality rights for
When I saw that, I thought that's a very important point because that's a
very important Charter right, equality rights. I would like to get your
additional thoughts on that.
Ms. Walker: Exactly. I'm not a lawyer. I'm not a constitutional
expert, but I think nobody here today has been speaking about section 15,
and section 15 does afford women equality rights. Right now, when women are
forced to sell their bodies, that's a really telling statement. Do women
really have equality rights in Canada? It speaks to my opening statement
about human rights. As a society and as parliamentarians and as senators, we
need to take this step forward for the sake of future generations of girls.
We have a long way to go. It's on a piece of paper that women are equal,
and we're not. When I see women coming into my office who are being abused
by their partners and who are being prostituted, not by choice, it's a
decision made because they have no choice. Those are the majority. You're
hearing from women who are saying it's a choice; it's a profession. They do
not represent the majority. The women I work with have made a decision
because of no choice, and no woman should have to go out to the streets or
into a brothel or a body rub parlour or strip club and degrade herself
because of no choice.
Senator Jaffer: I want to ask Ms. Diamond again. I think we ran
out of time last time. Section 213(1), you want that to be amended? You do
not want the seller of the service to be criminalized. Can you expand on
what your thinking is on that?
Ms. Diamond: There is only one way to make a safe industry, and
that is to criminalize the demand and to eliminate the demand. It's
dangerous for women to work under any conditions in the industry. That is
the only way out for women, out of the sex trade. She can call for help. She
can align herself with other agencies and organizations, maybe like Megan
Walker's, where she could have some assistance. It recognizes constrained
choice. It does recognize that women would choose to do something else had
they another option.
Criminalizing the demand is so important. That was one of the barriers to
my exiting. I exited by myself. My exit strategy was unfortunately becoming
unuseful or aging out. That is an exit strategy I wish on no woman.
Senator Plett: Do you have statistics as to what the average age
is of a girl or young woman entering sex trade work? Ms. Walker, is there an
average age of when women come to your abused women shelter?
Ms. Diamond: I have read statistics between the ages of 13 and 14
as an entry age into the industry. After a year of working with a woman's
organization in my area as a case manager for them, I was working directly
with trafficked women, with women who were 14 and 15 years of age.
Ms. Walker: We don't use statistics because they're very
controversial. What we believe is that at any age it's not appropriate and
that it's sexual exploitation. We see girls as young as 12 who are being
prostituted and we see women as old as 55 or 60.
Senator Joyal: Considering your comment, Mr. Hamilton, that it
might take up to 10 years before we reach a conclusion on the
constitutionality of the section of the bill relating to section 7 of the
Charter, which is life and security of the person, would it not be advisable
for the government to make a reference to the Supreme Court on the sections
of the bill that would be an alleged infringement of section 7, so that,
considering it's the life of the prostitute that is at stake here and the
security of their person, it would be a way to come around this issue
quicker than waiting 10 years?
Mr. Hamilton: I think it would be advisable. It's clear in
Bedford. As the Chief Justice pointedly remarked in her judgment, these
are people's lives that are at stake. She cites a number of examples. A
reference of that sort I think would certainly be advisable to get the
court's input. The court, having recently considered Bedford, could
examine the new legislation in that light, certainly.
The Chair: I'm sure you could continue. We appreciate your
appearance here today and your responses to the questions. They were very
helpful to us. Thank you all again.
For our next group of witnesses, committee, please welcome from Sextrade
101 Bridget Perrier, Co-Founder, First Nations Educator. Ms. Falle will join
us shortly, I am led to believe. Representing the Northern Women's
Connection, we have Larissa Crack, Founder, Director; and Cheryl Link,
Assistant Director. And from the Concertation des luttes contre
l'exploitation sexuelle, we have Diane Matte, Coordinator.
Welcome all. Ms. Perrier, do you wish to be the first to give your
Bridget Perrier, Co-Founder, First Nations Educator, Sextrade 101:
I would first like to recognize the traditional treaty of the Algonquin
First Nations and unceded territory which we are standing upon. My name is
Wasa Quay. My English name is Bridget Perrier. Natasha and I both founded
Sextrade 101. Sextrade 101 represents women and girls across Canada who are
current and former sex trade survivors.
I was born in Thunder Bay, Ontario, and placed up for adoption. I was
adopted by a good family who tried to raise me the best way possible, but as
I got older, the effects of colonialism, intergenerational trauma and
childhood sexual abuse made me the perfect candidate for prostitution.
I serviced many johns who felt privileged to use and abuse me, and when
they were satisfied, they discarded me like I was used Kleenex. I performed
sex acts that were dehumanizing and degrading from the age of 12. No little
girl should ever have to endure the physical trauma that the johns did to
Still to this day, I suffer from the effects. I cannot have a child
naturally because of trauma to my cervix, and I suffer chronic pelvic pain.
These johns did things to me that they couldn't or wouldn't do to their
spouses or intimate partners. I have psychological trauma that runs deep in
my soul. I cannot gather the words to describe it, but, to this day, I still
sleep with the lights on and I'm hyper vigilant when it comes to having to
deal with men.
I am angry and I feel cheated that my innocence and childhood were taken
from me and that I was labeled for being a bad little girl. What did I do to
deserve such pain and torture?
I was traded in legal establishments, on street corners and in strip
clubs. I even had a few trips across the Great Lakes servicing shipmen at
the age of 13. At the age of 14, I was held captive for a period of 43 hours
and raped repeatedly by a john who I thought I had known. I had previously
serviced him many times before this ordeal. He was a predator, waiting for
me to let down my guard and, when it was, he pounced. He raped me, causing
me to have 15 stitches inside my vaginal wall. He ripped out my extensions
which caused me to have huge bald spots and sores. He broke my ribs and
strangled me until I would pass out, then revive me and start it all over
again. During this time, he would tell me how he was going to kill me and
dismember me, and that he had done this before.
This man was charged and his sentence was only two years, yet my sentence
was a lifetime of memory and tears. This was not just an isolated incident.
Another haunting john memory is of an assistant Crown attorney in Thunder
Bay who was charged with obtaining sexual services from underage girls. I
was one of the girls, and I was put on trial for this Crown's bad behaviour.
To this day when I go home, back to my community, I'm constantly reminded
of him because there's a school named after him. His victims were branded as
the problem. I have never disclosed that I was Native to a john for fear of
disappearing or being hurt. I have watched many of my sisters disappear or
get murdered. Those women and girls have had their lives erased by a john's
No screening tools would stop rape or murder. If there was such a tool,
why are women still being raped, murdered or missing?
Robert Pickton hunted his victims from drop-in shelters, and he had
access to some of his victims from front-line support agencies. He also
hunted throughout the Downtown Eastside and was known to be a friend,
boyfriend and a john to some of his victims where he would lure them in with
drug parties and then kill them.
I would like to read a quote from my stepdaughter, Angel Wolfe, one of
the 98 orphans left behind as a result of their mothers' murders by Robert
Pickton in Coquitlam, B.C.:
I believe that Bill C-36 will save vulnerable women like my mom. I'm
sickened that my mom's death has been used to legalize such indignity
I'm also sickened by the term "the Pickton bill". It's insulting and
a slap in the face to the 98 orphans, and the organizations and the
pro-lobby movement should be really ashamed for speaking on behalf of
the families who lost their loved ones.
I blame prostitution and addiction for my mother's death, and on
behalf of the 98 orphans, we do not want our mothers' deaths to be the
reason prostitution is legitimized.
Larissa Crack, Founder, Director, Northern Women's Connection: I
would like to start by acknowledging the Algonquin peoples, the traditional
caretakers of the land which we are standing on today.
I am a survivor of sex trafficking and the founder of the Northern
Women's Connection. I am joined today by Cheryl Link, and we are in full
support of Bill C-36, which works to offer solutions to women and at the
same time targets johns, pimps and any other party that would benefit from
the exploitation of vulnerable women, children or men.
I was 14 years old the first time I sold my body for someone else's
profit. I thought I was in love with a man in his thirties, and I believed
he loved me back. This illusion was quickly shattered the first time I said
no. I was 14 years old when I was tied to a bed for days on end while grown
men paid to rape me. The money that men paid in order to spend time with my
body gave men the illusion that they had the right to do with me as they
found fit. This included, but wasn't limited to, being cut, burnt with
cigarettes and having foreign objects used as sexual tools.
I still carry physical scars to show for some of these abuses today.
During this time I also experienced intravenous drug use for the first time,
as I was often drugged in order to give the paying customer a more pleasant
I understand that Canada currently has laws that could have and should
have protected me from this situation, but they didn't. Something more is
needed in order to stop trafficking from continuing to be an invisible crime
in Canada, and I believe that this comes in the form of Bill C-36. This bill
recognizes the power and balance between those profiting and purchasing
sexual acts and those who are often exploited in order to provide it. A
man's right to purchase sex ends with my right to not be exploited.
When I was 15, broken and completely dependent on drugs to numb the
trauma that had and was still occurring, I was trafficked through legal
establishments: bachelor parties, discreet strip club customers and back
rooms were my prison. No one questioned my undeveloped body or showed any
interest in whether I was there by choice or not. The bottom line was that
they had paid for me and, therefore, I had become their property.
If Bill C-36 does not pass, the decriminalization of prostitution will be
the result. This will in effect create more legal establishments for illegal
activity to occur in. Bill C-36 is the first thing to happen in Canada that
truly sees the sex trade for what it is: violence against women. If Bill
C-36 does not pass into Canadian legislation, more and more women and
children will effectively disappear in plain sight.
At 16, my body and appearance having been diminished from abuse and drug
use, I was discarded onto the streets of Vancouver's notorious east end.
Here the blurred line of choice occurred for me, like it does for many other
women. I was no longer forcefully kept within prostitution, but instead
continued to do the only thing I knew how: feed my addiction and low
At 17 years old, a few of the issues I faced that resulted from
prostitution included mental health, poverty, homelessness, addiction and
trauma. These resulting issues cannot become an acceptable outcome of any
job that Canadian citizens or the government should support. This is the
outcome of violence and oppression.
There are no other Canadian "jobs" that require the amount of support and
services that those exiting prostitution require in order to combat the
issues that resulted due to the required work.
Bill C-36 overall is a great start to change the way Canadians view
prostitution, yet it continues to criminalize women who are found to be near
a daycare, school or park. We find this concerning due to its contradictory
nature with the rest of the bill that recognizes prostitution to be
inherently violent, primarily against women.
When I was 16 years old, I vividly remember falling asleep in a
playground tunnel slide, later to be picked up in the same area by a john. I
agree, looking back, it wasn't the best of locations, but at the time it was
a safe space where I could sleep without fear of abuse. Bill C-36, if
present at that time, could have criminalized me and countless other women
who ultimately are doing their best to survive in an exploitative
environment and will use any and all means in order to do so.
Cheryl Link, Assistant Director, Northern Women's Connection: As
assistant director of the Northern Women's Connection, I work directly with
women who have faced similar situations as Larissa and Bridget. I have also
lived with women who were being sold, and I was almost sold myself.
My own story is in our brief that we have submitted, but one of the women
that I work with also wanted to share her support of Bill C-36 by offering
the following statement:
I was prostituted through an illegal escort agency. It was quite
clear that I was expected to have sex with whomever purchased me. If I
refused or did not perform to the agency's expectations I was threatened
with having naked photos of myself, showing my face and my real name
plastered on their Internet website.
During my time as an escort I was raped, beaten, drugged and
harassed. I was not allowed to call the police and was told the agency
would deal with the situation as protecting their profit line was more
important than protecting me. Their way of handling the situation was to
send a different girl to the client the next time they called; however,
at times the agency did return me to the abusive clients. Although
escort agencies are legal establishments, that doesn't stop the abuse
that was forced upon myself and other women from happening. If Bill C-36
is not passed, we are telling our country's men, women and children that
it is acceptable to be beaten, raped and used for sexual gratification
as a means for profit.
Ms. Crack: Our collective stories are being told in hopes of
creating a greater understanding of the harms that are caused as a direct
result of prostitution and how Bill C-36 can help to offer education,
rehabilitation and prevention so that one day the traumatic stories of our
sisters can stop.
Diane Matte, Coordinator, Concertation des luttes contre
l'exploitation sexuelle: I would also like to acknowledge the aboriginal
territory we are on. In addition, I want to highlight the courage of the
women who are with me, and how honoured I am to come here and testify with
them; they are women who have experienced in their own body — and continue
to do so — what it means to be exploited sexually, when that is accepted by
I am from an organization called the Concertation des luttes contre
l'exploitation sexuelle (LaCLES). We have been in existence for about 10
years now, and we are in daily contact with women who have been or are in
prostitution and live with the consequences. There are multiple
consequences. In our brief, you will find some of the information we
gathered in a needs analysis we performed in 2014. In the course of this
study, we met with 109 women in 6 cities in Quebec, and spoke with them; 45
per cent of these women are still working in the sex industry. The other
women had already left it. A large proportion of them, 20 per cent, were
The data from our study confirms what you have heard, what the justice
committee heard in the month of July, and what the Women's Coalition for the
Abolition of Prostitution went to say to the Ontario Court of Appeal and to
the Supreme Court of Canada, which was that prostitution is first and
foremost a practice that is based on inequality and a form of violence
against women. We could even add that seeing that violence is still taboo,
even now in 2014. That is what is disturbing and worrisome, and it is
important that it be recognized in the context of the analysis of Bill C-36.
The courts were not under the legal obligation to take inequality into
account when reviewing the Bedford case. It is the political duty of
the Canadian Parliament and the Canadian Senate, however, to place equality
at the core of a bill in response to the Supreme Court decision. In our
opinion, Bill C-36 does that. We pay tribute to your political courage, and
we hope that all of the Canadian political parties will in a non-partisan
way subscribe to the principle that it is unacceptable in 2014 that women of
any age be somehow led to enter this industry, be it through poverty, the
sexual violence they experienced in their lives, by a boyfriend, a
neighbour, or other people who are involved in the sex trade.
I think it is more than time for Canada to take a clear position and stop
being hypocritical. In fact, since the advent of the Canadian Criminal Code,
prostitution has never been looked at through the women's rights lens.
Prostitution has continued to be approached as a question of nuisance and
public disorder. The impact of that perspective on prostitution means that,
still in 2014, women are the ones who are criminalized on the whole for
having been sexually exploited. We have to change the way in which
prostitution is perceived and dealt with.
Legally, we have to accept that prostitution constitutes a form of
violence against women, and recognize that we must make a collective,
societal choice. We must make prostitution an institution of the past.
Currently, as we speak, for thousands of young women, unfortunately, it has
become incredibly trivial to join the sex trade. It is easy; tonight, any
young girl or young woman can call a number and become an escort, go to a
massage parlour, become a dancer in a bar, and join the sex trade. Neither
the police, society, social services, nor, unfortunately, community
organizations or the educational system will be there to speak up; no one is
going to be there to tell that young woman that there may be other choices,
perhaps other things to consider rather than the idea of selling sexual
services as a way of validating oneself. Many young women are at that point.
They are under the impression that this selling of sexual services gives
them power over their sexuality, power over their lives.
That ridiculous idea has to be eradicated, especially when Canada lays
claim to the title of standard-bearer for the equality of men and women
throughout the world. It would be wrong to accept the Supreme Court judgment
such as it is, since, in the name of the safety of women, it is sending the
following message to the sex industry: "Go ahead, you can do whatever you
like when you want to; we find this acceptable."
For the women I work with on a daily basis, the thousands of women we are
in contact with, that is unacceptable.
We want Bill C-36 to go forward, but that it be amended to prevent any
form of criminalization of women. No woman should be criminalized for having
been sexually exploited. And that is what we are asking you to do. Thank
Natasha Falle, Founder, Sextrade 101: I shared a lot of my
personal story with the standing committee, so today I would like to focus
more on screening, but I will tell you that I am a traffic survivor of 12
I was a child raised by a stepfather who was a police officer responsible
for arresting prostituted women, drug dealers and pimps. My family had some
problems, and at the time I was meeting people who had been prostituted who
really glamorized what prostitution was about and minimized the violence.
Eventually, after couch surfing from place to place, I felt that this was
something I needed to do for my survival at 14 years old.
I am also the founder of Sextrade 101, along with my partner here,
Bridget Perrier. We formed because we were hearing a lot from people in the
sex work industry but we weren't hearing from survivors. We don't hear from
survivors because when we leave this industry we leave brutalized and so
broken from it that we don't want to have anything to do with it. While we
work with 100, 150 prostituted women and survivors a year, many of those
women who want to exit cannot do so overnight. It's not a 24-hour process.
Even if you put housing and those sorts of things in place, for some exiting
could take a year. For others it could take five years and others it can
happen overnight. We represent those women who do want to leave, and we've
come up with a stat of 97 per cent of the people we support want out.
I would like to thank the Senate committee for not using the term "sex
workers" and instead using "prostitution" and "prostituted women." I
appreciate that because sex trade survivors have expressed that they don't
appreciate those words — "sex" and "work" — being put together. Prostitution
is not work. In all its forms it is violence against mostly women.
During the Justice Committee hearings, Bill C-36 was referred to as the
"Pickton model," after the serial killer Robert Pickton. And those of us who
have worked so hard to provide support to prostituted women and their family
members are also called rescuers and are accused of being part of a rescue
industry. This is offensive to survivors who did a lot of personal work to
overcome the traumas of prostitution.
It's our understanding that Bedford, for example, not only practices BDSM
on males but females as well. There are many of us who would like to know
what her screening process was in terms of women who show up at her dungeon,
how many of these women were trafficked victims she was hired to beat,
perhaps unknowingly, into submission, or took a chunk of their wages to sell
sex at her bawdy house before they returned back to their traffickers. Is
there such a screening process that could prevent trafficked women from
being sold in these bawdy houses?
There is no amount of time that a woman could appropriately screen for a
bad john. For example, we know that one out of four women in Canada will be
abused by her partner. Those women are not usually abused on their first
date, second date or third date. In fact, during that time the relationship
could be described as healthy and happy. Sometimes the first assault doesn't
happen until the honeymoon or the woman's pregnancy. She has had more than
enough time to do screening.
Another example would be in a bar, when you meet somebody and interact,
sometimes over the course of several hours. A woman may feel comfortable
leaving her drink unattended on the table to go to the bathroom, only to
find out the next morning, when she wakes up in his home naked, having been
raped by a man whom she screened for several hours in the bar, that he
spiked her drink with a date rape drug.
The reality is that all women are potential victims of violence, for no
reason other than their gender. No amount of screening will change that.
Only women's equality rights will change the way women are viewed in
prostitution. That is why we must pass Bill C-36, because it recognizes the
inherent danger in prostitution and that prostitution is the sexual
exploitation of women and disproportionately impacts women.
I'm available to answer questions on the issue of domestic sex
trafficking, advertisement, HIV and AIDS and to further expand on the
screening of johns.
Senator Baker: A special thank you to the presenters here today.
You've done an excellent job in describing exactly what you wanted to say to
the people of Canada through this committee.
You all said, I believe, that you support Bill C-36, yet you all said
that there's a section of the bill that you want amended.
Now, Ms. Crack explained it perfectly, because she gave an example of why
you all feel that way. That's what we've heard from practically every
witness. I don't know of any witness who knows a lot about this subject, or
who was directly involved in the subject itself in the past, who has not
advocated that we must amend this bill to remove the section that
criminalizes those persons who are described as being prostitutes.
The possibility arose this morning, during the questioning of lawyers,
that perhaps this bill could lead to other charges against those who are
committing the act of prostitution.
Let me ask you this question: Do you really support Bill C-36, with this
provision in it that criminalizes the act of prostitution — that is, the
section you referred to — in a public place, the description of the public
place, and so on, Ms. Crack? Or do you support the bill if that section is
removed, namely, the criminalization of women?
Ms. Crack: I would like to see an amendment made where the
criminalization is taken out altogether, but, if the bill stays as is, I
would still support the bill as 99 per cent of the bill meets our needs of
criminalizing the johns and the people who abuse women, and it recognizes
the violence that occurs in prostitution.
The other part that's important in this is ensuring that resources and
money are put into the education and training of our police officers and our
Crown attorneys and having them understand it. I think that will remove the
possibility, as the previous panel said, of other charges being incurred.
That's where, if we go into that extra funding, it's important that we
allocate money toward education and making sure those types of things aren't
Senator Baker: You think the training of the police officers and
the Crown attorneys would then lead them to perhaps not lay the other
charges, like conspiracy to commit an unlawful act, and so on?
Ms. Crack: Exactly.
Senator Baker: That is, to say to them, "Here's the purpose of
this bill. Therefore, you should remain with the purpose of this bill and
not go outside of it to charge them with other charges." Is that what you're
Ms. Crack: That's exactly what I'm saying.
Senator Baker: Any other comments?
Ms. Link: I have a small thing to add. We live in a fairly small
town, where schools are pretty much everywhere. We have a couple that are
right in our downtown core, where you can find a lot of these women and men
who are involved. As a regular woman who isn't involved in this sort of
thing, walking down the street — being downtown in that area — it's easy for
a man to proposition you right in front of a school. You don't have control
over who says what to you, and where. Should it come into effect that we are
criminalizing these women and men for being in front of these areas, it's
really left to somebody's perception. She can't control that so-and-so came
up to her and propositioned her in front of a school, but someone might say,
"Conspiracy; right there."
That answers both of those questions with regard to conspiracy, as well
as being in one of those areas. Daycares are huge. They're all over parks.
You can't even walk in front of one without a man being nearby, and you
don't know if that man will proposition you.
Senator Baker: Ms. Perrier, do you agree?
Ms. Perrier: I agree with it. I don't agree with criminalizing
prostituted women at all, but I do agree with the bill because I see the
effects in my community of intergenerational prostitution, where it's mom,
grandma, now child. In my community, our girls are young. We're seeing them
as young as 10 years old. Just the other week, my niece was asked how much
outside of my house. I live in East Beaches. My daughter was propositioned
by a john with an APTN news media interviewing her in regard to her mother's
death. A john walked right up to her at a vigil and asked her how much — no
regard. Johns are savvy. They don't care. We need to protect vulnerable
children. I see my children as being extra vulnerable because of my prior
involvement as a former prostituted child and woman.
Senator Baker: But you all want an amendment made to the bill to
remove this section?
Ms. Matte: Yes; we absolutely do. At the same time, as Larissa was
saying, if 99 per cent of the law is satisfying to us in the change of
paradigm that it makes in Canadian society, then if that amendment stays we
won't throw out the baby with the bathwater. We're looking at the importance
of having a clear message to Canadian society, to the provinces, to the
education ministries, to the justice ministries and to the police that says
we're no longer looking at women as criminals or as being responsible for
the situation they're in and are looking at who are the perpetrators, namely
the johns and the pimps.
First, if we think of the ultimate vote in the House of Commons, we
really hope, as I said in my presentation, for a non-partisan approach to
this. We need the Liberal government and the NDP party, to stop looking at
Senator Baker: Soon to be.
Ms. Link: — as a political issue where you can win votes on
Senator Baker: Good for you.
Ms. Link: We need to look at prostitution for what it is: violence
against women. I would hope that every political party here would say we
need to stop violence against women. We have to count on the police as well,
and the provinces.
If you adopt this bill, it doesn't stop there. Repression is not the only
answer; it's only part of the answer. It's not even useful to use it all the
time with the police. It's important to make sure, in the different parts of
Canada, that the police use their heads and their judgment to decide whether
or not to apply the law. I've heard, through different Canadian police
associations here, that criminalizing women is not an option anymore. We
have to make it something that's viewed the same way everywhere in Canada
and not let people decide how they will treat women in prostitution.
Senator Batters: Thank you very much. I want to start out by
saying that I wholeheartedly agree with something that Ms. Matte stated. She
stated that she feels privileged to be here with these women who have the
courage to speak out; so do I. Thank you for telling your stories, which are
powerful and heartfelt. We can't forget that these are not easy stories to
tell. They're very difficult. They're very personal. I'm sure that it
probably triggers a lot of emotions, taking you back to places in your past
that you would much rather leave behind. But you're here to try to make life
better for Canadians, and we thank you for that.
Also, Ms. Matte stated that the Senate of Canada has a political duty to
study equality in the context of this issue, and I very much agree. That's
actually an important part of the mandate of the Senate, to take equality
and minority rights into consideration. I think that's an important part of
this issue, as I was talking about with a previous panellist. It leads me to
a question for Ms. Falle.
When you testified before the House of Commons committee, you said:
It is a basic human right for women and children to be free from
being sold to men. No child or woman should have to resort to accepting
violence for their survival, under any circumstance. It is crucial to
note that all but one of the experiential affiants in this Bedford
case entered prostitution as children. The other affiant admitted to
Given that, when you hear these people who advocate legalizing
prostitution, saying that this would be better for women's human rights,
what is your response to that?
Ms. Falle: There was a time when I believed the same thing, when I
first managed to flee the man who had trafficked me and leave this lifestyle
of prostitution. I was led to believe that I was there by choice, and I had
to believe I was there by choice to survive doing what I was doing. I had
sold sex both independently and forced, but it was never a choice. Whether I
entered as an adult or as a child, I didn't enter fully informed of what I
was going into. I think when you're in that life, you can't think about
tomorrow. You can't think that far ahead. You can only think about your
survival for each day.
People who are involved are going to think of ways that they can stay
involved because they can't think outside of that box. I believe that
survivors are fully rounded on the topic. We have lived on both sides. I
think that's why it's so important for us to listen to survivors and what we
are saying because we have overcome that abuse, much like when you ask a
battered woman, "Do you love your abuser? Do you want to leave?" She will
tell you, "No, I love him and I want to stay." I equate that with
prostitution and people who are involved in it.
Senator Batters: That's a very good analogy. I'm not sure if you
were here yesterday when Minister MacKay was testifying, but he referenced
your story in his testimony. I think you should be very proud of yourself,
that your story has that kind of impact, for the federal Minister of Justice
to refer to it. That's because you've been courageous enough to share it.
Ms. Crack, when you were before the Justice and Human Rights Committee,
you mentioned that you did not appreciate the fact that many who are talking
about this issue said that what you went through could have been prevented
if you had a bodyguard or the privilege of working inside. You were quoted
I had a bodyguard, who made sure that I was always making an income,
who enforced the rules that I was expected to live by, which often
included ensuring I serviced violent and abusive men. I also often
worked inside, which prevented social workers and police from even
knowing that I was there and which gave a quiet, undisturbed place for
me to get violated, abused, and raped without anyone ever knowing that
it was happening.
I assume, then, given that quote, that you agree that prostitution is an
inherently dangerous activity and no matter what, it will always be that
way. That's why it's our aspirational goal at the end of the day to end it
or reduce it to the greatest extent possible. Could comment on that, please.
Ms. Crack: I mentioned it today, too, about how I was trafficked
through legal establishments. I think anything that goes towards the
legalization and decriminalization, all it does is profit the people who are
going to make money, the people who are the abusers, and it takes even more
of the power away from the women. Bill C-36 turns the power back to women.
It allows women to report.
I really don't believe that indoor locations are any safer than outdoor
locations. Most indoor locations are run by organized crime. The front is
different than what is actually happening behind the scenes. Those are the
things that the average Canadian person isn't seeing or understanding. When
you're brought into back rooms and hidden, with many men going into those
back rooms knowingly, you start realizing how you're hidden and how you
don't have a voice, and there is no way to escape. I don't believe that
indoor prostitution is in any way safer.
Senator Jaffer: I also want to thank all of you for your
presentations. They were very gut-wrenching. My first question is to Ms.
Ms. Perrier, I come from Vancouver, and for many years I have worked with
women and young girls on the streets, especially from the Aboriginal
community. Sadly, in Vancouver we really have a problem. During the
Olympics, we were able to stop women from being trafficked into our city,
with the help of our government. The most horrifying thing was to see very
young girls being brought from the reserves into our city. It's nothing that
we can be proud of.
I don't think we have put enough emphasis on the terrible situation that
exists for young Aboriginal girls. I can only speak of my province. I want
to hear from you as to what can be done. In both your experiences, what can
Ms. Perrier: What can be done? I think Canada is starting to
recognize the damage that was done throughout the residential schools. I
think, though, that we really need to have a clear understanding about
Aboriginal issues, the systemic poverty, the colonialism and the
intergenerational trauma that runs rampant in the communities.
My concern for my community is these big industry-like mines that are
going up in these desolate areas. This is where our girls are majorly
When I worked in prostitution, I never, ever said I was an Aboriginal
woman because I saw what the industry did to Aboriginal women. They would
have sex parties where I was from, and they would pull all the little Native
girls in and pulverize them. It was horrible what I saw.
Even now, we're seeing pimps coming up from the United States and making
huge websites on the backs of Aboriginal teenage girls, and nobody does
anything. It even says on the website how he has bartered with them,
basically bartered, and given them fake goods for sex acts, which he
actually intertwined with drugs. Nobody did anything. Some of the girls, you
could visibly see their hips weren't even developed. One of them was
pregnant, and he had her naked, pregnant body on the Web. No one cared to
This is what happens with Aboriginal girls and women. We don't want to
report rape. We get blamed for everything. What can be done is the police
really need to have in-depth training. We need more Aboriginal officers. We
need that on the front line, especially when it comes to vulnerable
Aboriginal women and girls.
Senator Jaffer: Thank you very much. Ms. Crack and Ms. Link and
anyone else, if you wish to answer, I work with International Justice
Mission in Kolkata, India. It has been a real lesson for me to see that when
women who have been abused and prostituted are rescued — don't take that in
an offensive way — when they're given help, it's not a one- or two-year
process. That's why I'm really concerned about us not thinking there are
quick solutions. What I've learned working with these women is that it's
five, six and for life, with the flashbacks and everything.
If we are looking at programs, what kind of programs? You have been
working with women. You have experience. You can help us. We're looking at
putting in programs. What kind of programs? This is a very long-term way of
looking at this. It's not a short-term solution In India, they call it
aftercare. I don't know what word you use, but aftercare takes some time and
then helps the women get proper jobs so they're not snared again.
Ms. Crack: I think you hit it on the nail. It's a very long
process. I've been out of prostitution for 13 years now, and I still have
moments. Coming from the lower east end of Vancouver, I have known some of
the women who were abducted and murdered by Robert Pickton, and I have
moments where I will be driving down the road and have the realization hit
me: Why am I still alive today? Why was it not me who was picked up?
So it's still an ongoing thing, even 13 years later. I was lucky enough
to receive my help in Calgary, where they have an amazing program called
Servants Anonymous that looks at a holistic model, life skills programming,
employment training and education. They have funds available to help women
go back to school. They allow women to keep their children with them and
teach them how to become parents so you can stop the intergenerational
trauma and abuses that happen.
I still am in contact with people from Servants because they are such a
big support. A lot of women don't have the family network, and it's
important to rebuild that home base and create centres that offer the whole
thing. It might sound really silly, but the first time I ever cooked a
turkey, I was able to call my counsellor from Servants and ask how to do
that. Being trafficked at 14, those are simple things that I never knew how
to do. For those life skills, it needs to be an integrative process that
looks at the whole situation and not just one area of it. There's mental
health, poverty and addictions, and we need to look at programming that
takes it all into consideration.
Senator Frum: First of all, I also want to express my total
admiration and respect for you all being here today and sharing these
difficult stories. They're very hard to hear, but they need to be on the
record. Thank you for your courage. Thank you, Ms. Matte, for the great work
that you do as well.
I want to follow up on Senator Baker's questioning about the one
provision in the bill you don't like. I certainly understand your reasons
and explanations for it. I do want to understand. Ms. Perrier, you touched
on is this already.
We understand that the intent behind this provision that is meant to
punish both parties if a sex act has been committed in a school or any place
where persons under the age of 18 can reasonably be expected to be present
is to keep prostitution away from the sight of children.
Based on your life experience, do you see value in that idea? What is
trying to be accomplished is keeping it out of sight and, I suppose, by not
exposing children to it, to protect children from it. How does that relate
to your stories? Is it an important idea?
Ms. Falle: I do see some benefit in that. However, I also
recognize that women who are not in a position to take care of themselves
are not in a position to be able to take care of the community's children.
With that said, for women who are being trafficked or who are in pimping
relationships, the dynamics vary. These are relationships, and not all
relationships are the same. The level of control also varies while the abuse
tactics are the same.
There are some women who do have a say in where they are sold. When we
send this message that sex will not be tolerated being sold around schools
and children, those women who may have more freedom than others or who may
have earned more status in that stable of pimp violence will also be less
likely to do so because they know there could be a consequence.
I do think there need to be consequences for victims who also commit
crimes, because we know that also goes with this lifestyle.
Ms. Matte: I would like to add a comment about the provision which
states that a person may not purchase sexual services close to a school, a
daycare or any location where children are present.
We have to get at the clients. If the clients are not there, the women
won't be there either. We don't have to criminalize women and remove them
from the proximity of schools. We have to criminalize those who want to buy
their services. The women will go where the men are; that is a basic tenet.
They want their money so they go where the men are.
And so we have to criminalize the clients and also offer other solutions
to women since, indeed, the women are also there because they need money or
because they are under the influence of a pimp, a network or a drug pusher
who tells them that they have to go out and find money. If they want their
drug, they are obliged to go and give a client oral sex.
The women will go where the men are. I do not understand the rationale
behind the minister's statement to the justice committee that appear to me
to be another weak reason that has to be confronted. The idea according to
which, thanks to the provision, the police could help women because this
would give them a way to approach women is totally ridiculous; it makes no
sense whatsoever. The women already perceive the police as being the enemy
for the most part.
By giving the police greater power to arrest them, we will not be
creating a better relationship of trust. On the contrary, it is by saying to
them, "This police officer no longer has the right to arrest you, but he has
the social duty to ensure that you have access to services when you want to
go out, and it is his duty to be a bridge."
But the bill seems to give police a role they have never had and should
never have. Police officers are not social workers. They are there to say,
"Is there something that could support you, help you?" The vast majority of
women will ask for help when the right time comes in their lives, but they
have to know who to turn to for that help.
If a police officer has the power to arrest you, you are not going to go
to that person to ask for help. That seems to be against —
Senator Frum: So you're saying that you see it more as an
aggravating factor for the male client, and it should not apply to women,
but it is an aggravating factor. It is worse when it's done around children.
Do you agree with that?
Ms. Matte: From the men part?
Senator Frum: Yes.
Ms. Matte: For me, it's bad everywhere. Right now, the situation
for some women, as Natasha was saying, is that they're not in a position to
say, "Is what I'm doing affecting the community or the children around it?"
For me, the target has to be how to stop men from buying women, how to help
women not to enter prostitution or how to exit, and criminalizing them is an
obstacle to exiting. In no way can it be an approach to offer help.
Senator Joyal: Ms. Matte, the phenomenon of prostitution must not
be looked at in isolation, but perceived in the whole context of the
relationships between men and women.
In the Blais-Pelletier case in 1999, the Supreme Court deemed that lap
dancing, when it involves sexual contact — and I do not think I have to
describe the contact in question for people to understand it — was
acceptable within the limits of the Criminal Code as interpreted in 1999.
Does the Bedford decision, which attempts to protect the woman or
the person practising prostitution, not in a certain way lead to a paradigm
change? Is there a paradigm shift in what society tolerates as acceptable —
the role of women in lap dancing — which is a sexual activity, that has to
be acknowledged — and the objective pursued by the bill, that of not
criminalizing persons involved in prostitution?
How do you align the objective of social equality, which you are
pursuing, and these prior decisions of the Supreme Court and other Canadian
courts recognizing that partner-swapping clubs are also quite acceptable in
our society, whereas they are in a way a legal form of prostitution?
Ms. Matte: That example is interesting, because we have observed
that, since the 1999 decision, the sexual services offered in bars by
dancers have proliferated since they were legalized. In our experience with
the women who come to LaCLES, the women who work in dance bars as we speak
have in fact lost ground because now they have to pay the owners of the bar
to go and dance; so they have a debt right off the bat when they go in to
work. They are forced to do so because the message conveyed by the Supreme
Court decision in 1999 was that, if these things transpire between two
consenting adults in such a place, there is no problem. All of the women
will tell you that the men are always trying to go beyond the limits, once
they are in the cubicle. The women are subjected to all sorts of harassment,
touching and aggression. The men want more, and society has intimated that
indeed they can go beyond the limits.
This is a good negative example that needs to be examined. If the Supreme
Court decision were to apply as it was handed down last December, throughout
Canada we will have a sex trade where even more men will think to
themselves: "This is okay and socially acceptable, and so Friday afternoon
or Friday night or whenever I feel like it, I can go to a massage parlour or
dance bar, organize parties, have independent escorts come over, the sky is
the limit!" There is no limit. To our way of thinking, the Supreme Court of
Canada has the same shortcomings we have as a society. They are human beings
just like us, and we feel that the Supreme Court decided to examine
prostitution first and foremost, as the Bedford case required, as an issue
of individual rights. As a society we think that the Supreme Court may have
the right to do that, to examine individual rights. However, as a Parliament
and as a society, we have the obligation to deal with the phenomenon of
prostitution as a matter of collective rights, and we must put some spokes
in the wheels of the sex industry, rather than handing it the opportunity to
make even more money on a silver platter.
As concerns the visible manifestations of the sex industry on the island
of Montreal and in the vicinity, we counted 300 so-called erotic massage
parlours for a population that is not that. . . They manage to use all of
the loopholes to obtain permits, and sometimes even call themselves health
centres, alternative health centres, massage therapy parlours, whereas
everyone knows full well — and you can see it on their websites — that they
are selling sexual services. This is sexual exploitation because women must
at minimum go beyond their own limits even if they want to impose them, or
make less money if they do not accept to do so, because the woman next door
is going to do it.
There is a climate wherein we are beginning to accept that this industry
is legitimate. There are even some people who are trying to make us believe
that women will be more independent and more able to get out of poverty
thanks to the sex trade. Come on now! The sex trade is there to make money,
and as a society, we are there to determine if the existence of that
industry helps or not —
The Chair: You've used up Senator Joyal's time with your response.
We have around 25 minutes left, so if you can, as best as possible — I know
sometimes it's challenging — tighten up your responses so everyone can have
an opportunity to get their questions in. That would be helpful.
Senator Plett: I will try to lump some of my questions together
here in light of the time.
Earlier today, Casandra Diamond was here; it was great testimony. In her
testimony she said that she would like to see us get rid of prostitution in
her lifetime but she was doubtful whether that would happen, but we needed
to keep on trying, and this had to be a work-in-progress.
You have said that the main concern you have about C-36 is the fact that
the bill does not entirely take away the fact that the prostitutes can be
charged. It gives them immunity at this point, but you would like to see
Of course, there's a five-year review as part of this bill. Would you
collectively agree that maybe this is the right way to go, we don't need an
amendment and we need to review this, and if that is something that still
needs to be put in in five years, that that could be added then? Would that
at least be one measure as opposed to putting in an amendment at this point?
Ms. Perrier: We need to be really careful with that. With this
bill, I don't think there should be trial and error. I think it needs to be
really clear that prostituted women should not be criminalized.
No matter what, around it, or aside it, we're basically criminalized by
society as it is. We're scorned by society. We're not accepted. So why
If I was criminalized, I will tell you guys, if I did the four years that
they had asked for me to do, I would have become a super-criminal, and I
would have been a very bad seed in society because of being criminalized.
Senator Plett: But you were criminalized before.
Ms. Perrier: I was criminalized and a judge just said, "You know
what, you're not going to jail. You are going to do your sentence in the
Senator Plett: Which will be the case now as well.
Ms. Perrier: It was the best thing that happened to me because it
took me out of that situation and put me in a community setting, one that I
didn't even understand. I didn't even know how to use a bank machine. I
didn't know how to grocery shop. I didn't know how to clean my house. I
couldn't hug my baby. I had to get back integrated some way. I know if I was
criminalized even more, I wouldn't have been socialized. I wouldn't have
been able to be around society.
Senator Plett: Ms. Matte, in the House of Commons Justice
Committee you responded to the claim that doing away with advertising will
somehow put prostitutes at a dangerous disadvantage because they will not be
able to properly screen their clients. Would you care to comment to this
committee on those remarks?
Ms. Matte: I said that?
Senator Plett: My information here says you said that. If not,
would you care to comment on that?
Ms. Matte: I was hearing this morning some of the media consortium
are seeing they're going to lose some money if they lose the possibility to
advertise, so they are coming up and trying to say this would not be a good
idea, but for me it is part of the big picture.
If you are really about reducing or ending prostitution or sexual
exploitation of women in Canada, you have to establish how you are going to
do it, and one of the ways is to stop looking at those advertisements as
just any type of advertising.
For me it is clear that they're saying they're making more money because
when you put a message in the back of the paper, you pay more if it is a
message about sexual services than if you want to sell your car. So they are
not stupid. They know they're making more money if they charge more because
that's one of the ways the sex industry has to advertise. For us, it is
clear that it is a very important part of the bill.
Of course, then how do you apply that? It is true for all laws. You have
to be a little more savvy about how you apply it and the priorities that you
go through, but I think the principle is very important. We have to stop
because one of the problems with the publicity is also that it normalizes
the existence of the sex industry. Everyone sees that. Nobody says anything.
Once again, you push your limits of what you think is socially acceptable or
For us, it is an important part to say no to advertisement. But then we
have to be logical. You cannot criminalize women who advertise their own
sexual services, which is my understanding —
Senator Plett: That's right.
Ms. Matte: — of what the bill is proposing to do, but to address
the root of the cause is important.
Senator McIntyre: Thank you for your presentations. I have to
admit that I was deeply touched and moved by what you had to say. Needless
to say, you have said it all.
As you know, the government has announced $20 million in new federal
funding, and as I understand it, these funds will support community
organizations that provide assistance to sex workers and assist those who
wish to exit prostitution and rebuild their lives. Bearing this in mind,
could we have your input as to how those funds should be distributed?
Ms. Falle: I do have some concerns that those funds will end up in
the wrong hands. For example, we have organizations that work with people
who are actively involved in the sex trade and what we say enable people to
stay in the sex industry, and I think there should be some kind of effective
screening that prevents those organizations from accessing those funds and
that they be allocated to organizations like ours with the sole mandate to
help people exit.
I see a lot of people who are getting on, for lack of better words, the
bandwagon for this human trafficking money that's already been dispersed
throughout this. I have already seen it go into the wrong hands. When you
have people who are exiting and people who have trafficked mixing with
people who are actively involved in the sex trade, it actually hinders their
exiting process and puts them at a greater risk of pimps and massage parlour
owners coming to the drop-in centres and picking up their women and that
sort of thing. So I think that's something that we really need to look at.
Ms. Perrier: I think, too, with this funding we need support in
survivor-led organizations. Having a survivor very close to me, I felt a
survivor was able to aid me in my healing journey. It wasn't like a
counsellor could have helped me. It was someone who understood where I was
at, and that's where I really want to see the money go to, and education.
That's a barrier for our girls. They want to move forward, and there's
that barrier where there's no funding for schooling, and that was my
freedom, going to college, and that freed me from having to rely on
Ms. Crack: I agree with what's being said. I think it's a twofold
thing. I think it needs to be put straight into the exit strategies of
survivor-led organizations, but I also think that money needs to be
allocated, like Bridget said, to giving opportunities for women to start a
new life, to have different options.
Right now a lot of women enter prostitution due to having a lack of
choices, so we need to create those choices. We need to offer job training
and education. We need to offer housing and all those things so that there
are now more choices to make.
Ms. Matte: First of all, I think $20 million is not enough for
five years. We need core funding for front-line women's groups who are
working on violence against women, including prostitution. I think it has to
be part of the larger picture of what we need to do to end men's violence
against women, and of course it is very important to make sure that those
organizations have a place and clear participation of survivors in the
process, either survivor-led or very clear participation from the survivors
as one of the criteria. Otherwise it is true that you can just apply for
money and multiple little grants that are not really focused. For us it is
important to be focused.
Senator Boisvenu: What can I add to what my colleagues have said?
Your testimony has been very educational and I would say very enlightening,
with regard to the environment of violence that surrounds prostitution. You
must be very proud of your personal journey, which I found bore witness to
great maturity. You own what you have been through and you do so very well.
Choosing to use your experience for the purpose of helping women out of
prostitution makes you a model for Canadian women.
I also share my colleague Senator Baker's point of view. Canadians have
listened to you attentively, and your testimony will help them to better
understand this phenomenon, which makes many victims.
Ms. Matte, I would like you to speak to us about the concept of equality,
which I found superior to the cause. I would like you to tell me about it in
the context of this bill. How will the bill develop this concept of
equality? You touched on it, but you did not expound.
Ms. Matte: By recognizing that prostitution is a form of sexual
exploitation, and thus a form of violence against women, we are at the heart
of equality. Generally speaking, with regard to prostitution we can talk
about equality, or social inequality, and more particularly about the
inequality between women and men. It is clear that the bill allows us to
recognize that prostitution is more than a commercial exchange between two
consenting adults — which is to some extent the rhetoric of the Supreme
Court, when it claims that we cannot intervene as a state, since this
involves two consenting adults and this is only a commercial exchange. And
yet everything shows that the power relationship between these two people is
of immense importance. Not only is there an imbalance at the economic level,
as one has the money and the other one does not — which is not a very equal
situation — but also at the level of what provoked the situation. On the one
hand, women came to prostitution because they lacked choices in their lives,
but also because of the existence of this reality: the trivialization of
prostitution and of the sexual violence they were subjected to, of its
impact on women and on their capacity to attain equality.
And so it is important to understand that we are looking at an unequal
Senator Boisvenu: Which leads me to my next question, addressed to
all of you: I see from your testimony that you all began very young. We will
have to intervene to prevent young people from entering this activity at
such young ages. The impacts are even greater when people get involved in
this at 12, 13 or 14 years of age, which is what happens.
How can we intervene with such young girls and boys through prevention or
other means, in order to avoid their being swallowed up by this activity,
which seems to hold some attraction — and I am still trying to see how that
Ms. Falle: Early education is really important. This needs to be
implemented in the school system at an age where kids start learning about
what sex is, so 11, 12, 13 years old, as a part of sex education programs. I
think that's probably the most important.
There also needs to be education for parents. We have the Internet now.
We are seeing the sex trade is obviously being moved indoors and the
Internet is a huge source for sex abuse. Tool kits available in the
classroom that will educate both parents and children I also think are
I know when I was entering prostitution, I didn't know that there were
shelters for young people. I was very privileged. I came from a middle-class
home, and I didn't know that there were centres for people like myself. I
thought shelters were for homeless people. I think these resources need to
be made available through advertisements and campaigns and that sort of
thing so kids do know help is available. That's also important.
We also need to again make sure that Bill C-36 does pass so we don't see
full decriminalization where we'll see billboards with big ads that are
luring kids in high schools to come to the strip clubs or come into these
bawdy houses and be sold. That's also very important.
Ms. Perrier: I think, too, that we need to take the age of consent
from being that young age and put it up to the age out of care. At 16 years
old how can a child who's been in the child welfare system navigate life? I
was lured out of child welfare. I was a society ward. The Crown had a duty
to protect me, and in their little den that they created for us was where
the girls were bringing the younger girls out of the group home and the
staff had no idea how to stop it. They actually hid it from the workers
because they didn't want the group home to be shut down. We need to really
look at that, group homes and all that, where kids can be targeted.
Alongside Natasha, what she says is early education. I'm the mother of
four children, and my kids range from 21 to 2 years old. I have three
daughters, and they are educated. They're advocates, and they understand
what can happen in the midst of the wrong boyfriend, the wrong indicator
online. The Internet is a lure.
Ms. Link: Beyond children, we really need to start thinking about
our students who are going into human services fields and those sorts of
things as well as professionals already in it. Children need to know and
children need to understand who is going to teach them. We need some really
good education programs for our adults because what we're looking into is
providing education to the schools where the children are, but also to the
colleges and universities where people are training to work with these
children and local services that are already assisting these children so
they have a better understanding of what this really means. They need to
know what the signs are when somebody is thinking of going in or is in, the
ways they can show them what the truth is and that it's not glamorous.
There is huge danger. These escort services, you're not just going on a
date; this is what you're really going to be doing. As well as our police
and our lawyers, they really need to understand that this woman isn't there
because she loves it. This woman is there because as children that's where
they ended up.
Educating our professionals and professionals-to-be is where we need to
be putting our efforts.
Senator McInnis: Thank you. This has been riveting and
educational. I'm not certain if the issues surrounding prostitution have
ever received greater public attention than what the Bedford case in
the Supreme Court of Canada and now Bill C-36 have given us. This is a time
and an opportunity for us to take advantage.
The Nordic model, we have been told, is a success. Bill C-36 is modelled
after that. We talked about the $20 million, and we can talk about the
quantum as to whether it's sufficient or not, but there's a huge number of
prostitutes, apparently, and a large number of organizations such as yours.
My concern is — and I will come to a question in a minute — are your
groups too fragmented? Are we equipped to handle what could be a huge
challenge? Canada is a large country. Would it not be better if we take a
more coordinated approach?
With respect to quantum, my experience in public life is that when
there's public acceptance here or the realization that prostitutes are
victims who are being exploited, the Canadian public will be quite prepared
and happy and will demand that dollars be spent on these issues.
We've heard from a number of different groups, and I haven't detected
something that would tell me that you are organized. You're organized in
your own way, but are we really organized across the country? Is there a
core group that's available to take this and do something with it?
Everything from education to you name it. That is a challenge. It's a
challenge that should be taken up now, because it's high-profile. I would
like your brief comments on this.
Ms. Matte: Just briefly, there are some organizations that have
been working and are still working. One of them is the Canadian Association
of Sexual Assault Centres. You will hear from them this afternoon. They're
the first feminist women's group in Canada that has clearly stated that
prostitution is a form of violence against women and we have to address that
issue from coast to coast, not only as a question of each province.
We might be thankful to the Bedford case because they are pushing
us to say the criminal law that is there, the Criminal Code articles on
prostitution that are there right now are obsolete and are a nuisance to
women, not to society. So we have to look at the question of prostitution in
much broader terms.
In that sense, it's a very important moment that we're at in Canadian
society to stop looking at prostitution as something that has always been
there, will always be there, but look at it from a different paradigm, a
different issue, the question of equality, as I've been saying.
It's important to recognize that of course the discourse of choice, the
idea that women are choosing, and the power of the sex industry to bring
this message forward, whether it is in universities, in communities, in all
kinds of places, has put us in a situation where very often people think
that if they have chosen it, that's okay. We can just put them inside or
organize them differently so we don't disturb their choice. But we know from
our collective experience that this is a lie.
It satisfies only the sex industry and the people who want to maintain
prostitution to look at prostitution as a question of choice. We have to
look at it as a question of women's inequality.
Ms. Link: There's a shortage of organizations like ours, and a lot
of that has to do with the fact that they have been criminalized up to this
point. How were they able to reach out for help when they felt like we were
going to wag our fingers at them and throw them in jail or those sorts of
things? It wasn't an open dialogue before. They were shoved back into the
shadows; they were told, "No, you're wrong, you're bad." Why would they come
to us for help?
If we can get the dialogue moving better, our organizations will thrive
better. We'll see more women and children coming in for help because they're
not afraid of what we're going to do to them. They're afraid of being
re-victimized in a way by the people who are supposed to help them because
instead of helping we end up hurting more because the laws don't allow us to
help very much.
Doing new things is what's going to make us all stronger, more connected
and better organized. The money that you guys have been talking about
putting in is really a small drop in the bucket in the whole scheme, but
that kind of stuff will help us become more connected.
Senator Dagenais: Thank you to our witnesses. My question is very
brief and is addressed to Ms. Perrier. Do you think that the bill will
encourage the women in your community to contact police to lodge complaints
more often against the abusers?
Ms. Perrier: I think it will make it easier for them to report
their abuse and will bridge that gap where police and prostituted women
could be able to work together.
Ms. Falle: We're already seeing that in our coalition. The way the
police have been looking at prostituted women has already started to shift.
We have police who volunteer with our coalition. That have offered
mentorship, which we think is just amazing. We had not seen this. In my day,
we didn't see police and prostituted women working together the way we're
seeing it today. Of course we're going to see more of this when we pass Bill
Ms. Perrier: Once law enforcement is properly trained, you can
build a relationship. I never thought I would hang out with police officers;
I really didn't. Now we're having dinner with them and they're asking me for
my opinion. They're supporting us.
Ms. Falle: We're going into the police stations and offering
Senator Dagenais: Just as a comment, you know that police officers
do receive training courses now: when I was still a police officer, we had
training courses on family violence and I know that, at this time, training
is being given. Ms. Matte, you alluded to the fact that police officers are
not social workers and you are entirely correct. However, as police
officers, they must have a different approach today. Thank you very much,
ladies, for your testimony.
The Chair: Thank you, all. I think it's safe to say you've made an
impactful contribution to our deliberations on this legislation. Thank you
for being here and for your testimony today.
For our next panel, let me introduce Terri-Jean Bedford. Ms. Bedford is
the respondent in Canada v. Bedford. And we have Frances Mahon,
Lawyer, Sack Goldblatt Mitchell LLP, part of the team of counsel for Ms.
Bedford; and by video conference from Vancouver, British Columbia, Janine
Benedet, Associate Professor, Faculty of Law, University of British
Columbia, who is counsel for an intervenor in Canada v. Bedford.
Ms. Bedford, I understand you're going to lead off with an opening
statement. The floor is yours.
Terri-Jean Bedford, Respondent/appellant on cross-appeal, Canada v.
Bedford, as an individual: Prime Minister Harper called me
again. He offered to appoint me to the Senate as a Government Whip. I turned
him down. I may run into some former clients here on Parliament Hill.
I am the Bedford in Bedford v. Canada, the constitutional
challenge striking down the prostitution laws. I know the sex trade as well
as anyone in Canada. I learned about the issues by working in and managing
almost all aspects of the sex trade over 30 years. I have fought the
prostitution laws for many of these years. I have been in jail because of
the laws. I have been in court as a defendant or appellant more times than I
care to remember. I am Canada's most famous dominatrix and perhaps Canada's
most famous prostitute. I was in attendance for most of the sessions of the
three years' challenge, so maybe I know what I'm talking about.
In these brief remarks, I will make a few points of my own. You have a
library of evidence against Bill C-36, and I don't want to repeat or submit
briefs by saying what others have said so well.
First of all, senators, when it comes to consenting adults, the state has
no business in the bedrooms of the nation.
Second, the national debate currently under way has not given enough
attention to sex trade workers who don't want to exit and are there by
choice. If you ask me today, I'll tell you about some of them. These women,
and indeed male sex workers, should not be grouped in with those who want
Third, what exactly is Bill C-36 supposed to outlaw? What exactly would
be illegal between consenting adults in private for money? The response from
some supporters of Bill C-36 are words to the effect that "everyone knows"
or "the courts would have to decide." Well, if everyone knows, why not refer
the bill there immediately, and if the courts have to decide, well, why not
send it there?
Fourth, why does the government claim they are making the purchase of sex
illegal? If it was legal to purchase sex before, where did all the john
schools come from? This new law changes nothing in that regard.
Fifth, the Justice Minister was wrong to call the sex trade degrading.
The clients are there by choice. They are half the transaction. Many are
pillars of the community, often business leaders, professionals and
politicians. Most sex trade workers do not consider their work degrading;
lumping them in with those who want out is not acceptable in a free society.
Sixth, those who ask if you want your daughter to be a sex trade worker
might also ask if you want your daughter working in any number of poorly
paid, dangerous or menial jobs while getting sexually harassed in the
bargain. And while we're at it, I want my daughter to work in the sex trade
but I want it to be her choice. Not only that, I may want your daughter to
work in the sex trade, and for it to be her choice. If you don't like that,
I suggest you mind your own business and move to a country where the choices
of consenting women are controlled by the government.
Senators, it is bad policy to direct scarce law enforcement resources to
stop consenting adult behaviour in private — while tax evaders, wife
beaters, terrorists and what have you go unpunished.
So, senators, please don't allow Bill C-36 to pass. Stand up for your
country first. Use laws you have to help those most in need, in and out of
the sex trade.
Senators, please, please don't allow Parliament to force Canadian women
to have sex only for free. Thank you.
Frances Mahon, Lawyer, Sack Goldblatt Mitchell LLP, as an individual:
Thank you, senators, for inviting me to speak with you today. As you
know, I'm a criminal defence lawyer working at Sack Goldblatt Mitchell.
While I was at Osgoode Hall Law School I had the wonderful opportunity to
work with Professor Alan Young on Ms. Bedford's case. I now work with Marlys
Edwardh and Daniel Sheppard, who were co-counsel to Professor Young.
I'm here today to tell you that Bill C-36 will not survive a
constitutional challenge. I'll be very happy to answer any questions that
you have, but before I begin, I would like to say a few words about the
objectives of the new bill.
The preamble to Bill C-36 states that exploitation is inherent in
prostitution. You have heard, and you will hear, from the people who
actually work in this trade, the sex workers themselves, as well as those
who have left it. I would ask that you fulfill your function as the house of
sober second thought and listen carefully to their stories.
Some of the stories you have heard and will hear are horrific in the
extreme, and I will admit that, as a young law student working on the
Bedford case, I was very troubled by many of the stories that I heard. I
have believed for many years that there is nothing inherently harmful about
sex work, that anyone should be free to choose this profession as long as it
was a freely made choice. I was forced to question this belief in light of
the deep distrust and empathy that I felt toward those sex trade workers,
both current and former, who experienced violence and did not exercise a
freely made choice.
But after deep reflection, I've realized I could not look Terri-Jean
Bedford, Valerie Scott and Amy Lebovitch in the eye and tell them that they
are inherently degraded by their profession. Ms. Bedford is before you
today, and you will hear from Ms. Scott later this afternoon. These are
strong women, intelligent, tough, capable and determined. Do you believe
that they are not capable of freely exercising choice over their bodies,
over their profession? Can you look them in the eye and tell them they have
been degraded when they stand here before you telling you the opposite?
There is nothing inherently degrading about sex work when it involves
adults who freely consent to the exchange of sexual services for money. What
degrades sex workers are bad criminal laws that make it more difficult if
not impossible for sex workers to enjoy safe working conditions and be
accepted in our society.
I take no issue with the provisions of Bill C-36 that are aimed at
preventing the exploitation of children in the sex trade, nor do I take
issue with the provisions aimed at adults that are expressly limited to
exploitative conduct. But to say that all sex work is exploitative, that I
cannot agree with. Nor do I believe that those who purchase sexual services
from a consenting sex worker are criminals. Ask yourselves: Is every single
person who is paid for sex a criminal?
Nor can I agree with the proposition that sex work can be eradicated in
its entirety. No law has ever entirely deterred criminal conduct. One only
need look at the U.S.'s war on drugs to see how missions of this sort are
doomed to failure. Indeed, the U.S. is a good example of a state that has
extraordinarily restrictive laws surrounding the sale, purchase and
advertising of sex, and yet it still occurs, as we all know.
Even if I believed that sex work could be eradicated or that this were a
laudable goal, sex workers still require safe working conditions in the
meantime. As you have heard, many believe that Bill C-36, if passed, will
create dangerous working conditions for sex workers. I share that belief. If
the safety of sex workers was truly Parliament's goal, it would have framed
this bill as a workers' rights issue and not used the blunt force of the
criminal law. Criminalizing consensual sexual relationships between adults
does not enhance the safety of the participants.
I submit to you today that the proposed laws will run afoul of section 7
of the Charter, which provides that everyone is entitled to life, liberty
and security of the person; and that, like the laws already struck down by
the Supreme Court of Canada, they will eventually be found to be either
arbitrary, overbroad or grossly disproportionate.
These are the principles of fundamental justice. The principles of
fundamental justice are the basic values underpinning our constitutional
order. A law is arbitrary when there is no connection between the effect and
the object of the law. A law will be overbroad when it goes too far and
criminalizes conduct that bears no connection to that objective. Finally, a
law will run afoul of section 7 when the effect of the law is grossly
disproportionate to its objective.
The Supreme Court of Canada held in Bedford that if a law has an
arbitrary, overbroad or grossly disproportionate effect on even one person,
it will breach section 7. This part of the judgment can be found at
paragraphs 122 to 123.
A common-sense analysis of Bill C-36 shows the futility of its
propositions and the certain constitutional violations that will occur. For
example, Parliament has made some attempt to respect the Supreme Court's
decision by eliminating the reference to prostitution from section 210, the
bawdy-house provision. Bill C-36 thus allows the sex worker to work indoors,
perhaps with a friend, as long as they're not exploiting each other. Indeed,
the vast majority of the evidence in the Bedford case demonstrated
that working indoors was unquestionably safer, and I think it's easy to see
why this is the case.
I would be tempted to approve of this new provision were it not for the
prohibition on advertising. While Bill C-36 does not outright prevent sex
workers from advertising themselves, no one is actually allowed to carry the
advertisement, and it defies logic and imagination to see how someone could
possibly advertise —
The Chair: You're over your time. Could you wrap up?
Ms. Mahon: I would submit the advertising portion of the new bill
would render it grossly disproportionate and likely subject to a
constitutional challenge. I would ask that we would not wait the 10 or 15
years that it would take to mount such a constitutional challenge while sex
workers die in the meantime, and please, please, understand this as a
workers' rights issue. This is not a criminal law issue. This is about
enhancing the safety of workers.
The Chair: Thank you. Professor Benedet, you have an opening
Janine Benedet, Associate Professor, Faculty of Law, University of
British Columbia, as an individual: Yes.
I'm a law professor and a lawyer who has spent the past two decades
researching, teaching and advocating for sex equality under law, with a
particular focus on sexual violence against women and girls.
I'm here today to testify in support of Bill C-36. I've read the
provisions of the bill in their current form. Overall, the bill reflects a
very positive and fundamental shift in our legal understanding of
prostitution, moving away from thinking of prostitution as a question of
merely morals or nuisance and toward an understanding of prostitution as a
practice of sex inequality and a form of violence and exploitation against
women and girls. I think the government has recognized, correctly, the
overwhelming evidence that the global prostitution industry is not a series
of individual contractual exchanges between equal parties but a
profit-driven industry that outsources sexual subordination to the most
disadvantaged women and youth.
An important feature of the bill is the provision dealing with
criminalizing the purchase of sex, section 286.1. What is most important
about that provision is that, for the first time, we see it grouped with the
trafficking offences and with other offences against the person. This makes
clear that the act of buying sex in any location is a form of criminal
activity that should be grouped with other offences of violence. Doing this
strengthens its constitutionality.
The claim I keep hearing is that criminalizing the purchase of sex will
be unconstitutional because it pushes prostitution underground. There is
something ironic about the argument that men must be allowed the
unrestricted opportunity to buy sex from women in order to keep women safe
from those very same men. I want to rebut that argument before the Senate
First, and most fundamentally, prostitution is at its most underground
when it is completely decriminalized. The New Zealand approach, which has
been touted by supporters of decriminalization, means that brothels of fewer
than five women operate entirely invisibly, with no certificate required,
and entirely outside the reach of the law. Even in New Zealand, at least a
third of the prostitutes there are working illegally, mostly Chinese
Second, visible prostitution is not safe, healthy or equality promoting.
The brothels of Germany provide a good example of that. Since 2002, when
prostitution was legalized there, I am informed that at least 34 prostitutes
have been murdered by clients, pimps or others from the industry, and there
have been at least 20 attempted murders, many of which are taking place
inside legal brothels. Legalized prostitution is not safe, and indoor
prostitution is not safe.
Finally, I would say that this argument is, at its heart, disingenuous.
It is an argument that completely ignores inequality. You can see that if
you compare the arguments that are being made before this committee to the
offence of purchasing a person under the age of 18, which uses identical
language to the new section that's being proposed, for those 18 and above,
in Bill C-36.
It is a crime to buy a young person for sex, and no one seems to be
disputing the continued existence of that provision or questioning its
constitutionality. No one is going to come to you and ask you to repeal that
provision because it makes kids unsafe by pushing prostitution underground,
even though exactly the same argument ought to apply. They will not say,
"Well, let's decriminalize guys who buy kids because that will help keep
youth prostitutes safer and more visible." The reason they won't argue that
is because it's generally accepted that buying a young person is
exploitation because of the inequality of power based on age, even if the
kid says yes. Of course, there are usually many other inequalities at work,
including some combination of gender, colonialism, poverty and addiction.
Yet, when the inequality of age is no longer present, people refuse to see
any of the other inequalities that are so prevalent in the prostitution
industry, even when that prostitute, now an adult, started as a child, which
was true of many of the witnesses in the Bedford case.
So the fact that women in prostitution are overwhelmingly poor, that so
many of them are racialized, that they are trafficked to meet male demand,
that they struggle with addictions and intellectual disabilities, that they
face the effects of colonialism, including high rates of physical and sexual
abuse and being placed in state care — those inequalities count for zero, so
long as the woman is 18 or older and she's willing to take the money. That's
the definition of "consenting adults" that is being put before this
committee, if indeed prostitution is to be totally decriminalized.
I submit that it is time to stop ignoring those inequalities and that
Bill C-36 does something very important in recognizing that there are other
inequalities beyond age that make the prostitution industry exploitative and
worthy of the criminal law's attention.
The final thing I would say, to open, is that the criminal law is not
expected on its own to eradicate acts of violence or abuse. We don't expect
that for any other offences against the person, and we shouldn't expect that
here. The criminal law is part of an overall strategy to decrease and to
eliminate prostitution, a strategy that, with the exception of Sweden, which
is relatively recent, really hasn't been tried anywhere in the world. But
it's my submission that, in fact, it's time to try that strategy and to see
the criminal law as a necessary component of that overall program, but I'm
The Chair: Professor, we'll have to stop you there.
Ms. Benedet: Yes. Thank you.
The Chair: Thank you all for your opening statements. We'll move
on to questions.
Senator Baker: My first question is to the professor.
Professor, practically all of the representations that have been made to
this committee, organizations who have been before the committee for the
past 24 hours, have all advocated that this bill be amended to remove the
section dealing with criminalizing the act of prostitution.
Do you agree with the vast majority of representations made to this
committee that this bill should be amended so that the act of prostitution
will not be criminalized?
Ms. Benedet: If I could just ask for clarification there, I'm not
sure which provision of the bill you're referring to that directly
criminalizes prostitution. Are you speaking to the provision that
criminalizes the sale of sex near schools and daycares?
Senator Baker: Section 213(1), in public, yes. Do you agree or
Ms. Benedet: I just want to make sure that I understand the
In the first reading of the bill, there was a broad provision saying that
the sale of sexual services in a public place anywhere that young people
could be expected to be present was criminal. I opposed that provision
before the Justice Committee. That provision, as I understand it, has now
been amended to make it limited to the sale of sex near a school, daycare or
place of worship. I still think that provision ought to be removed from the
My concern is that criminalizing the sale — and that's why when you say
criminalizing prostitution, I want to be clear. There's the purchase and
there's the sale. I support the criminalization of the purchase. I don't
support the criminalization of the sale, of women in prostitution. My
concern is that even some residual criminalization means that all of the
police's efforts will be directed to those women on the street who are
predominantly, in the country, Aboriginal women.
Senator Baker: Thank you very much. Now I turn to the witnesses
here. First of all, I'd like to congratulate Ms. Bedford for her years of
work on this issue and to congratulate her lawyer, who unfortunately is not
here with us today. But somebody who was a student of law with him, Ms.
Mahon, is here with us today.
It was a long struggle, over many years, and so I would like to ask you a
question that we've been debating here, and that is, as your lawyer has
said, whether the matter should be referred to the court instead of waiting
for the process to discover whether or not it is in fact unconstitutional.
Let me ask that question. Before I do, is there an error in the decision
of the Supreme Court of Canada in Bedford where at paragraph 17 it
The application judge, Himel J., concluded that the applicants had
private interest standing to challenge the provisions.
The reason I ask that question is because there's quite a difference
between public and private interest standing. Is there an error here in the
facts of the Supreme Court of Canada decision?
Ms. Mahon: Perhaps I could field that, senator. As a young lawyer,
I'm extraordinarily reluctant to suggest that the Supreme Court of Canada
has made an error in its decision.
Senator Baker: On its face.
Ms. Mahon: On its face. Just to clarify, the applicants received
both public and private interest standing. Ms. Bedford and Ms. Scott, as
former sex workers, received public interest standing. Ms. Lebovitch, who is
a current sex worker, received private interest standing to bring this case
forward. I hope that answers your question.
Senator Baker: That's what I thought. So with Ms. Bedford, it was
public interest standing, which is a completely different standard. It's an
error in the factual — okay.
Let's move on to why — these are criminal matters. Out in British
Columbia, the Downtown Eastside workers went to the Supreme Court of Canada
two years. That was done under the civil rules of procedure. Your case, Ms.
Bedford, was done under the civil rules of procedure, not under the criminal
rules. We've discussed this here in the committee. It's rather unusual
because under the civil rules, if you lose a case, you stand to owe an awful
lot of money. You almost have to be a millionaire to proceed civilly under
the civil rules, with the danger of losing the case. What is important here
is the period of time that it takes in order to accomplish that fact,
instead of under the criminal rules under which you would not be subjected
Is this the reason why you suggest that this matter should be sent to the
Supreme Court of Canada as a reference and not have to wait years upon years
to find out from the courts if it is in fact unconstitutional?
Ms. Mahon: Thank you, senator. The reason I don't want to wait
years for this to wind its way through the courts again is because I do not
want to see a single sex worker be harmed as a result of these laws, which
is unfortunately what would be required to mount a successful constitutional
The record in the Bedford case was 88 volumes, and this was a
collection of sociological evidence, as well as experiential evidence, from
current and former sex workers themselves. Because the new proposed
legislation has quite different objectives than the now impugned provisions,
we would have to build a new record to mount a constitutional challenge, and
it will take time to see the effects of the legislation on sex workers
themselves. But are we going to wait and have people die and experience
violence as a result of these provisions? If there's even a slight chance of
that happening, wouldn't we want to be sure that this legislation was proper
and correct before that happened, if we truly care about the health and
safety of workers?
Senator Batters: Thank you very much all of you for being here
today with us.
Ms. Mahon, I just noticed that Canadian Lawyer did an article
earlier this year about you. You indicated in your presentation earlier
today that you're now practising at Sack Goldblatt, but at the time that
Professor Alan Young was working on the Bedford case, you were at
Osgoode Hall Law School. How long have you practised at Sack Goldblatt,
Ms. Mahon: I recently completed my articling term at Sack
Goldblatt, and I was called to the bar this past June. So I've only been a
lawyer for a few months.
Senator Batters: Quite an experience early in your career.
Ms. Mahon: Absolutely.
Senator Batters: Ms. Benedet, first of all, I would like you to
outline your credentials. You're an associate professor in the Faculty of
Law at the University of British Columbia. Tell us a bit about how long
you've been there, what your main field of study and teaching has been, that
sort of thing, please.
Ms. Benedet: Sure. Yes, I'm an associate professor, full-time,
tenured professor of the Faculty of Law at UBC. I've been at UBC since 2005.
Prior to that, I was actually six years at Osgoode Hall Law School in
In addition to being a law professor whose research focus is on sexual
violence against women, including sexual assault, prostitution and
pornography, I'm also a member of the bar in Ontario and in British
Columbia, and it's in that capacity that I do pro bono litigation on behalf
of the women's movement in Canada. So I've been working on issues relating
to sex inequality and sexual violence against women for over two decades and
on the issue of prostitution specifically for about 15 years now.
Senator Batters: Thank you. I appreciate that. I notice that when
you provided your testimony before the House of Commons Justice and Human
Rights Committee, you had a very interesting approach that was not
frequently heard in many that testified, and I quote that you said:
. . . yes, we do have to think about section 7 of the charter, but we
also have to think about section 15, the equality rights provision,
which was studiously kept out of the analysis in the Bedford case. . . .
section 15 can no longer be ignored in the constitutional analysis.
I would like you to expand on your arguments in that regard.
Ms. Benedet: It is important to remember that section 15
guarantees every individual in this country freedom from discrimination and
the right to equality without discrimination on the basis of sex, and the
way that the constitutional challenge was constructed, it was strictly a
section 7 question and attempts to bring equality into the balance and to
demonstrate the ways in which the prostitution industry is deeply gendered.
The ways it preys on inequality were kept out. To the limited extent that
the Attorney General for Ontario tried to bring those arguments in, they
were told that these laws were not designed to address inequality. That was
not part of their objectives and they had much narrower objectives.
What is gratifying about the way in which Bill C-36 is constructed is
that those objectives are now clearly in the bill. The placement of the
offences in the Criminal Code also raises that as well. When thinking about
the principles of fundamental justice, that will at least give us an
opportunity to argue that, in fact, sex equality is a principle of
fundamental justice and we need to consider that in the analysis as well.
Senator Batters: Referring to the one point you just made, you
talked about how those particular provisions have been grouped in the
Criminal Code, and you said that strengthens its constitutionality in your
view. Could you expand on that, please?
Ms. Benedet: One of the interpretive aids that the court can use
in deciding what the objectives of legislation are is to look at the
placement: What section of the Criminal Code is this in? How is it labelled?
How is it constructed? If the offence is described as being an offence
against morals or a nuisance-related offence, and if it's grouped together
with other offences of that type, then that weakens the argument that there
is, in fact, a deep concern about exploitation, about violence and about
By grouping the offence with offences against the person, which are
understood to be offences of violence, and by grouping it with trafficking
offences, that's a clear signal that we're attempting to shift the paradigm
in our thinking about prostitution, and I think it bolsters the argument in
the balance about the constitutionality of the legislation.
Senator Jaffer: Thank you to all three of you for being here, and
I want to specifically thank you, Ms. Bedford, for the persistence and
courage you had. These are not easy issues. Ms. Mahon, congratulations. You
have achieved so much in a short time. It is laudable.
I will start with you, professor. Professor, I was interested in what you
had to say. I come from your province and know of your work.
You spoke about racialized groups and you spoke about Aboriginal people.
Do you think that something needs to be added in this bill? As you know, in
our province, with the issue of Aboriginal people, we all are very much
aware of how we have let people down.
Do you think there should be something additional in this bill hat to
reach out to those groups?
Ms. Benedet: There's no question that all the evidence we have
suggests that Aboriginal women and girls are grossly overrepresented in
street prostitution, and that in many cities in this country, Asian women
are grossly overrepresented in indoor prostitution. That's one of the
reasons that I am disturbed by these constant appeals to choice. I don't
think we should assume that Aboriginal women choose it more than other women
or that Asian women choose it more.
The effects of racialization and colonialism are profound on those
groups. I don't know that the criminal law is the place to single out
particular groups. It seems to me that the attention needs to be on the
vitally important other parts of the package that deal both with recruitment
into the prostitution industry, trying to discourage that, and making sure
that we're enforcing the provisions against procuring and against pimping
and profiteering. Also, on the other end, are we really providing the kinds
of supports and funding that will make a meaningful difference to provide
women with alternatives to prostitution so it doesn't become the de facto
welfare for Aboriginal women and girls in this country?
It seems to me that's a vitally important part of what needs to happen as
part of this national conversation about prostitution.
Senator Jaffer: Ms. Bedford, all summer I have been speaking to
people in this industry and it has been quite an education for me, and I'm
being very sensitive so don't take anything I say in an offensive way. I
have not walked in the shoes that you have walked in, and I don't have life
experiences, and from where I sit, it is very difficult — I'm doing it with
the utmost of respect — to understand that people say this is our choice and
we're doing it voluntarily and there are no victims to this.
Can you explain what you mean by this is choice? Can you help us
Ms. Bedford: Choice? Well, I will do my best. First of all, I
would like to say, because I know I'm not going to get a chance to talk
much, but we all have a choice. We have a choice to get up in the morning
and go to work, or we have a choice to just lay there in bed. Bed is a poor
man's opera. When you have three kids who want to be fed and you have no
resources and the government won't help you, what do you do? There is a
choice. There is a woman who is destitute and out of options.
Then you have a woman who wakes up in the morning and decides, gee, I
need a new outfit because I have got a big date tonight, and she makes a
choice that she's going to be a sex trade worker because she needs more
There are others who want to go to a university, get a prime education,
but their families are poor and they have no other alternative but to take
other measures. Maybe their grades aren't up to par where they can get a
scholarship, so they choose to work in the sex trade. If they are bright and
if they're working towards an education, they obviously will do a little
homework and go to meetings and organizations that teach them how to be
There are many levels, just as there are many levels of government and
many ways to enforce bad laws.
I would also like to say that if this law passes, I'm going to make you
guys forget about Mike Duffy, because I've got more information and more
proof on politicians in this country than you can shake a stick at. I
Senator Plett: My questions are for the professor as well.
Professor, you said you are a professor of law, and I want to continue along
the line of questioning that Senator Batters started right at her last
I have been on this committee for a while now, and it seems that every
time we have a law that the lawyers don't like, they start off with saying
it is not constitutional. It is their first argument, and yet it seems that
these laws usually stand the test of time and that they are constitutional.
My question is whether you believe that this proposed law is, in fact, in
accordance with the Bedford ruling. If so, how? Do you believe that,
in fact, it will stand the test of a challenge to the Supreme Court?
Ms. Benedet: Yes, I do. I do believe both that the law is a
genuine attempt to respond to the restrictions put on Parliament by the
decision in Bedford, and it does seem to me, that the law is crafted
in a way that it meets the demands of the Charter.
I say that because, first of all, it is important to remember, leaving
aside for a moment the provision dealing with the sale of sex in a public
place near a school, that the other provisions are targeting buyers — johns
— and they're targeting pimps, whose safety is not put at risk by
They are the people who are actually going to be charged under these
laws. There is no security of the person argument that applies to them. So
we're already a step removed to say, well, criminalizing someone else
imperils my security of the person. Even if the court were to accept that
argument to some degree, there is still a balancing exercise, and that's
where the objectives of the law and the reframing of the law as a crime of
violence come into the balance and strengthen the argument for
There are also extensive provisions in this bill on pimping and
profiteering. It was a tricky road, given the Bedford decision. The
court there recognized that the existing pimping laws had important
objectives to prevent exploitation, but that nonetheless they were still
What Parliament has done here is quite innovative in attempting to put
the focus back on exploitative profiteering without requiring direct proof
of coercion. That is important because otherwise, as the Supreme Court
recognized in its earlier decision in Downey, that forces the woman
who has been pimped to testify against her pimp, which makes prosecutions
Overall, I see here a bill that is largely attuned to the concerns that
the court raised. If the argument that is being made is that criminalizing
the purchase of sex is inherently unconstitutional, we have to recognize
what is being asserted then is that there is a constitutional right to buy
women in prostitution. My reading of the Charter of Rights, particularly in
light of the equality provisions, doesn't support that conclusion.
Senator Plett: At the risk of being blatantly misquoted again, as
I was yesterday, I do want to touch on the safety issue. I believe that Bill
C-36 fulfills the government's desire to get rid of prostitution, to abolish
prostitution, but I would like your response to that, and whether it should
be more important to reduce the number of women in prostitution over making
it a safe job. However, having said that, whether Bill C-36 doesn't, in
fact, do both, makes the sex worker a little more safe because of the safety
measures, if you will, that are built into it, where she, in fact, has
immunity to prosecution, that it could, in fact, do both.
The Chair: I will have to ask you, professor, to give a concise
Ms. Benedet: Certainly, the fact that women are not facing
criminal charges makes it easier for them to report acts of violence against
them. Overall, it is important to remember that the most brutal and
degrading forms of prostitution tend to be visited upon the most
marginalized women. That hierarchy — you can shift things around all you
want, but that remains.
The single most important form of harm reduction is to actually decrease
the amount of prostitution that is taking place, the number of girls and
young women who are being recruited to prostitution. The only way you can do
that is to also target the demand for prostitution. You will never reduce
supply if you allow demand simply to remain unchecked.
Yes, I think there are elements of this bill that accomplish both of
those objectives to some degree.
Senator Joyal: According to the bill, as you know, Ms. Bedford,
there is a section of the bill that allows you — and I'm using the words of
the bill — to offer your own sexual services or advertise them, provided
that, in fact, you are not working for or giving a material benefit to a
third party — that is, for instance, a person who would be running a house
where there would be a certain number of persons who would be offering their
Ms. Bedford: The government, my taxes, you don't want that either,
right? Obviously, if I don't have to claim my clients, I don't have to pay
my taxes. I like that part of the bill. Yes, I do.
Senator Joyal: My question to you is that since the persons who —
Ms. Bedford: I can't pay my accountant. I can't pay my lawyer.
Senator Joyal: If the bill criminalizes your customers, for
instance, what will be the impact on you? What will change in the conditions
in which —
Ms. Bedford: It will make Canada the laughingstock of the world.
Where is it that you can purchase something legally but not buy it legally?
Why don't we do that with booze? Why don't we do that with other things that
the government legalizes? We will let you sell it but you can't buy it. What
does that mean? We can do it through the back door just as long as you don't
know about it? Ask me something else. Ask me something important.
Senator Joyal: It is important because, in fact, it will deprive
you from your own living —
Ms. Bedford: I'm going to do it anyway regardless of what you say
or not. If I decide to go back into business, I'm going to do it anyway, and
I'm going to wind up back here 10 years later. You know what it costs to do
this. I have a comprehensive outline. Would you like to know what it costs
to get here?
Senator Joyal: Yes, please.
Ms. Bedford: All right. Give me one moment, because I thought it
was very important to bring this up, because you're going to make me go
through this all over again. All over again.
Yes, be quiet. I won. Remember that. Fifteen judges. What makes you think
you're any brighter than 15 judges? Judge Himel told you, your evidence is
no good in this court but yet you want to try it in public, in the public
when you know that everybody you're parading across these screens was
rejected by Justice Himel, all their testimonies. All your polls are wrong.
Why don't you go and look in The Globe and Mail? If I was to run for
Prime Minister right now, I'd have a sweeping majority.
First of all, let me —
Senator Joyal: Can you tell us a rough figure?
Ms. Bedford: — get my notes together because I told myself I'd try
to act like a lady while I was here and not a dominatrix. Bear with me for
one moment, I beg of you.
No, I don't beg you nothing. One moment.
Senator Joyal: We can come back —
Ms. Bedford: Please, please, this is very important, because I am
going to be back here again and you're not going to like it.
The Chair: Each questioner has a time allocation and your
responses have to fit into that.
Ms. Bedford: You've given lots of other people lots of time. I
have 30 years of your abusive laws, so I should be allowed at least an extra
five minutes to talk about it.
You pat everybody else on the back, but when you know I've got a
bombshell to deliver, you want to try to avoid me at all costs.
All right, here it is, please.
The Chair: We're not going to cede the floor to you. I'm sorry,
I'm going to adjourn the meeting and we will have security escort you from
the room. If you do not want to abide by the rules this committee operates
under — we try to be fair to everyone, including witnesses, including you,
so we ask you to respect the rules of this committee.
Ms. Bedford: Yes, sir.
The Chair: If you're not prepared to do that, you'll have to
Ms. Bedford: I apologize. But —
The Chair: No, no buts.
Ms. Bedford: All right.
The Chair: We will allow Senator Joyal to ask you one more
question, then we've got to move on.
Senator Joyal, ask your question.
Ms. Bedford: Can I tell you what it cost to fight?
The Chair: No. I'm going to adjourn the meeting.
Ms. Bedford: Half a million dollars.
The Chair: We are suspending.
(The committee suspended.)
(The committee resumed.)
The Chair: Senator Joyal, I'm going to allow you to restart your
time. Please proceed.
Senator Joyal: I will ask the same question of Ms. Mahon.
Ms. Mahon: Can you rephrase it?
Senator Joyal: Of course, I will. What would be the impact on the
criminalization of the customer or the person who purchased sexual services
if that person is made a criminal? In other words, what will the impact be
on the person who offers sexual services? Will that person be more at risk
in that context than in the previous regime whereby the court came to the
conclusion that the safety and security of the person were at risk,
according to section 7 of the Charter?
In other words, what will be the impact on the security of the person who
offers sexual services if the customer is criminalized?
Ms. Mahon: I would suggest that in fact it would reproduce a lot
of the same harms that the Supreme Court of Canada already addressed in its
judgment. For example, the former communication provision would be the best
parallel in that what it set up was a situation where sex workers were
forced to transact in out-of-the-way places, and if you impose
criminalization upon those who would purchase the sexual services, the same
thing is going to happen.
Clients are not going to want to go to places where sex workers are known
to be, and instead they're going to end up in the dark corners, industrial
lots and that sort of thing. This will have the effect of sex workers being
forced to make very quick and rapid decisions about whether or not to engage
in the sexual acts with the client. As well, it will make them more fearful
of seeking help if they need it. If they experience violence at the hands of
the client, they may not be willing to go to the police because of it.
Katrina Pacey was here yesterday, and I believe she spoke to some of
these issues as well. Pivot Legal Society has done a great deal of research
on this particular issue, but in summary, I do think that it would reproduce
the harms that were originally caused by the former communication provision.
Senator Joyal: The other aspect which is important in the
Bedford case, as you quoted in your presentation paragraph 121, 122, is
that you don't need to prove that a whole class of people is affected by the
protection that is enshrined in section 7, that is, the security of the
person, but one has to prove only the harm done to one person. How do you
interpret that conclusion of the court, which is in my opinion very
important, because you need only to make the proof of one person to be able
to convince the court or sway the court that it is a breach of section 7 of
Ms. Mahon: I personally love and approve that paragraph. What it
means is that the Charter is meaningful to each individual Canadian. It
means that if I experience harm as a result of a bad law I don't need to
wait until there's hundreds of people in the same situation as me. It means
I can go to the courts and demand a fair resolution, without hundreds of
other people having to experience the same harm.
It is a very, very important paragraph for that reason, in that it does
show why the constitution is important to individual Canadians as well as
Senator Joyal: Can we go back to the issue of proportionality,
that is, the objective as the bill states in its preamble and its impact,
and the court will have to measure whether this is proportionate. In other
words, if the objective of the bill, which is to prevent victimization,
exploitation, merchandising and so forth, if that objective goes beyond, in
fact, the impact that it will have on one single individual, how would you
balance that and show to the court that the bill is unconstitutional?
Ms. Mahon: One of the objectives of the bill is to eradicate
prostitution. I think that's very clear when you read the bill. I think we
can also all agree this is not going to happen overnight. Even if I agreed
that this was an important or laudable objective, it is not going to happen
ever, much less in one day, five years, or ten years.
If a sex worker experiences violence at the hands of a client or is
forced into the profession as a result of these laws, if we can establish a
causation argument between what has occurred to that sex worker and the law
itself, and I would submit that the advertising provision in particular has
the possibility to engage section 7 in this way, what it means is that the
harm that's done to that sex worker bears no relationship whatsoever to the
stated objective of the bill, which is to eradicate prostitution in its
Even if I believed that prostitution was inherently degrading to the
person who practised it, why does that then have to put sex workers at risk
in the meantime? That is what I would ask you to ask yourselves.
Senator Dagenais: Ms. Mahon, do you represent Ms. Terri Jean
Ms. Mahon: I was a law student when Ms. Bedford brought her
constitutional challenge, so I was not counsel of record. However, I did
work for Professor Alan Young during my time at law school.
Senator Dagenais: The purpose of Bill C-36 is to protect women who
need protection because they are being exploited and subjected to violence.
That is certainly not Ms. Bedford's case. And Parliament does not intend to
prohibit her from doing what she does so well.
The objective of Bill C-36 is to protect our children, which does not
seem to concern her. For that reason, I have some issues with Ms. Bedford's
comments. That is all I have to say, and I am counting on you to convey that
message to her. Thank you very much, madam.
Senator McInnis: My question is for Ms. Benedet. When they ruled
on Bedford, the Supreme Court of Canada stated that it was
Parliament's role and responsibility to put in place legislation, and of
course they gave Parliament one year; and government, when drafting
legislation to be considered by Parliament, must do so with the belief that
the proposed law represents the majority of what Canadians want, and they
went through a number of consultations. Through Twitter, websites, they had
questionnaires out; they had direct contact with people who were interested.
This bill, they believe, reflects the majority view.
In addition, we were advised yesterday morning here that the minister had
advice from his Justice officials that this would meet the challenge. Due to
client-solicitor privilege, we weren't told, but we have to believe that's
So why now, then, should there be a reference to the Supreme Court of
Canada on any aspect of this law? Is that something that should be routine,
that if we disagree with proposed bills that are before us we should
willy-nilly say let's take it to the Supreme Court?
Ms. Benedet: Right.
Senator McInnis: The system I have in my mind is one that majority
government rules, and hopefully they will be responsible, and that's our
democratic system. Could you comment?
Ms. Benedet: Sure. Apart from those concerns, there are really two
kinds of references that we see. Typically in reference cases — if I think
of the same-sex marriage reference, reference on the mandatory imprisonment
in the Motor Vehicle Act — those were cases in which the evidentiary record
was really not in dispute. The legal issue was clear and it didn't require
an extensive evidentiary record to evaluate the constitutionality of
legislation. That's one type of reference.
There are other kinds of constitutional challenges that are very
evidence-intensive, and I'm thinking here about the polygamy reference,
which was a very unusual kind of reference because it started at the trial
court, not at the Supreme Court of Canada. Had you referred that polygamy
law directly to the Supreme Court of Canada, a reference wouldn't have
worked because there would have been no extensive evidentiary record about
the law's impact or the effect on people living in polygamist communities to
evaluate constitutionality. It just wasn't structured that way.
This bill is very much the same. The arguments that its detractors are
making are speculative based on what the impact of the bill will be once it
is enacted and it begins to be enforced. It will take quite some time, and I
think a look at multiple jurisdictions across Canada, in order to evaluate
that; so I don't understand what evidentiary record you could use if this
bill was immediately referred to the Supreme Court of Canada for a
constitutional challenge. You can't simply take an evidentiary record
created in 2005 and a bunch of studies dealing with the impact of different
laws in other countries and use that as your record for a constitutional
This, to me, seems particularly ill-suited for a reference to the Supreme
Court of Canada, just strictly on legal grounds.
Senator McInnis: I quite agree.
Senator McIntyre: Thank you both for your presentations.
Internationally the law treats prostitution in one of three ways:
decriminalization, prohibition and abolition, the Nordic model. I understand
that Bill C-36 is modelled after the Nordic model. Could you elaborate on
the similarities and the differences between Bill C-36 and the Nordic model?
Ms. Mahon, would you like to go first?
Ms. Mahon: One of the things this bill does that the Swedish model
doesn't is the prohibition on advertising, and I've mentioned this a few
times. I find this prohibition so insidious because if sex work is more
safely conducted indoors, and I think most of us would be hard pressed to
suggest otherwise, then the sex worker herself must have a way in which to
peddle her services, as it were.
Now, the bill does allow for that sex worker to advertise her own
services. If somebody else, on the other hand, is going to receive a
material benefit from it, then it is not allowed. The problem with that is
that as the years have gone by, the sex trade has moved more and more
online. I don't know if any of the senators had a chance to see it, but
there was a series of articles last month in The Economist on this
very issue. You can look at them online. They're quite illuminating,
actually. There are websites where a client can go and select a person they
wish to engage in sexual services with. The sex worker herself can verify
the identity of that client on those websites. There's some information
sharing that can enhance the safety of that relationship. The issue with the
advertising provision is that it would effectively prevent websites like
this from occurring.
If a sex worker cannot advertise her services in such a manner, then I
see no other choice but that she would be forced outdoors. We already know,
from the evidentiary record in Bedford, that that will create an
inherently more dangerous situation. As Ms. Benedet has already mentioned,
it is already the most marginalized sex workers who are on our streets
today, including First Nations women, transsexual women, impoverished women
and drug-addicted women. My answer to you, senator, is that it is this
advertising prohibition that makes it especially insidious to me.
Senator McIntyre: Ms. Benedet, do you wish to comment?
Ms. Benedet: Yes. First of all, the evidence in the Bedford
appeal was not that simply because prostitution takes place indoors, it is
safer. Even from the proponents of that argument, there was a recognition
that even amongst indoor prostitution, that certain kinds, for example,
escort prostitution, were much more dangerous and particularly risky. I want
to speak out against that constant assumption that just because something
takes place behind closed doors and out of sight, it is necessarily safe.
Numerous witnesses testified to violence, abuse and harassment that they
experienced in indoor prostitution, including Ms. Lebovitch herself. I think
it's important to recognize that.
This bill does track the basic approach of asymmetrical criminalization
that is used in Sweden, Norway and Iceland and is being considered in other
jurisdictions. It is different with respect to the continued criminalization
of women on the street in the limited locations near a school or a daycare,
et cetera. That remains, and that is a distinction from the model that we
see in other places where we have asymmetrical criminalization.
Many countries around the world, including countries that have
decriminalized prostitution, place significant restrictions on the
advertising of prostitution, and so we shouldn't assume that that is not a
feature of the laws in many places. I recall going to Switzerland a few
years ago. Coming out of the airport in Zurich, the first thing I saw was a
billboard with a free shuttle to the brothel. We should not assume that the
advertising of prostitution has no impact on the equality of Canadian women.
It does, when women are publicly treated as commodities for sale.
Senator Frum: I was going to ask a question to you, Ms. Mahon, but
I think you've answered it a few times already. You've asserted more than
once that you think this bill will make prostitution less safe after it's
passed than it is today. I'm not persuaded by the case. In fact, in the
example you just gave about the Internet exchange, we heard from at least
six or seven witnesses earlier today that having an Internet exchange with a
total stranger about his intentions is completely useless if his intentions
are to hurt you. I'm not sure I'm persuaded by that.
I would like to get Professor Benedet on the record and ask her opinion
about whether or not Bill C-36 will make prostitution safer than it is right
Ms. Benedet: In a sense, that's a little bit of a red herring.
Prostitution is fundamentally, inherently unsafe. Ultimately, the
prostitution transaction is concluded in private. We've heard repeatedly
about women in prostitution who have been deeply injured, violated and
killed primarily by clients and by pimps. That happens in indoor
prostitution. It happens on the street. None of that even speaks to the
harms of engaging in prostitution itself that many women in the case
testified to, the other kinds of harms that they experienced. It's important
to acknowledge those. There are some who will say, "That doesn't apply to
me. I'm not harmed in that way." If we're talking about the
constitutionality of legislation, yes, it's important to say that not every
single person has to be harmed before there's a violation. At the same time,
the government's legislative agenda doesn't fall, as a matter of
constitutionality, because they cannot prove that 100 per cent of those in
prostitution are harmed or harmed in the same way or exploited in exactly
the same way. You really have to look at this industry as a whole. Bill C-36
does give women in prostitution, in the large measure, the opportunity to
come forward and report acts of violence without fear of criminalization.
That's a safety-enhancing measure.
Fundamentally, prostitution itself is unsafe and harmful to women, so the
best thing that this bill can do is contribute to reducing the overall
amount of prostitution that takes place. That will make women safer. That's
what we believe for those who are underage. We don't think that they're put
at risk by criminalizing their buyers. We see that as exploitation, and the
criminal law has a role to play in decreasing the amount of that behaviour
that takes place, even if it can't eliminate it.
Senator Baker: I go back to some questions to the professor and
would note that the professor has made a great contribution to Canada in
this area of the law. I congratulate her for doing so. I have followed her
writings over the years.
I'd like to ask her, though, this important question that arose when the
minister and the officials appeared before this committee. They said
something that they did not say before the House of Commons committee. They
said that prostitution is de facto unlawful — that the act of prostitution
is illegal and unlawful, for the first time in Canadian history. The
minister and the official repeated this several times.
When a court looks at the intent of this particular legislation or the
object of the legislation, they will go to this committee hearing, and
they'll read what you said and what the minister and the officials said —
they usually do on Senate committees rather than the House of Commons
committees — and they'll arrive at a conclusion as to what the law really
Up to this point, if we agree with the minister and his officials, the
act of prostitution has not been illegal for the prostitute. De facto, it
may be illegal, but not in law. All of a sudden we now have an unlawful,
However, as you point out, the prostitute will have no fear of
prosecution under this particular bill because they are immune from
prosecution under proposed sections 286.2 to 286.4 because of 286.5. They
are immune from prosecution for an offence under those specific provisions,
but their actions are still unlawful and illegal, according to the officials
from the Department of Justice who appeared before this committee and
repeated it over and over — unlawful, illegal.
Do you have any concerns about the other sections of the Criminal Code
and other sections of law in the provinces that penalize unlawful acts?
There are various sections of the law that penalize unlawful acts. You could
have a conspiracy, section 464 of the Criminal Code. If you conspire to
carry out an illegal act with another person, then you are guilty of that
act if you're convicted. If it's indictable, it's the indictable offence
that the other person committed if you were involved in the conspiracy to
carry out an unlawful act. In provincial law, as we had pointed out earlier,
there are provincial laws for collection of proceeds of crime for unlawful
acts, although they're unlawful acts under the Criminal Code.
Aren't you concerned that, whereas the prostitutes will be immune from
prosecution under three specific provisions in this act, they are not,
anywhere in this, law immune from prosecution from all of the other
consequences of the law dealing with unlawful acts? Do you have any concern
Ms. Benedet: That's a very complex question, and I don't agree
entirely with your analysis of the risk of prosecution under other kinds of
statutes like conspiracy. It might take me a long time, more than this
committee has, to explain the nuances of that.
I will say I was surprised to hear the minister say, in such stark terms,
that Bill C-36 makes prostitution illegal, because of course prostitution
has two components: it has the act of the selling and the act of the buying.
In fact, it also has the profiteering, the pimping and the procuring. Those
need to be seen as separate and discrete acts.
There are other provisions in the Criminal Code in which we target only
part of a transaction or place more severe consequences on one party than
another. We charge people with charging a criminal rate of interest and not
with paying it, because we recognize a relationship of exploitation.
When the minister says that this bill makes, for the first time,
prostitution illegal, that is true to the extent that it makes it illegal to
be a john, directly and clearly. It is not true, in my reading of Bill C-36,
that it makes being a prostitute illegal, which was illegal in this country
until 1968. It was illegal to be a common prostitute, but I don't read this
bill as doing that.
It criminalizes, in a limited extent, engaging in prostitution in a
public place near a school, but otherwise does not subject a woman in
prostitution to criminal punishment for her prostitution unless she is
engaged also in pimping or the exploitation of others, and she'd fall under
one of the other sections.
That's really what's being done here that is different and distinct, and
I think that the language is a bit imprecise to say that this bill makes
prostitution illegal. That's not how I read it. It makes being a john
Senator Baker: I hope the judges pay particular attention to your
statement before this committee rather than the repeated statements by the
officials from the Department of Justice who were supporting the minister in
his analysis of the illegality of the act of prostitution.
Senator Batters: Professor Benedet, I would like you to give us
more detail about New Zealand. You made some comments before the House of
Commons Justice Committee about the applicability of the New Zealand model,
or a lack of applicability to our particular case in Canada. Could you give
us more of a perspective, given your considerable experience in researching
Ms. Benedet: Yes. I think it is important to look at that model
with some pretty careful scrutiny. I'm certainly not impressed by the
prostitution industry in New Zealand. But even if one were to look at that
and say, "Well, things haven't gotten worse," which is the best you can say
about it, you have to remember New Zealand has a small population and is an
isolated island. Its nearest neighbour, Australia, has also largely
legalized prostitution in most jurisdictions.
Canada is in quite a different position, being a small country right next
to the United States, which has mostly criminalized prostitution. We already
have a problem with prostitution tourism to some degree in this country, and
of course the legalization and institutionalization of prostitution would
only add to that, and I think you'd see quite a dramatic uptick in people
coming from other countries. In terms of demand, your demand would increase
not only from Canada but from places outside Canada as well. That's an
Another thing to understand about the model in New Zealand is that it was
highly contested there. It passed by a single vote when it was put into
place. It did not sweep in with overwhelming consensus, and it continues to
be highly contested.
We have these underground, small brothels that operate completely under
the radar. As it turns out, many of them are filled with foreign women who
have no status and of course fear being deported, and then big, industrial
mega- brothels zoned to other parts, in which women are treated like
commodities. To the extent that print advertising is permitted, you can get
discount coupons for extended time or extra services. It's a complete
commodification of women.
I can't see how that would be a model that Canada would want to emulate,
when the best that can be said by its proponents is, "We have no evidence
that violence has increased. It hasn't decreased either, but we have no
evidence it has increased under that model." That seems to me a pretty
impoverished response to the prostitution of women.
Senator Batters: Thank you for that perspective and for all your
work over two decades on this issue.
Senator Jaffer: When these hearings were taking place, I was very
interested in how you brought the equality of women as an issue. I always
wondered and now I have an opportunity to ask, because we both come from
B.C., did you consider also making the same argument for rights of
I'm not criticizing you. I'm just wondering if you thought about that,
and what were your reflections on that. More than women, we know issues for
Aboriginal women are even worse.
Ms. Benedet: That's quite right. You can see here how the
inequalities are intersecting, and amongst Aboriginal women, of course, that
inequality is magnified with high rates of poverty, with problems of
addiction and with disability. You have all kinds of intersecting
One of the documents that we invoked in our submissions to the court was
the United Nations Declaration on the Rights of Indigenous Peoples, which
specifically notes the right of Aboriginal women to live free from violence,
and that is part of Canada's international commitment to prevent violence
against Aboriginal women and girls.
That's a problem for indigenous women worldwide. Again in New Zealand,
where they've decriminalized prostitution, most of the women on the street
are Maori women. You have the problem of overrepresentation of indigenous
women in the worst forms of prostitution in other countries as well.
Senator Joyal: Ms. Mahon, you heard Professor Benedet comment on
the fact that it would be too soon to ask the Supreme Court to evaluate the
constitutional impact of the bill because we would not have enough proof or
evidence of its negative impact to be convincing to help the court properly
balance the objective of the bill and its practical effect.
Do you share that opinion, or do you think that there are enough
evidence-based elements that could be brought forward to the attention of
Ms. Mahon: I actually do share that opinion with Professor
As I mentioned, our record in Bedford was 88 volumes, and that
took substantial time and effort to put together. Rather than bringing a
reference immediately to the Supreme Court, there are other options: We
could not pass this bill; amendments could be made to it; or some provisions
could be struck or altered so as to bring it in line with the Constitution,
and that is what I would suggest.
Senator Joyal: In the context of the experience you have had with
the Bedford case, what would your approach be in relation to the
constitutionality of the clauses that you feel are in breach of section 7?
You've mentioned some in relation to the advertisement. Are there other
clauses of the bill that you feel are in breach of the same provisions?
Ms. Mahon: Yes, the clause that reproduces the previous
communication provision with the added proviso that it will be illegal when
done in certain proximity to places where children can reasonably be
expected. I believe this provision to be overbroad in the extreme and also
vague because it's very hard to determine exactly what that means.
As the legislative summary points out, if someone is in a park at 3 a.m.,
does that then run them afoul of the criminal law? Are children reasonably
expected to be in such a place at 3 a.m. if they do habitually frequent that
park? These are some of the questions I would ask myself if I were bringing
this constitutional challenge.
Senator Joyal: Are there other sections besides 213(1), which you
just referred to?
Ms. Mahon: I would strongly suggest not criminalizing the purchase
of sex. I have a very hard time viewing someone who is purchasing sex from a
consenting adult as a criminal. As I mentioned earlier, I do feel it will
reproduce many of the harms that the former communication provision did.
Other witnesses who have appeared before you have spoken to that and I would
echo their sentiments.
Senator Joyal: On what basis do you feel that criminalizing the
purchase of sex from a consenting adult in the context of section 286.5,
which is essentially somebody who on their own will is offering sexual
services as a consenting adult with no pressure, no john, no pimp, no
third-party interest, but somebody operating on their own, would run afoul
of section 7 of the Charter?
Ms. Mahon: It would depend on what type of evidentiary record was
created after these provisions were passed. My suspicion is that such a
thing will force sex workers to conduct transactions very quickly and in
places out of the public eye, which will increase the risk to the safety and
security of the person. If it did have that effect — if I'm correct and I
hope I'm not — then that would be grossly disproportionate to the stated
objective of the bill. So I would submit to you that it would run afoul of
that particular aspect of section 7.
Senator Joyal: It seems to me that if we are taking as primary
evidence that prostitution is exploitation of women, it's an unequal
relationship. I have had some reflection on the basis that a consenting
adult who is free of mind, as I said, not coerced by a third party, doing
that willingly and quitting when she wants to quit, or he wants to quit,
would be somebody who would be a victim in the context of the preamble of
the bill. There is no doubt, in my opinion. We have heard ample evidence to
show that many of the persons who are involved in prostitution are victims
in some sort of systemic way. We have heard from the Aboriginal people. We
have heard from people who are refugees or new immigrants and so forth. We
know those groups of people. I think every one of us understands that very
But in relation to one adult, as I said, who is free of coercion, that
that person is a victim within the objective of the bill, I think that in
that way the bill fails to recognize other elements that the court would
have to ponder to come to the conclusion that the purchase of sex in that
context is degrading, humiliating and so forth, and harmful and all the
stigma that we know might be attached to prostitution. I'm not denying them
at all, but I'm just trying to understand, in fact, if the preamble would
save all the situations, especially the one I've just described.
Ms. Mahon: If I understand you correctly, senator, you're asking
what the constitutional infringement would be for the person who was
exercising a freely made choice in that. Well, it would bear no relationship
to the stated objective of the law. If Bill C-36 takes as its fundamental
premise that sex workers are inherently exploited by their conduct and yet
we have witnesses before you saying quite the opposite, for some of them,
then it bears no rational connection to the law whatsoever, which is the
test under section 1, not under section 7.
I think the issue of choice may be a red herring in this. To me it
doesn't matter so much if someone is exercising a choice or not if both
groups of people are subjected to harm as a result of this law. I think
that's what we need to be mindful of.
I don't know if that answers your question.
Senator Joyal: It is important because they are nuances that
could, in fact, be in front of the court. I would think it's more within
those nuances that the court will be called to adjudicate than on the
clear-cut cases of exploitation by a third party and so on. Those are too
simple. They're not really the cases normally that will go to the court. The
cases that will go to the court are those that define themselves at the
limit of the logic of the act, or the provisions that are under challenge.
That's why I think the logic that this bill enshrines has to survive, in my
opinion, all the situations, on the basis of what the court has said in
paragraph 121, which you yourself have quoted. Suffice it to say that one
person's safety or security is infringed to have the law fail. That's why I
think it's an important element of reflection in relation to the practical
future of that bill. That's why I wonder if the preamble is wide enough to
cover that specific situation.
Ms. Mahon: I quite agree with you, senator, that there is a
problem with it. If people can stand before you and tell you that they are
exercising a choice, I believe, out of respect for equality, that we need to
take them at their face value. Are we assuming that they're incorrect, that
they cannot assess their own life situation, that they don't actually have
autonomy, even though they believe they do? Actually, I think that's a
degrading way to treat women and to treat all sex workers. So I think you're
quite right that those nuances are incredibly important to reflect on, and I
would ask you, senators, to reflect upon that as you make your decisions.
The Chair: I will thank both our witnesses for participating in a
very interesting session. We very much appreciate your contribution to our
For our final panel today, I would like to introduce the witnesses:
Valerie Scott, Legal Coordinator, Sex Professionals of Canada; Trisha
Baptie, Community Engagement Coordinator, EVE (Formerly Exploited Voices now
Educating), who is joining us via video conference; Gwendoline Allison,
Lawyer, Foy Allison Law Group, as an individual; Georgialee Lang, who is
also a lawyer. We had hoped to see her with Ms. Allison. As of this moment
she has yet to arrive, but she may join us during the proceedings.
We will begin, Ms. Scott, with an opening statement. The floor is yours.
Valerie Scott, Legal Coordinator, Sex Professionals of Canada: The
Supreme Court of Canada struck down three prostitution laws because it found
that they violated the constitutional rights of sex workers to security of
the person. Canada had an opportunity to finally get it right, to take a
fair and balanced approach to the regulation of adult sex work. Instead, the
Conservative government chose to introduce Bill C-36, the stated aims of
which are to eliminate prostitution and protect prostitutes from harm. We
urge you to reject this legislation, as it will do neither.
The debate about Bill C-36 has been hijacked by individuals and groups
who have focused on the evils of human trafficking and child exploitation.
However, none of those laws were challenged and none were affected by the
Supreme Court decision. This deliberate misdirection has taken the focus off
what we should be discussing, which is how the proposed law will affect
consensual adult sex work.
Two of the newly created offences that are particularly dangerous to the
security of sex workers are those that prohibit the purchase of our services
and advertising those services. This legislative approach, criminalizing
clients and treating sex workers as victims, is being sold as a kinder,
gentler way of eliminating our occupation. It is often referred to as the
Nordic model, but we need look no further than Montreal and Vancouver to see
its real effects.
In 2001, the City of Montreal adopted a version of the Nordic model.
Police exclusively targeted clients for arrest. During the three-month
period following the crackdown, Stella, a Montreal sex worker rights
organization, documented a threefold increase in violent attacks against sex
workers and a fivefold increase in attacks with a deadly weapon. In 2013,
the City of Vancouver made the Nordic model their official policy, although
it had been their practice for five years. Last June, the BMJ Open
reported that the result of this Canadian experiment to criminalize clients
was to expose sex workers to health and safety risks. This happened because,
to avoid police detection, sex work was displaced into isolated areas. Time
for screening and negotiation was practically eliminated and workers were
unable to access police protections.
The harms identified in both Montreal and Vancouver mirror the harmful
conditions created by the laws that were challenged by Amy Lebovitch,
Terri-Jean Bedford and me in the case known as Canada v. Bedford. It
is clear that it doesn't matter whether you criminalize the sex worker or
the client, the results are the same. Criminalizing the purchase of sex will
create the same devastating harms as the old regime.
At this time, the majority of Canadian sex workers work indoors.
Criminalizing the purchase of sex and banning advertising is very likely to
force more clients and workers onto the street. The street will be legally
the safest place to work, while physically being the most dangerous. Clients
will want to be anonymous, and a moving target. They will not identify
themselves to us. We will lose the home field advantage because an in call
at a sex worker's location will be seen to be too risky; she could be a
police officer. For the same reason, a cautious client will not want to risk
directly inviting someone to his home or hotel room. Working indoors will
require a go-between — someone to make the introduction. By banning
advertising and criminalizing our clients, Bill C-36 will make us dependent
on people who are willing to risk lengthy prison sentences. These are not
usually nice people. Independent sex workers, those working for ourselves,
will become increasingly rare.
After the Supreme Court ruling, we were hoping to be able to implement
occupational health and safety rules, labour law protections, and work with
the Canada Revenue Agency and develop pension plans. We can all forget that
under Bill C-36, because Bill C-36 is based on legal moralism and the
politics of disgust. An entire group of Canadians who are working in what is
still a legal occupation will once again be forced to work on the run and
under the gun, simply because we have consensual adult sex outside of
proscribed family value settings.
The authors and supporters of Bill C-36 erroneously believe that women
cannot, of their own free will, consent to having paid sex. They believe
that women are simply not mentally equipped to make that kind of choice.
Adult women must have the right to say yes as well as the right to say no.
We urge you to reject Bill C-36 because it will cause considerable and
catastrophic harm to sex workers and it will not meet its stated aims.
Please don't make us wait for another body count.
Gwendoline Allison, Lawyer, Foy Allison Law Group, as an individual:
Thank you for giving me the opportunity to speak today. I am a lawyer
with 19 years of experience in the field of employment law and human rights
law. I have advised a number of women's groups since the outset of my
career, and some of my clients will speak with you this week. My most recent
work has centred on the implication for employment-related laws should
Parliament decide to decriminalize the purchase of and profiteering from sex
or should Parliament decide to do nothing.
My particular focus is a consideration of those laws in relation to the
Supreme Court of Canada's concerns for the safety and security of those
engaged in selling in prostitution and the recognition that the primary
source of danger to those in prostitution are those who buy them and those
who profit from the sale of sex.
I recognize that most employment-related laws fall within provincial
jurisdiction and are outside your jurisdiction here. I have been engaged
with both federal undertakings over my career and provincial undertakings.
In my presentation today, I will speak to you about what that means to you,
and I'm happy to answer any questions you may have with respect to this
being a workers' rights type of issue.
I will recognize the gendered nature of prostitution, as did the Supreme
Court of Canada when it used the pronoun "she" to talk about those in
prostitution. I reject the contention that prostitution is work but do not
tend to focus my presentation on that point. I agree with my clients that
prostitution is a form of violence and a practice of sex inequality and
In the Bedford case, I was co-counsel for Asian Women Coalition
Ending Prostitution, from whom you heard yesterday. You heard today that
there were 25,000 pages of evidence and 88 volumes, and one line in all
those documents was about the experience of Asian women in prostitution.
That one line was from the affidavit of a police officer that women in bawdy
houses were often illegal immigrants and that residential brothels contained
mainly Asian women.
You heard yesterday from the Asian women about the experiences of Asian
women in prostitution and the effects of racism and racist stereotypes on
Asian women in general.
When you heard those presentations yesterday, you probably heard more
evidence than the Supreme Court of Canada did in the Bedford case
about Asian women and prostitution. Those experiences were not before the
court in the Bedford case.
There are three main points to consider in my opening statement. First, I
agree with almost everyone who has spoken that the continued criminalization
of women who sell in prostitution will impede their ability to exit. I say
that as an employment lawyer and knowing the effects that a criminal record
will have on a woman being able to find gainful employment and move on. In
that regard, I support those who call for reconsideration of proposed
I have several concerns with labour employment laws. First, you need an
employer, and the existence of an employer is not a given in the
prostitution industry. Second, even if there's someone against whom you
could enforce rights as an employer, you have to be an employee to get those
rights. That's also not a status that's obviously conferred on those in
To determine whether a person is an employee or an employer is a
fact-by-fact dependent case. There are four tests on how it has happened and
it is done on an individual basis. When Diane Matte was talking about the
section 7 approach and the need for a collective approach, the labour and
employment position is an individualist approach.
There's also an element of control. One subordinates one's own will in an
employment relationship. I show up for work. I get paid. I do what I'm told.
That's the essence of an employment relationship, which doesn't translate
well into prostitution.
The end result is that some women may be protected, but the vast majority
of women will likely not be. In the regimes that I have considered, most of
the women are independent contractors, independent businesswomen. That's the
state in the bunny ranches of Nevada, the mega-brothels of Germany, the
red-light district of the Netherlands and even in New Zealand, where the
vast majority of women are independent contractors.
With respect to the human rights element of it, my view is that human
rights laws will not protect those in prostitution. Prostitution's very
existence as a legal enterprise may require exemption from human rights law.
It requires an acknowledgment that paid sex or requiring sex can be a
condition of employment. That's something that is unlawful under human
rights legislation. For women in prostitution, they are therefore separated
as a class and accorded lesser rights. Demand is inherently discriminatory
if you are female, young, sometimes Asian, based on Asian stereotypes and
other racial stereotypes.
The question is whether those can ever be lawful under human rights
provisions. I say they cannot ever be. Prostitution, under the guise of
protecting women's human rights, actually requires them to be exempted from
or limited in their human rights protection.
I also have comments to make with respect to occupational health and
safety standards, but I will reserve those for any questions you may have.
The Chair: Thank you. Ms. Baptie, do you have an opening
statement? If you do, please proceed.
Trisha Baptie, Community Engagement Coordinator, EVE (Formerly
Exploited Voices now Educating): I just want to start off by
acknowledging the fact that I'm here in Vancouver on unceded Coast Salish
territories. I'm here today as a representative of an organization called
EVE, formerly Exploited Voices now Educating. We are a volunteer, non-
governmental, non-profit organization comprised of former sex industry women
dedicated to naming prostitution violence against women and see its
abolition through political action, advocacy and awareness raising that
focuses on ending the demand for paid sexual access to women and children's
I am here not only because of my group's vested interest in this, but
because I also have a 15-year history of prostitution. I was prostituted
from the ages of 13 to 28. The last 10 of those years were in Vancouver's
Downtown Eastside, where I would make some of my dearest friends, and where
I would also lose some of my friends to Canada's notorious serial killer
I had no idea at 13 years old I would be trapped in prostitution for the
next 15 years, working indoors and outdoors, working licensed and unlicensed
venues. At no point in time would I have said that I consented to the abuse
I suffered. Consent was not freely given. It was given because of the money
the man I was with had and the desperate situation I found myself in. Like
so many other women and girls who find themselves in that circumstance, our
choice was not freely given. It was a constrained choice, choice between my
kids eating or not, and to me at that time, that was no choice at all.
Money does not equal consent. It alleviates a dire situation, whatever
that situation may be, like feeding children, addictions or rent, but it
does not equal freely given consent. Whatever the reason we found ourselves
out there, men took advantage of that inequality, that desperation, for
their own sexual gratification, and they used their money to appease their
We were encouraged to open and read Bill C-36 and have the first section
of the summary deal with this exact behaviour. We were encouraged to read in
the preamble words like "concerns about the exploitation that is inherent in
prostitution and the risks of violence." Another one was "recognizes the
social harm caused by the objectification of the human body and the
commodification of sexual activity" — an acknowledgment that prostitution is
a system based on inequality."
I also want to make it very clear: It was never the laws that beat, raped
and killed me and my friends; it was men. It was never the location we were
in that was unsafe; it was the man we were in that location with that made
it unsafe. That is what we need to remember and have our laws reflect. We
are glad to see that this behaviour will no longer be tolerated.
Canada, in passing this legislation, will be setting a precedent for how
men treat women, creating a new social fabric which our men and women will
grow up in, one that clearly says women and girls are not for sale. For if
we stand in agreement with prostitution and with the male privilege to
purchase sex, we would effectively be saying that we will always have a
section of women who will be offered up for sale, which would go against the
preamble of the bill that notes prostitution disproportionately impacts
women and girls and usually our most vulnerable and racialized women.
We do have concerns, though, about this bill, and it is the part about
the communicating, section 213. We believe that because the demand for paid
sex is already criminalized, there's no reason to criminalize the sellers of
sex. If, in fact, the government wants to encourage those who engage in
prostitution to report incidents of violence and leave prostitution, as
stated in the preamble, the sellers of sex should face no fear of
criminalization at all. It is already decided that it is the purchaser that
is committing the crime, so there is no need to criminalize the sex seller.
We also fear that part of the law can be used against women by the
community to unduly target them when it has already been addressed in the
bill that, in fact, the prostituted are the ones we must be helping and
supporting, not targeting with any criminal sanctions.
We see Bill C-36 as a legacy. Standing up to men's constant demands to be
able to have sex on their terms at all times is a step forward in women's
equality and women's safety. I would also go so far as to say it is not sex
they want, as sex is something that is mutually pleasurable. When men pay
for sex, it is all about them and has nothing to do with the person inside
the body that they are using.
If it is the passing of laws that sets the standard in which its citizens
want to go, what do we want to do? Give men free rein to ask women if
they're for sale? Legitimatize pimps into businessmen? Give organized crime
even more of a reason to come to our country? Or do we want to send a
message that we value our women and we will not tolerate this gender
The Chair: Thank you.
Senator Baker: Welcome, guests and presenters here today. You have
made excellent presentations, each one of you. Congratulations to Valerie
Scott for the long battle that you have engaged in in the courts over such a
long period of time.
I would like to ask a question relating to the communications section,
213. Before I do, I congratulate Gwendoline Allison as well for her many
appearances before the Human Rights Tribunal and the Employment Standards
Tribunal of British Columbia in the past year and to congratulate you on the
excellent work you are doing.
Every organization that has appeared before the Senate committee
examining this bill recommended that we repeal proposed section 213, the
communicating section of this bill, that it doesn't belong there. Now, most
of the organizations who have appeared, I believe most of them have said,
"Well, we still like the bill, but we would like that section amended and
taken out because you are criminalizing the act of prostitution, you are
criminalizing the seller," which was not supposedly the intent of the
government because the minister and the officials stated categorically
before this committee that that was not their intent. Their intent was to
criminalize the purchaser.
Is each one of you recommending to the Senate that we deliver a message
to the Government of Canada that in this bill, this section regarding
communicating, 213, be removed? Is that what your suggestion is to the
Senate committee? Each one of you, please.
Ms. Scott: I would say yes, but it doesn't make a great deal of
difference whether you're criminalizing the purchase or the sale. It's still
going to create dangerous conditions.
For example, a woman working out of her own location, she's going to be
victim to the police barging in to find her client and ransacking her place,
looking for condoms as evidence, things like that, and clients not wanting
to identify themselves to us. They will want to be anonymous. That's a gift
to sexual predators, pretending to be clients.
Both of them are bad. The criminalization of selling sex and the
criminalization of purchasing adult sexual services are equally bad.
Senator Baker: So you're suggesting we should amend not just the
provision relating to communication but the provision relating to the
issuing of warrants under this bill, which would issue a warrant for, say,
listening devices or whatever in somebody's apartment.
Ms. Scott: That would be a first step, yes.
Ms. Allison: As I stated, I would prefer that section 213 wasn't
there. The continued criminalization of women harms their ability to exit
meaningfully into an employment context.
In my submission, I raised the issue of the Criminal Records Review Act
of British Columbia, which is the province in which I'm called, that states
that criminal records checks are required for certain jobs and positions.
Some of those positions are in places like hospitals and schools, where
women who are exiting prostitution may find work that is useful to them.
They have skills they can develop there and work with social services or
agencies. There's a bit of a natural draw there. Criminalization would
impede their ability to find meaningful work.
Senator Baker: You can apply to have those records expunged, but
your point is excellent.
Ms. Baptie: I want to say something. You just mentioned about
getting your records expunged. That's a lengthy and expensive process that
makes it prohibitive for a lot of women who are exiting prostitution.
Senator Baker: It does.
Ms. Baptie: We would like to see section 213 taken totally out,
because we know that it will mostly be used against women who are involved
in street-level prostitution. It's decided in the preamble of the bill that
they're the most vulnerable and marginalized who deserve our help, not our
condemnation and not have impediments thrown at them to exiting
Senator Batters: Thank you, all of you, for coming here today.
Ms. Scott, in the Supreme Court of Canada's Bedford decision,
there's probably a couple of pages that are basically a little biography
about you, as well as a couple of the other people who were bringing this
particular lawsuit. In there, the Supreme Court of Canada has this quote
about you, saying that if your challenge is successful,
. . . Ms. Scott would like to operate an indoor prostitution
business. While she recognizes that clients may be dangerous in both
outdoor and indoor locations, she would institute safety precautions
such as checking identification of clients, making sure other people are
close by during appointments to intervene if needed, and hiring a
From that quote from the Supreme Court of Canada, you want to have the
legal ability in Canada to profit from the sale of others' sexual services.
Ms. Scott: Yes, I do. There's absolutely nothing wrong with it as
long as it's done completely consensually. I would not impede women and men
— because I don't intend to have just female workers; largely transgendered
and male sex workers have been ignored in this debate. But I would not
impede them from, if they wanted, forming a union.
Senator Batters: Ms. Baptie, when you testified and offered some
very powerful testimony in front of the House of Commons Justice Committee,
Laws set a trajectory in the way we want our country to go.
So if we criminalize the purchasing of sex we are changing the
trajectory in the way this country is going and saying men can no longer
sexually subordinate women any longer for their own benefit.
Given that quote, I assume you agree with Minister MacKay when he says
that Bill C-36 is a total paradigm shift in Canada, when we have as the
objective of this legislation to protect exploited women and children and
our communities and not simply to minimize nuisance or anything like that.
Ms. Baptie: Yes. I think the bill asks a very different question
than is typically asked. I think the typical question asked is about women's
choice and safety, but this bill questions whether or not men should be able
to purchase sex. I think in asking that new question, we are looking at it
from a different perspective and realizing the inherent oppressive nature of
Senator Jaffer: Thank you very much for all your presentations.
Ms. Scott, I respect your tenacity in bringing this case, and what it has
done is gotten us all thinking about this difficult, complex issue, and
obviously about the protection of women and children.
My first question is to Ms. Allison. We both come from B.C., and I know
of your work. You have done a lot of work on human rights. By working to
understand this issue better over the summer, one of the arguments that I
heard all the time — and I'd like to hear your opinion on it — is the rights
of sexual workers, the right to practise what they want and the right to
choice is their human right. The first time I heard of it in this manner,
and I'm going to put to you the way I heard it, which is that women have
fought very hard to have a right to decide on whether they should have an
abortion, and it's the same kind of right for women who want to be in this
business. I'd like to hear what you have to say on that.
Ms. Allison: That's somewhat outside the human rights legislation
we have. There's no right to any kind of vocation within human rights
legislation. The rights under human rights legislation are to be free from
discrimination on the grounds of sex, country of origin, sexual orientation,
in both the provision of services, in employment, in advertising of
employment. The right to choose a profession of any kind is not a right
that's recognized for anyone in particular.
Outside that, I've heard the context of a human right. I have never seen
a human right to engage in sexual services being recognized by any
government other than the Government of New Zealand, who recognized it that
First of all, I would say that it's not a human right that's recognized
in Canadian law. Second, it's a political view, and the view that you've
heard from many in the rooms is that prostitution is a form of violence and
sexual subordination and is not a matter of choice. I think those are two
competing views that would have to be reconciled.
I don't know if that answers your question, but certainly within the
provincial human rights or even federal human rights legislation, there's no
right to any particular vocation.
Senator Jaffer: Ms. Baptie, we both come from Vancouver. Over the
summer I visited a number of times WISH, a place where women can go 24 hours
to have a safe place. I don't know if these exist in other provinces, but I
would like to hear from you about what kind of programs could be put in
place, especially when women are trying to exit or find another way of
living. What more can be done to help women?
Ms. Baptie: I think one of the first things we can do to help
women not only on a provincial but also on a federal level is to come up
with a guaranteed livable income. At the root of so many of the issues that
surround prostitution is poverty, particularly women's poverty. Prostitution
is the sexualization of that poverty. So coming up with a guaranteed livable
income is one of the first things we can do.
Another thing is to have more places for women to go who are exiting
prostitution, like recovery centres, detox beds, on-demand detox beds. Right
now the average wait to get into detox, at least here in Vancouver, from
what I understand, is a week to two weeks, and that's just unacceptable.
We also need access to centres that can help us find other employment or
get us into programs where we can get certificates that either move us into
higher education or move us into a job that our skill set, our personalities
I think a lot of programs need to be funded to help women exit
prostitution. We need to be very aware as well, when we're talking about
prostitution, that it's the only "job" that you need to have exiting
services for. Nurses don't need exiting services. Cooks don't need exiting
services. It's particularly prostitution that needs exiting services, and
it's because of the trauma that women are exposed to within prostitution,
that marginalizes them from the day-to-day workforce.
Senator Dagenais: My question is addressed to Ms. Scott and Ms.
Allison, whom I listened to attentively. I come from the province of Quebec.
I was a police officer in Quebec for several years, and at a certain point,
the police were deploying what was known as Operation Scorpion, set up by
the police because street gangs were recruiting adolescent girls and boys in
schools and promising them the good life. Some were drugged and forced into
prostitution in Montreal or Toronto. Of course the parents turned to the
police to find these young people. We only found some of them, and they were
in a lamentable state.
If only to protect those young people, is Bill C-36 not worth it? In
cases like that, we are not talking about organized people who want to do a
job, but about young people who were being recruited by street gangs that
drugged them. They promised them the good life, but unfortunately, that did
not happen because obviously the money went to the street gangs. I would
like to hear your opinion on that.
Ms. Scott: In Bedford, we did not challenge any of the
human trafficking or child sexual exploitation laws. All of those laws
remain on the books, and I think that they should, and they should be used
specifically against the situation that you just described. It's horrendous.
But what we're talking about here is consensual adult sex, and that's a very
different thing than human trafficking and child sexual exploitation.
Senator Dagenais: But you will understand that the bill aims to
criminalize the people who were recruiting them — that is to say street
gangs at that point. They were acting among other things as clients and
Ms. Scott: I don't understand that. You're saying the pimps were
Senator Dagenais: The purpose of the bill is to criminalize the
clients; that is what we said. If I am a member of a street gang and recruit
an adolescent, drug him and send him out to work for me and collect money
for me, Bill C-36 indirectly covers that, as well.
Ms. Scott: You don't need Bill C-36 to criminalize that. There are
other very heavy laws on the books to deal with child sexual exploitation,
forcible confinement, assault and administering noxious substances. For
example, the avails law section 212 has nine subsections to it. We only
challenged one: living wholly or in part on the earnings. We did not touch
the other nine. So under that other nine, this gang you speak of could be
shut down, and should be shut down.
Then you have the child exploitation laws that could also be used against
them. Human trafficking, I think the maximum sentence for that is life
imprisonment. All of those laws are still on the books. You don't need Bill
C-36 one iota to go after those people.
Senator Dagenais: I will conclude by saying this: among other
things, the bill aims to protect the women and adolescents who are being
exploited. That is the aim of the bill. Its focus is not necessarily those
who are organized. There has even been discussion of immunity for those who
work in prostitution and are organized. In a way, even if only for those who
are being exploited, women and adolescents, I think that Bill C-36 is very
Ms. Scott: I don't think it's worth it at all to put other people
at grave, considerable and catastrophic risk when you already have a
multitude of laws on the books that can take care of the violent and onerous
situation. I don't see why it's necessary to implement a law that will cause
considerable and catastrophic harm to others when you have plenty of laws to
deal with all kinds of situations like you've just described. They're not
slap-on-the-wrist sentences; they're very serious.
Senator Joyal: Ms. Scott, since the unanimous decision in the
Supreme Court that you won last December 2013, what has changed in your
business since then, since that section of the code was thrown out by the
Ms. Scott: Not much because of the stay order from the Supreme
Court; and then with the introduction of Bill C-36, everyone is in a
wait-and-see mode. But right after the decision, sex workers were happy. We
were flooded with emails and phone calls from around the world, actually.
People felt like citizens. We felt like real Canadians, for the first time.
It was, I remember, just joyous. Then we began hearing all of the
prohibitionist rhetoric in the press and the introduction of the new bill,
and it just went back to where it was. You would think we had lost the case.
Senator Joyal: You, as an adult, I understand, have not been
coerced to offer sexual services, from your past experience.
Ms. Scott: No.
Senator Joyal: You didn't say it, but I presume that you willingly
entered into that kind of activity —
Ms. Scott: I did.
Senator Joyal: — on your own will without being coerced by a third
party or somebody who forced you to exercise those activities?
Ms. Scott: Yes, and there are many more like me. I don't want to
say it was — speaking for myself now — a calling or anything, but I knew
from a very young age that I wanted to be a sex worker when I grew up. I
didn't know sex existed. It was a different era. We didn't have Internet or
cell phones, but I wanted to be one of those women that I saw on television
on those old western movies. They were saloon girls; that's what I wanted.
Senator Joyal: But if this bill passes as it is written, if your
customer to whom you are offering your services is criminalized, if you want
to remain in that activity, you will have to find ways to make sure that
your customers won't get caught. In other words, you will be pushed to
imagine all kinds of scenarios to bypass the legislation.
Ms. Scott: Yes, and it will not be safe. I can't see how we can do
this in any safe context. Clients are going to be too afraid to identify
themselves to us. Right now, a client is screened. I have to know and be
able to verify his first and last name. I have to know either where he lives
or where he works. That has to match up on Canada 411 or some way, like
through his employment, and clients will certainly not do that under Bill
C-36. They may with me because they know me, but not with other women, and
the onus will be on us to protect our clients from arrest.
I also foresee that when police barge in, kick in the door and arrest our
client that we will be compelled to testify against our own client in court.
If we do not, we will be held in contempt of court.
Senator Joyal: In other words, it will put you in a situation
whereby the pressure that will be put on you for offering legal services,
because you have immunity of prosecution in the bill will, in fact, trigger
a whole situation where you can find yourself in breach of the law in other
sections of the Criminal Code if you don't cooperate with the police to
denounce your customer. You are put into the almost impossible position
whereby, to save you from a criminal record that you won't have because you
offer sexual services, you could be found obstructing justice or obstructing
police work and so forth if you are not part of the legal proceedings that
will be brought forward against your customer.
Ms. Scott: That's right. That's why I say it doesn't matter if you
criminalize us or you criminalize the client. The effect is the same.
Senator Joyal: But as was stated around the table, the bill seeks
to eradicate prostitution. That's the stated objective, and to stop the
exploitation of women — we have heard, of course, many witnesses in relation
to that — as other witnesses have mentioned, to avoid sexualizing poverty,
marginalization and other social problems that some Canadian women
especially might face. Don't you agree that you should subscribe to those
objectives of Canadian society?
Ms. Scott: I do not believe that women or men or transgendered
people have to be exploited to be in this business. The exploitation comes
from being forced to work under extremely dangerous conditions. It is like
saying women seeking abortions, when it was illegal, they went into these
backstreet abortionists and they had dangerous abortions, they bled to
death, but that wasn't the law that did that to them, no, they did that of
their own volition.
Well, you can't say just because the clients are bad or the police are
beating us up it's not because of the law. The law creates it. The law sets
it up and then says, "No, no, it is not us." You can't get away with that.
People have to own up.
So, no, I do think that with proper employment and labour law
protections, and this is true that there are no occupational rights in human
rights legislation in Canada, I think that should change. I don't think that
it is right or proper that a landlord, for example, can put an ad in the
paper saying one-bedroom apartment for rent — no nurses, bus drivers or
senators may apply.
I think for a legal occupation there should be some kind of human rights
Senator Plett: Senator Baker congratulated you, Ms. Scott, on your
successful battle. I find it a little difficult to do that, but I will say
Canada owes you and Ms. Bedford a debt of gratitude because, as a result of
what you have done, we will now probably have a better prostitution law in
place than we did prior to the battle. I am certainly hoping this bill will
pass so that we have that.
My question will be for Ms. Baptie. Again I will use Senator Baker in my
preamble. I don't want to put words in his mouth because I know that he will
search the records and correct me if I'm wrong with this, but I believe he
has alluded to the fact that almost everybody, maybe he even said
"everybody" a few times, that we have heard here would like to see section
213 of this bill taken out. I don't recall that it was everybody. I think
many did, but not everybody.
You did say that you would also prefer for it to be taken out, but we
heard from witnesses earlier today. Ms. Crack, I think used the words "99
Ms. Scott: I did not.
Senator Plett: Ms. Crack. You weren't here, ma'am.
Ms. Scott: Oh, sorry, my apologies.
Senator Plett: Ms. Crack in an earlier witness panel said 99 per
cent of this bill was good and that she would certainly support it based on
99 per cent, even though she would prefer that maybe there was another
My question to you, Ms. Baptie, is would you also agree that even if 213
isn't removed there is enough in this legislation that you would support and
that you would maybe go as far — you may not want to use percentages, but
certainly this is a move in the right direction? Further to that, give me
your opinion on whether you believe that the majority of the women, and Ms.
Scott has at least referenced the women that she's been involved with, have
choice. The people that you have been involved with, have they also had
choice, or have they been coerced and pushed into prostitution?
Ms. Baptie: That's a lot of answers. I will try to do it quickly.
I don't want to give a percentage on how much we support the bill or not. I
think we definitely support the preamble, and we like, I guess, the spirit,
if you will, or the intent, if you will, of the bill, which is to go after
and criminalize and change male behaviour. The women that I know that are in
my life, I would say there's some that are absolutely there out of coercion,
and that I think has a continuum on it.
But I am not really here to talk about the women. I think I have
mentioned that before. I'm really here to talk about changing male behaviour
because the male behaviour relies on women's inequality and it relies on
women being in circumstances where they need to provide for themselves or
others in a way that perhaps they don't want to; and as long as we keep
allowing men to purchase sex, we're always saying that we will have a
segment of women who are available to be sold.
Where are we going to find those women? Who are those women? That's the
conversation I think we should be having. It is the most vulnerable, the
most marginalized and the ones that we need to be protecting that usually
will find themselves involved in prostitution.
Whether a woman is coerced into it or whether she's there by choice, I
still greatly applaud the fact that the bill, the preamble, and I guess the
intent, to use that again, if you will, is to change male behaviour. Just
like with domestic violence, just like with rape, it's a behaviour that's
been with us for a long time, but that doesn't mean that we have to stand in
agreement with it. We can actually demand men change their behaviour and
allow women to live in a society where they have more freedom to operate,
more freedom to be integrated more fully into society and not live at risk
of male predatory behaviour.
Senator McIntyre: Ms. Allison, in the Bedford decision, the
court made it clear that in order for any new laws to comply with the
constitution, they must prioritize sex worker safety. We all agree on one
thing. We all share the desire to see women safe and protected. Although we
disagree on how best to do that, protecting sex workers is a key for all.
In listening to your presentation, I understand that you would like to
see changes regarding work conditions and human rights for those in the sex
industry. On the issue of sex worker safety, the objectives of C-36 are
clear: protecting communities, protecting sex workers and reducing the
demand for sexual services. Are you satisfied that C-36 fulfills those three
Ms. Allison: My perspective on this is that in the absence of
C-36, you will have a patchwork of provincially regulated laws across
Canada, and the question that you have to decide at this point is whether
those laws are good enough that you can pass on C-36. If you give up Bill
C-36, with or without amendments, that's what will happen. It will devolve
to the provinces and to local governments. The issue, maybe switching it
back, is are you convinced that women's safety and security, the safety and
security of the most marginalized women, most vulnerable women in Canada,
will be protected by this patchwork where there are no specific laws in
place to protect them from that harm.
I'm satisfied that C-36 is the proper way to go about protecting women's
safety. The Supreme Court of Canada did something unusual. It struck and
suspended the laws to give Parliament the opportunity to introduce laws that
protect women's safety. The whole point of this case was about safety and
security of the person. If it were a safe environment, then we wouldn't be
talking here today, if it were a good environment. It is not. It is
inherently dangerous. Parliament has a limited role. The question is, is
your role enough to protect them? I'm satisfied with C-36. There are
obviously things I have said could be done better, but it is a good start,
and it is the way to go forward.
Senator McIntyre: Bill C-36 may not be perfect and it may contain
flaws but, for all its flaws, it certainly fills the void created by the
Ms. Allison: It is a recognition, as Ms. Baptie has said, that
this is an issue of male violence. The violence comes from the male clients.
When you look at occupational health and safety in conditions of people who
work alone or people who work where they are exposed to violent people, the
goal of occupational health and safety is to keep them away from those
people and minimize contact with the people who will pose a danger to them.
Our occupational health and safety laws are nowhere near adequate enough to
protect women in this scenario, and Parliament has a very limited role in
that regard, in any event. You have to think about what your role can be
given that the Supreme Court of Canada has given Parliament the opportunity
to do something here.
Senator McInnis: Ms. Scott, I alluded to this earlier in a
question. It is the responsibility of parliamentarians, to the extent
possible, to govern at least for the majority, and hopefully for all
Canadians, and to put in place laws that protect the citizenry and laws to
extend policies that, to the extent possible, look after the health of
I made notes here over the two days now of what was said here. Let me
just quote some of this, and I want to know what you disagree with. The vast
majority of prostitutes are women. Virtually all buyers, pimps or procurers
are men. Prostitution is a form of male violence against women. It is a
harmful practice of sexist and sexual discrimination that exploits and
compounds women's social inequality and the economic inequality of women
living in poverty. It is about the racial inequality of women of colour and
Aboriginal women. These are individual quotes. Prostitution is inherently
sexist, an expression and reinforcement of men's sense of entitlement to
access the bodies of women.
Yesterday morning, I referred directly to a full page on the youth, kids,
in Halifax, Nova Scotia, where I'm from. This young girl was lured into sex,
drugs, fast money, et cetera, et cetera. She's now lost her innocence. She
has no education. She's trying to get back into school. The important thing
is she said that she could name at least 50 of her peers who are in a like
Now, I want to ask you, in what I have just quoted to you from what we
have heard here in testimony over the last two days, what do you disagree
Ms. Scott: I disagree that children or people under the age of 18
should be in this and many other businesses. I don't think anyone should be
forced to work in sex work, whether they're an adult or a young person. I
don't think anyone should be forced to take drugs. What you are describing
is appalling. I think that the laws, of which there are many on the books,
should be used against those people who force these women into these
situations. It is appalling.
Senator McInnis: This particular young woman, child, was seeing up
to five clients a day between the age of 18 and 70. She said this in the
article. My question is, is it not the responsibility and does Bill C-36 not
attempt to deal with this in an effective way?
Ms. Scott: I don't think so. I don't think you can deal with this
by putting a whole other group of people in serious harm's way. You already
have many, many laws on the books that can deal with this. Have you looked
at section 212? It has nine subsections there, and the maximum is 14 years
for the situation you are describing. That's a serious offence. I don't know
why the police don't use it. It is at their disposal. Why don't they use
Senator McInnis: The Supreme Court of Canada, as you are aware,
has referred this back to Parliament here in Ottawa to deal with it. We are
dealing with it. We are dealing with it through Bill C-36.
Ms. Scott: Actually, that's not what the Supreme Court of Canada
was talking about. They weren't talking about this kind of situation you are
Senator McInnis: It is talking about —
Ms. Scott: They were talking about the safety of adult sex
workers, not about teenagers being forced into the business with drugs.
Senator McInnis: What we're doing is dealing with the johns, the
pimps, the individuals that are commodifying women and kids. That's what
Ms. Scott: Why don't you go after those people who forced her? You
have many laws on the books to do that. I don't see why you need Bill C-36.
Senator McInnis: I think we're going in a vicious circle. Mr.
Chairman, I'm not sure I'm going to —
Ms. Scott: I don't know what more to tell you.
Senator McInnis: Yes, you told me. I heard you before.
I wanted to ask a question of Trisha Baptie. Your caption says,
"Exploited Voices now Educating," and I think that's an important area.
Could you just tell us about the education, whether you're dealing with, as
an earlier presenter said, getting into the schools to talk to the children?
Is that what you're referring to? Yesterday we heard about speaking to the
Ms. Baptie: Yes, we go into our school system and speak to kids in
high school about the realities of prostitution and what that actually looks
like. We speak to various community groups. Not everyone has personal
experience with women involved in prostitution.
We go into community groups of all sorts and work with diverse groups of
people to educate them about the realities of prostitution and the form of
sexual exploitation that it is. We use what we have lived through and what
we have survived and triumphed over to help other people have a better
understanding of what it is we're talking about when we say "prostitution."
Senator McInnis: You are to be commended. That's a very important
aspect of this.
Senator Baker: Ms. Scott, in your discussions with Senator
McInnis, who has been a practitioner of law for many years, you are both
correct. You weren't wrong and he wasn't wrong, because you were dealing
with the Supreme Court of Canada decision in Bedford. You were
dealing with your court decision and what was covered there, and Senator
McInnis was referring to matters that are not in the Bedford decision
but are in the bill. You're both correct.
My question relates to what Ms. Allison referenced earlier, and that is
provincial laws in relation to when we pass a federal law and the effect
upon them. Earlier today, we heard from an associate professor of the
faculty of law at the University of British Columbia by video conference,
Janine Benedet, who is a very well-respected jurist. She disagreed with the
minister and the officials when they claimed that prostitution is now
illegal in Canada for the first time in our history, and with the
institution of this bill.
We had a discussion in this committee, because it's important to nail
this down and to understand what we're doing here. The minister and the
officials said that although the person who is engaged in the act of
prostitution, the prostitute, is exempt from prosecution, under three
sections of this bill they are still conducting an unlawful act. They're
still conducting an illegal act.
I don't know if you want to comment on this, Ms. Allison, as a lawyer
from British Columbia, but there are provincial laws. For example, the
Remedies for Organized Crime and Other Unlawful Activities Act in Ontario,
and the provinces have their own laws. In other words, if somebody is known
to have committed an unlawful act there are remedies like seizure of
property, seizure of your possessions and so on at the disposal under
provincial law, which was adjudicated by the Supreme Court of Canada in a
case called Chatterjee in 2009 saying it's perfectly legitimate for
the provinces to do this if the person is not prosecuted federally.
In other words, the ramifications of making now the act of prostitution
illegal and unlawful could stretch beyond this act and could expose the
prostitute to other laws concerning the ramifications of having conducted an
unlawful or illegal act.
We're going to have to bring back the Justice officials to try to
straighten this out, because the courts will have to deal with this. Those
engaged in prostitution, if the Supreme Court of Canada decision in 2009 is
upheld and provincial laws allow for multiple convictions on matters
relating to unlawful acts, then the court is going to have to adjudicate it.
Do you have any thoughts at all on the magnitude of the question that you
pass a federal law that could actually influence provincial law and you have
to be careful in the juxtaposition of both of them?
Ms. Allison: I'm going to say immediately that I'm not a criminal
lawyer and I don't practise criminal law, so that would be outside my realm
of experience to deal with that. I'm an employment and human rights lawyer,
where typically there can be some overlap but they operate in different
There can be some overlap; for instance, a federally regulated employee
can sue in provincial courts or in federal courts. They have those rights
and there are some overlapping rights. I can't really comment on criminal
law aspects of it because that would be outside my realm of experience.
I did hear Professor Benedet's comments, and I have to say that I am not
familiar with the history of prostitution laws in Canada, but I would be
broadly in agreement with what she said.
Ms. Scott: It's a heavy price to pay for having consensual adult
sex. The police barge into your place, break things, haul you to court, take
all your possessions and your money, and you're trying to save to go to
school and paying down debt and all of this.
Senator Baker: Thank you.
Ms. Scott: You're welcome.
Senator Batters: Ms. Scott, I come from Saskatchewan. I was the
justice minister's chief of staff there for four and a half years. I said
this at this committee earlier, but what I saw from that unique vantage
point of the criminal justice system in Saskatchewan is that the average
prostitute is probably a 14-year-old Aboriginal girl who likely was beat up
by her pimp earlier that day and is who probably drug-addicted.
I would submit to you that for the vast majority of prostitutes in
Canada, their life is not like Pretty Woman. They're not going to run
off with Richard Gere, and their lives are not like an old western saloon
Earlier today we heard a witness say comments that like that glamorize
prostitution, and that was what encouraged her to become a prostitute at age
14. I took a bit of an objection to what you said earlier, and I just wanted
to get that on the record.
Ms. Scott: May I please speak?
Senator Batters: Sure.
Ms. Scott: Every time we talk about sex work, even if it's only
for five seconds and it's not a horror story, we're accused of romanticizing
or glamorizing prostitution. It's as if we're supposed to come here like
trained seals and give you a horror story, because that's what you're really
But sex work isn't always bad, and it doesn't have to be bad. There's
nothing inherently dangerous about sex and there's nothing inherently
dangerous about money, and putting those two things together doesn't make a
big, horrible witch's brew of stuff.
No, I stand firmly behind my comments. For the 14-year-old Aboriginal
girl, again, I will say that anyone who forces a 14- or 15-year-old, a young
person, into sex work should be prosecuted. That's not what we're talking
about here. Bill C-36 and what we're talking about here is consensual adult
Senator Batters: What we're trying to do is have that whole
paradigm shift so that people view prostitution in Canada a whole lot
differently from what has traditionally been the case, and we're trying to
limit it to the greatest extent possible to help exploited women and
children, which does exist.
Also, to Ms. Baptie, thank you very much for all the work you do. I
really appreciated Senator McInnis bringing that out a little bit earlier
because there's been a lot of talk today with many people who have disagreed
with the particular provision dealing with the communication provision
limiting to daycare and schoolyards. I just wanted to point out a little bit
on the other side, which maybe is what some would see as a benefit of having
that particular limitation provided and it is for how johns are dealt with
in that particular area. The general purchasing of sexual services in those
kinds of areas would produce a $500 fine for the first offence, a $1,000
fine for subsequent offences on summary conviction, and that's the general
one, but fines are doubled if the offences are in those particular areas.
That, I would submit, is a positive element of that.
As well, I want to get on the record the numerous authorities that have
discretion in charging. The police have discretion in charging, the
prosecutor has discretion in charging, and also, of course, the judge has
discretion about sentences. So it's not necessarily a given. Earlier,
Senator Plett brought up the matter of the five-year review of this bill. We
can see at that point if there are particular changes or adjustments that
need to be made. I would submit that would be something that will have a
good bit of evidence at the five-year mark to do.
Thanks very much.
Senator Jaffer: Thank you to all of you.
Ms. Scott, I'm going to try this again. I tried this with Ms. Bedford and
I didn't succeed. The way you're being questioned is due to the fact that we
have not walked in your shoes. We haven't got your life experiences, as you
don't have ours. For us, sometimes it's very difficult to understand sex
work and choice and wanting to do it voluntarily, because that's not what
we've heard from most people.
Can you explain what you mean by "choice"? You did try, to your absolute
credit, by saying it's not children, it's not exploitive, but we need to get
a better idea. I agree with you that Bedford is not what this bill is
about. Bedford was about protecting rights of sex workers. I
absolutely agree with you. Anyone who reads Bedford would say that,
but the minister has put something completely different. It's about
eradicating prostitution, to which you're saying, "No, that's my right."
Ms. Scott: Yes, I am. I'm saying that we are an entire community
of people and, yes, it's primarily women but not only women. Trying to wipe
out an entire community of Canadians because you don't like the way they
have consensual sex with each other is fundamentally flawed. The last time
that was done was with gay and lesbian people, and it did not reduce gay and
lesbian sex, but it did create much harm for these people. They were
blackmailed, denied employment, denied housing; they could go to prison. It
was even considered a psychiatric disorder. We now know that gay and lesbian
sex is a sexually healthy form of expression. I put forth to you, without
trying to romanticize prostitution, that so much of what we do is good. It's
good to connect with another human being and make that person who is feeling
desperately lonely, for whatever reason, multitudes of reasons, feel good,
even for an hour.
You're saying it, and you're right, you're just hearing the horror
stories. You're not hearing the nice parts of it, and we're afraid to tell
you it because if we do then we get called on the carpet for trying to
romanticize sex work. So I don't know.
There's something I wanted to bring today and I was afraid. It's a piece
of writing by Mirha-Soleil Ross called "Dear John." She talks about her
clients in this and how these are real people and she's a real person and we
connect. I have seen many clients I have truly connected with and some for
over 20 years. Some marriages don't last that long.
I'm going out on a limb here. Yes, you can cut off my head if you would
like but I like what I do. I know this job isn't for everyone, and I don't
think people who don't want to be in sex work should be in sex work. I think
retraining programs should be available, but they should be available via
the ministry of labour, not religious organizations. I think that criminal
records, especially for section 213, should be expunged from the moment
section 213 became law on December 20, 1985, if we're really serious about
women being able to get into another form of work.
I agree with Ms. Allison that you cannot get another job if you have a
criminal record; but not only that, you can't even get a position
volunteering if you have a criminal record.
Senator Jaffer: I'm taking some risks. When you talk about gay and
lesbian relations, with the greatest of respect, most of us see those as
relationships. I think where there is a challenge is buying sex — and our
life experiences are different from yours, so it's a little difficult — it's
about buying sex. Gay and lesbian relationships are, according to me,
healthy relationships between individuals.
Ms. Scott: But we also have relationships with our clients. Again,
we're not allowed to talk about that in public, but they are real
relationships, and sometimes they're very long-term. Even if they're
short-term, like Mirha-Soleil Ross is talking about this man whose wife is
incapacitated, unconscious; I think she had multiple sclerosis, I'm not
sure, but at the end-of-life stage. He was working two jobs. He didn't want
to send her to a home. He wanted private medical care. He would see her once
every two or three months because he just wanted to connect with someone.
The thought of having a relationship, like a long-term relationship with
anyone while his wife, though completely incapacitated, was still alive was
just incomprehensible to him. There are so many other situations like this,
and that's commitment.
Senator Frum: Ms. Baptie, I want to understand your work as a
community engagement coordinator. How many women does that mean you work
Ms. Baptie: We work with a wide variety of women. I represent a
wide variety of women. My position is to go into the community and share our
stories and to share our truths.
Senator Frum: My question to you is this: Of the women you work
with, how many of them enter into prostitution after the age of 18? How
typical is that?
Ms. Baptie: There are several. All of us have different stories,
so for me, I got in at 13. We have another woman who got in when she was 9
and women who got into it in their thirties, so it's a continuum.
Senator Frum: Which pattern is more typical?
Ms. Baptie: I would probably say it's more typical to get involved
pre-18 and continue on into adulthood.
Senator Frum: Right. The idea that we're talking about is there's
nothing wrong with consensual sex between adults. Some prostitutes may end
up in the profession into adulthood, but often they start before adulthood.
That's the point I'm trying to get at. Is that fair to say?
Ms. Baptie: Yes, it's fair to say that most start pre-18 and
continue on into their adulthood.
Senator Frum: I presume in the marketplace there's a premium
placed on youth and that youth is valued by the customer.
Ms. Baptie: Youth, yes. When we're talking about prostitution,
we're talking about a very idealized form of woman. Your race, your size,
your hair colour, your eye colour all situate you within the hierarchy of
prostitution and dictate how much you'll make. Youth is highly valued, as is
thinness, blond hair and blue eyes. That's the typical — I don't know what
the word is I'm looking for, but I'm looking for a word.
Senator Frum: The Barbie doll kind of look?
Ms. Baptie: Yes. Thank you. Youth is highly valued. I made my most
money between the ages of 15 and 18, absolutely, hands down.
Senator Joyal: Ms. Scott, I would like to come back to your brief,
because there are two elements in it that are, in a way, new to this
committee in terms of information. First, there is the fact that the City of
Montreal adopted the Nordic model by targeting the customers. I know we have
the Stella group as a witness tomorrow, so maybe we'll leave Montreal aside.
I am more concerned about the City of Vancouver, where they have had that
practice for four or five years, which is more or less a reasonable period
of time to come to some assessment of what would be the reaction or what it
would change in the way of performing or offering sexual services.
Could you be more precise in your knowledge of what happened in Vancouver
when the police decided to target customers instead of women offering sexual
Ms. Scott: Because the onus was on the women to sort of protect
the customer, women had to go and work in poorly lit, lonely, desolate
areas, and they had to work alone. This is displacement. Also, they could
not access any kind of police protection because they're too busy trying to
protect their client. There was no decrease whatsoever in violence against
sex workers. Think about it; they're working alone, in a desolate area.
There's no time for negotiation to assess the client. That's eliminated
because the client is afraid of being arrested. So you're getting in the car
very quickly, and that's when negotiation begins, when he's driving, and no
one has seen you get in that car. You are alone.
How could you possibly even think in that situation — I don't know why
the police adopted that — that that would reduce violence? That's the
Senator Joyal: Were many more accusations launched against
customers? Do you have any idea of the size or what was the effectiveness of
Ms. Scott: I'm sorry; I do not. I can undertake to find that out
Senator Joyal: It would be helpful to see how it displaced the
impact. As you said, there's something in the preamble of the bill. In fact,
it's in the last to one paragraph, which states that:
Whereas the Parliament of Canada wishes to encourage those who engage
in prostitution to report incidents of violence and to leave
prostitution . . .
I tried to imagine what would lead a person to report a customer who
remains anonymous, as you just described, because he or she didn't want to
give his name, as you do normally in your practice, and to report the
person, unless they gave a physical description, or they'd been quick enough
to notice either the number of the plate on the car or some details that
would help the police to identify the person. I tried to figure out in
practice how that would materialize for a person offering sexual services to
report that person to the police unless the person had tried to kill the
person. That is, unless your life were in danger.
Ms. Scott: Unless it's a 911 call.
Senator Joyal: That's the extreme case.
Ms. Scott: From what I've been hearing from sex workers, under
this system of Bill C-36, they would never call the police. I know I
certainly wouldn't. Why would I draw attention? Perhaps for me it's a bit
different, but for the vast majority of people in sex work, why would I draw
attention only to be harassed, to be arrested and to have the police know
the location of my work or to have the police even know I'm working on the
street? They're going to take my name, my number and my address and then
watch me. I would never call them.
Senator Joyal: You'll be under even more threat of security than
before in that context.
Ms. Scott: Yes, but at least I wouldn't be harassed by the police.
Senator Joyal: Yes. You would be the one who would be left aside
until the police decide to charge someone, and then you're called as a
Ms. Scott: Yes. And then I end up in court anyway. I would try to
avoid being harassed by the police. You'd have to be crazy to call the
Senator Plett: I would like to make an observation and then, Ms.
Scott, if you wish to respond to it, by all means.
You have suggested that your voice hasn't been heard enough and that we
hear only the horror stories, and so on. Of course, you have been here today
and passionately stated your case.
We have had others here in the last two days who have supported your
cause. I think we have heard a number of them, but we have also heard the
horror stories involved with prostitution. We had Ms. Grant here yesterday,
whose daughter disappeared and was kidnapped, beaten and killed. We hear
these stories over and over again. We had the association of Asian women
here, and they told us about the stories in Vancouver.
You say that we are taking away your right to have consensual sex. This
bill doesn't do that.
Ms. Scott: Yes.
Senator Plett: No; let me finish. This bill takes away the right
of a man to dehumanize a woman and treat her like a piece of meat when he is
buying her. He can have sex with her. You can have sex with whoever you wish
to have sex with. It's the money that is the problem here. You need to be
treated like a lady. Girls need to be treated like girls, and they should
not be bought and sold like a piece of meat. That is what this bill is
intending to do. It is intending, as Ms. Baptie said, to change the culture
and attitude in men that they treat women with the respect that they deserve
to be treated with. They have fought for years for voting rights, for
equality, and this is another step to give them that equality. You have the
right, ma'am, to have sex with whomever you wish. It's the money that this
bill deals with, not your right to have sex.
Ms. Scott: As long as I do it for free.
Senator Plett: Right.
Ms. Scott: Okay.
The Chair: Thank you all. That was a very helpful contribution to
our deliberations. We really appreciate the appearances of all three of you
and your assistance with our deliberations on Bill C-36.
Ms. Scott: Thank you very much.
The Chair: We will adjourn until 9:30 tomorrow morning, in the
same room. We'll see you then.
(The committee adjourned.)