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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 19, Evidence - October 29, 2014


OTTAWA, Wednesday, October 29, 2014

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred 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, met this day at 4:15 p.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good day and welcome to colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

We are here today, to hear witnesses 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.

Before we begin, I want to remind those watching this meeting that in September, the committee conducted a pre- study on the subject matter of the bill. Pre-studies are a unique feature of the Senate that allow committees to get a head start on their examination of a bill before the bill is introduced in the Senate. With that in mind, the committee held all-day hearings and heard from 50 witnesses on the pre-study. The committee also received more than 60 written submissions, which can be found on the parliamentary website at parl.gc.ca.

To begin our study on the bill itself, on our first panel appearing as individuals, are Edward Herold, Professor Emeritus, University of Guelph; and Bernard Lerhe, who is an officer with the Quebec City Police. Gentlemen, I believe you both have opening statements. Mr. Lerhe, do you wish to begin?

[Translation]

Bernard Lerhe, as an individual: First, I would like to thank the members of your committee for giving me the opportunity today to share my thoughts on Bill C-36.

I am a front-line police officer in Quebec City, a city of a little over half a million citizens. I was a patrol officer for 12 years, and was also assigned to investigations as a detective sergeant for 12 years. These various assignments enabled me to take part in a number of operations that targeted prostitution.

Since I do not have much time and the issue of prostitution is extremely complex and multi-faceted, I decided I would tell you about a large police investigation that took place in the early 2000s in the metropolitan Quebec region. It was known as Operation Scorpion.

This major investigation, received a great deal of publicity, particularly because the individuals accused of buying sexual services from minors were very well-known personalities in Quebec City. This investigation is worth noting because I think useful lessons can be learned from it. This investigation was launched as a result of information gathered in high schools and youth centres. These places are particularly good for recruiting minors. We must ensure that all stakeholders working to protect our young people know that particular attention must be given to these environments.

Using information from these places, we were able to quickly determine that the pimps, who were recruiting girls, were gang members. They were the ones recruiting the girls and seeing that their sexual services were provided to men. Their relationship with these girls is similar to what we now call human trafficking.

What was distinctive about Operation Scorpion was the fact that it was a full investigation, meaning that it concerned the three levels of prostitution: clients, victims and pimps. That is why we described this operation as exceptional.

The Quebec police were able to dismantle and weaken all the components of this well-established network in Quebec City. One of the reasons why we said that this operation had an important impact on prostitution in Quebec City is because we realized that it affected various levels of society and various ethnic groups because the evidence collected through wiretaps revealed telephone conversations held in no fewer than seven different languages.

It should also be noted that the public nature and the media impact of this police operation, which put high-profile personalities on the spot, very likely sent a strong message to men who do not hesitate to take advantage of the naivety of girls, of our children.

We think that the media impact had a deterrent effect on the clients who did not want their reputation tarnished. For the victims and future victims, it allowed us to become aware collectively that places like high schools and youth centres are areas where extra caution is needed in order to protect our girls, who may be more vulnerable at certain points of their life.

What this operation therefore teaches us is that, in order to combat juvenile prostitution, authorities must crack down or go after the entire prostitution network and these police operations must be made public. The media aspect is important because it sends a message of prevention to children and the parents of children who are likely to fall into prostitution.

We have also noticed that the public nature of this operation generated a lot of information about the trend, which has resulted in a sharp increase in the number of calls to our offices reporting juvenile prostitution cases. Let us remember that, after sentences were passed, federal authorities deported three pimps to their countries of origin. This sent the message that municipal, provincial and federal authorities were taking the matter seriously. Increasing sentences for human trafficking offences under the Criminal Code, as proposed by the bill under consideration, would help to make pimps, especially those who reoffend, understand that this type of crime is just not acceptable in our society. I think this measure could have both a preventive and deterrent effect.

In closing, expanding the definition of ''weapon'' to include objects such as ropes or handcuffs could help make police officers' jobs easier, in my view, because discovering such objects could be reasonable grounds for continuing an investigation that might otherwise fall flat if those weapons had not been found.

[English]

Edward Herold, Professor Emeritus, University of Guelph, as an individual: Senators, I first want to make the statement that there is unanimous agreement on the part of witnesses who have come here to the concept that those who purchase the services of young people under the age of 18, those who engage in forced sex relations and those who engage in trafficking should be penalized. I want to make that absolutely clear. There is no difference with respect to this point, because we tend to focus on the differences rather than the commonalities among these groups.

What would account for the differences in response to Bill C-36? First, there are what we call the conservative moralists who generally base their opposition on moral grounds. Well-known feminist Naomi McCormick classified feminists into two groups: radical feminists,who focus on the sexual victimization and dangers facing women, and liberal feminists, who focus more on women's sexual autonomy. Not surprisingly, we have the radical feminists in favour of Bill C-36 and the liberals opposing it.

The justice minister, in introducing this bill, based it on the Nordic model of penalizing clients. It should be noted that this model was heavily shaped by radical feminist perspectives regarding societal male dominance and exploitation in male-female relationships across society, not just with regard to sex work.

We hear a lot about men who purchase the services of sex workers, but I'd like to give an example of a situation that we often don't hear about.

At the University of Guelph, in the spring, there was a conference on sexuality and a session on sexual rights for the disabled. In that session, parents of a severely disabled adult son said their son had not been able to attract a female partner. Thus, they sometimes take the son to visit a sex worker because they felt he should not be deprived of intimacy and sexual pleasure with a woman. Given this situation, senators, I would like to ask you to consider who should we see punished as a predator? Should it be the disabled son, should it be the parents, or should it be both?

I want to also point out the reality is that there are many men who, for various social and/or physical reasons, are not able to attract a woman to have sex with. Some of these men pay sex workers so they can have intimacy and sexuality with a woman. Does it seriously make sense to label all these men as predators and exploiters? Does it?

At the Guelph sexuality conference there were sessions led by sex workers. These sex workers emphasized that they do not view their clients as predators. In fact, they said that almost all their clients were respectful of them. They stated furthermore that most of the other sex workers often form friendships with regular partners. These kinds of comments are not isolated ones. They are commonly found by researchers who have studied sex workers in depth.

It is important, of course, to recognize the different categories of sex workers. A major difference is between those who are street based and those who work in house. Given their concern with victimization, radical feminists have tended to focus more on street-based workers and particularly those who have experienced serious problems and wish to escape the streets. Many of their conclusions are based primarily on working with this group, which, as we know, is associated with far greater problems than those working in other areas of sex work. On the other hand, most academic researchers and liberal feminists study both street-based sex workers and other categories of sex workers as well, and they draw comparisons between these groups. Not surprisingly, then, the conclusions of radical feminists and those of liberal feminists and most academic researchers differ dramatically when it comes to sex workers.

Here is another key issue. Do many sex workers voluntarily choose to engage in sex work? At the sexuality conference in Guelph, there was a sex worker who used to be employed full time, but she was in an accident that resulted in a physical disability and she could no longer work at her regular job. After a period of time of living on disability allowance, she decided that she should have a decent standard of living, so she chose voluntarily to be a sex worker. Furthermore, she said she liked sex work because it provided more freedom than did other jobs.

There are also women on welfare or engaging in low-paying jobs who choose sex work so they can provide greater opportunities for their children. Sex work is also chosen by some university and college students so they can afford to pay their tuition. Again, these are not isolated examples.

The reality is that if this law is passed, many of these women will be affected in terms of their income. We're going to have some students who cannot afford to pay tuition. Some of these women will live on welfare or have low-paying jobs and will not be able to adequately take care of their children.

In conclusion, in choosing the radical feminist perspective towards prostitution as embedded in the Nordic model, the justice minister has completely disavowed the findings of the Supreme Court of Canada that prostitution is not inherently exploitative. Furthermore, the Supreme Court blames many of the problems facing sex workers on the part of government laws that criminalize sex work.

The justice minister did not seriously consider other models such as the liberal feminist one displayed by New Zealand's decriminalization of prostitution. He has also rejected the predictions of most sex workers and most academic researchers regarding the potential harmful effects that will occur as a result of the proposed amendments to Bill C-36.

Finally, he has disregarded the findings of national surveys that demonstrate that most Canadians do not support his views, particularly with regard to his proposal to harshly penalize clients who pay to have sex behind closed doors with consenting adult sex workers.

In conclusion, when it comes to consensual sexual relations, most Canadians do not want the Government of Canada to be in their bedrooms.

The Chair: Thank you both. We will now move to questions and begin with the deputy chair of the committee, Senator Baker.

Senator Baker: Thank you, Mr. Chairman, and thank you to the witnesses who have given great presentations here today.

Before I start, Professor Herold, I seem to remember that you're the author of a textbook on the subject of sexuality and well-recognized in this country. I'm interested to learn how you would term the changes that have taken place in public attitudes surrounding this subject in Canada. Could you briefly describe what these changes are and the evidence that you use to support your theory?

Mr. Herold: First, in the introduction to the brief I talked about various changes that have occurred over time in Canadian society and there are many. When you read them, you will see I've indicated that Canadian society as a whole has become far more liberal with regard to many areas of sexuality. I will just mention a couple.

There is the acceptability of sex outside of marriage and the acceptability of living together. Many years ago these were soundly condemned in Canadian society. They are no longer so. The point I want to make is that this is part of an ongoing evolution, not just with regard to this particular issue, but with regard to many issues of sexuality in our society. There are many possible explanations for this. A key reason is that we have become a more secularized society. Religion does not play the central role for most Canadians that it used to in terms of morality.

Also, there is the feeling that sex is a private matter. This is very important, because most people feel that sex is a private matter between the individuals involved and that other people should not be involved in terms of making a decision as to whether this is appropriate or not when it comes to adult, consensual relations. Certainly when it comes to juveniles or when it comes to forcing someone to have sex, the Canadian public is definitely against that.

Senator Baker: On what do you base this opinion? Is this based upon studies that have been done in Canada by respected researchers? You are recognized as the person who authored the textbook on the subject that surrounds this matter. Is this evidence fairly solid that the attitudes today in Canada are not being reflected in this bill?

Mr. Herold: Yes. There have been presentations by other witnesses appearing before the House of Commons and before the Senate, well-known researchers who have studied prostitution in depth. What I have presented here is supported by their findings.

Senator Batters: Thank you very much, both of you, for being here.

Mr. Lerhe, during his testimony before this particular Senate committee, Canadian Police Association head Tom Stamatakis told us that police need the legislative authority to insert themselves into an exploitative situation in order to determine if an individual is being trafficked and intervene accordingly.

First, do you agree that this particular piece of legislation will give the police a vital tool to use against human trafficking? Also, in your considerable experience, are prostitution and human trafficking linked, and what about prostitution and organized crime?

[Translation]

Mr. Lerhe: Yes, there is a link between prostitution and organized crime, because that activity brings in a lot of money. In fact, the Service du renseignement criminel du Québec has shown that organized crime is an activity that pimps in street gangs are engaging in more and more. A 2013 report confirms it.

Yes, it provides tools, like this bill does, by changing the definition of the term ''weapon.'' When police officers stop a car in a place that could be recognized as a place for prostitution and if they find ropes or handcuffs or anything that might be used to tie a person inside the vehicle, they will be able to use that to further investigate whether the individual is involved in human trafficking. If this definition of ''weapon'' did not exist, the police officers would have fewer grounds to take the investigation any further. As a result, the proposal to amend the definition to include anyone in the possession of handcuffs and ropes or anything that might be used to tie a person, gives police officers additional tools to intervene, and that is very good.

[English]

Senator Batters: Excellent. You also briefly mentioned in your opening statement the increase in sentences and how you believed that was also an important tool. Maybe you could expand upon that a little bit more as well.

[Translation]

Mr. Lerhe: It is an important tool, because, as far as pimping is concerned, we often see the same individuals. Year after year, the same pimp is charged a number of times and he goes back to the same job of recruiting young women. Longer sentences will send a clear message to those individuals that it is not acceptable in society to take advantage of women whom they often treat like slaves. However, the women are often in love with those pimps, in a way like in cases of domestic violence. It has been challenging to make women beaten by their husbands understand that that is not acceptable. This is the same; we must show women who have fallen prey to pimps that this is not acceptable in our society, which is what this bill is doing with these amendments.

[English]

Senator Batters: Absolutely. Do you feel that this bill strikes an appropriate balance between the safety of prostitutes and the safety of communities? As a law enforcement officer, what tools would you say that Bill C-36 gives you to achieve both of those goals?

[Translation]

Mr. Lerhe: Yes, because that allows women who might voluntarily choose to continue to be prostitutes to have someone to look after their safety, for instance. It also sends a message to police officers that they are victims. We should not go after them; we should go after the pimps who take advantage of these women, and the johns, not those who decide to be prostitutes. If they do so voluntarily, they can keep doing it; otherwise, we will be there to take action.

[English]

Senator Batters: Absolutely. Could you briefly touch on the safety of Canadian communities, in general?

[Translation]

Mr. Lerhe: We are sending a clear message to the public that trafficking women is unacceptable and a type of slavery in modern times. That is unacceptable, and the bill says so clearly. That is why I was talking just now about the importance of the media when we arrest people in sending a clearer message to the public. The operation we carried out in Quebec City helped us send a clear message because well-known individuals were arrested as clients, which made everyone aware about this activity and gave us more information with which to conduct other operations.

[English]

Senator Joyal: Welcome, professor. I would like to come back to the preamble of Bill C-36, because it seems that this is what the Minister of Justice wants to establish as the foundation for the constitutionality of this bill. You might have had an opportunity to read the testimony that the Minister of Justice and higher officers of the Department of Justice gave us when they appeared at the beginning of September.

It's quite clear that there is the presumption that all activities related to prostitution — we're talking here of consenting adults, we are not talking about exploitation of minors or that category of people. In my opinion, that's a different crime. But in terms of prostitution, the assumption is that any act of prostitution is deemed exploitative and deemed commodification of the human body and, per se, it should be prohibited.

How would you establish in court that that premise is not based on what I would call the reality check? In other words, how would you be able to establish in front of a court that the presumption doesn't meet the reality test?

Mr. Herold: First, the witnesses who appeared in the Bedford situation, did present evidence and the court did accept their evidence of this. The court disagreed with the idea, the concept that sex work is inherently exploitative. I think already there has been adequate testimony to do that, but also here I would go by what the majority of sex workers themselves say. Do they say, ''Yes, we do feel we are exploited or our customers are exploiting,'' or do they say the opposite? What have researchers in the area said? I've read a lot of the research by the leading social scientists in this area. What they have found is the great majority of sex workers — I'm talking about adult sex workers where it's consensual — say they do not view their clients as being exploitative. As a matter of fact, they say their main concern is actually the police, because in some situations they're more harassed by police than they are by clients.

A good example of that is just this past summer there was a case in Toronto where a police officer went to a massage parlour and basically he said to the sex worker there, ''Either you give me oral sex or I am going to report you and charge you with criminal offences.'' The judge believed the sex worker and the police officer was charged with this and found guilty. So this is another kind of concern.

Those are the main reasons that I would present. By the way, too, the feeling among many of the sex workers who are adult sex workers and the organizations that represent sex workers is that they are not being heard. I think this is very important, this feeling that they are not being taken seriously when they say they have voluntarily chosen to do this; when they say most of their clients are very respectful of them; when they say most clients do not harm them and, yes, there are some who do, and particularly among street workers. Among those who work on the streets, this is a very serious problem, of course.

That's why I think it's so important to be aware that when we talk about sex workers, we're talking about a complexity of groups of sex workers.

Senator Joyal: What, in your opinion, will be the impact of this bill, especially the section of the bill that criminalizes the customer? In practice, what will happen once that section is implemented?

Mr. Herold: Here is the concern of sex workers plus the researchers who study them. Now, many of them actually have what they call friendly relations with their clients. They are concerned now that the clients will be afraid and some of whom they consider the good clients will no longer come because of this fear of being prosecuted. Also, they're also worried that now, instead of respecting each other, there is going to be mutual fear on the part of the client that the sex worker may expose him and, on the part of the sex worker, that he might well become angry because of the situation that he feels he's vulnerable to now. The relations will not be as, let's say, friendly as before.

Of course, another fact is that the earnings of the sex workers will drop. You can just imagine any other business where you say, ''Oh, you can have this, you can run your business, but you're not allowed to have any clients,'' certainly that business would go out of operation soon. Maybe that's the hope here, although I doubt that will happen. It may happen to some extent but not to a great extent, because no matter what people have done with prostitution over the years, it's still around and still exists virtually in all societies. The research shows that.

Senator Plett: In fact, I do believe that that is the intent of the bill, to take away the customers and over a period of time the business will go away. I appreciate the fact that you agree with us on that.

Mr. Herold: Partially.

Senator Plett: Mr. Lerhe, my colleague Senator Batters already alluded to the fact that Tom Stamatakis testified and, in his testimony, he also said that in the part of Vancouver he lived in outside of his door over the years there were prostitutes on the street, on the sidewalk, and his children were subject to walking out and seeing used condoms and so on on the street.

From a law enforcement perspective, could you tell us just some of the specific problems that you have seen in communities, as Mr. Stamatakis did, some specific problems that you have seen prostitution has on communities and districts where this is happening?

[Translation]

Mr. Lerhe: The main problems are related to finding used needles and condoms. People walking on the street can be approached by clients, claiming that they think they are also involved in prostitution. People are also bothered. Often, that is where police operations start, because people complain either about the danger of finding used needles or about the rudeness of johns on the streets constantly soliciting them as they walk by.

[English]

Senator Plett: Thank you very much. Professor Benedet testified at our pre-study in support of this bill, and she was quoted as saying to opponents of the bill:

There is something ironic about the argument that men must be allowed —

— as a constitutional right —

— the unrestricted opportunity to buy sex from women in order to keep women safe from those very same men.

Could you comment on that statement that she made and how you feel about that?

Mr. Herold: Sure. First, I want to again emphasize that street prostitution is definitely not approved of by Canadians, and this is the most problematic of all the areas of prostitution. There is no doubt that it's problematic. There is no doubt that Canadians do not like to have street prostitutes in their area, and there's total agreement on that. So I want to, again, clearly make that particular case.

In terms of the other one, the assumption is that it's always men purchasing the services of women, but we know that there are many men who purchase the sexual services of another man. How would that professor respond to that particular situation? Would she say this is still wrong, et cetera? But, also, we know there are some women who purchase the services of male sex workers.

To give you an example, I did a study of female tourists going to the Caribbean and engaging with what were called ''beach boys'' at that time. To make a long story short, these beach boys make a living — the professionals, not the amateurs — in terms of providing sex, companionship and so on to these women. Literally, from the Western countries, thousands of women go every year to resorts and engage in this kind of behaviour. I think it's important to note that there is this other side of it. We're not just talking about men exploiting women; what about the other way around?

When it comes to exploiting, how do we respond to the sex workers who have been studied? The majority of sex workers who have been studied by research — I'm talking again about the adult consensual sex workers, the majority of whose opinions tend to be dismissed by many people in society — say, ''This is consensual, and we do not feel this is inherently exploitative. We've chosen to do this.'' As the liberal feminist perspective goes, they say it should be a choice and a right to do this.

Senator Plett: Do I have time for one more question?

The Chair: No. Senator McIntyre.

[Translation]

Senator McIntyre: Thank you for your presentation, Mr. Lerhe. My thanks to Mr. Herold as well.

Mr. Lerhe, I would like to go back to an answer you gave earlier to Senator Batters regarding the definition of the term ''weapon.'' In fact, in your presentation, you said that expanding the definition of the term ''weapon'' would help make police officers' jobs easier. As you know, section 2 of the Criminal Code defines the term ''weapon'' very broadly and, as you said earlier, Bill C-36 adds to the definition of ''weapon'' anything designed, used or meant to be used to tie someone against their will. In my interpretation, this could mean handcuffs, ropes, duct tape or zap straps.

As a police officer, could you tell us more about that? In other words, have you seen a number of investigations fall flat because the police force did not find weapons but did find such objects in the suspect's possession?

Mr. Lerhe: I wanted to show that, with this section, the patrol officer, for instance, who pulls over a vehicle for whatever reason and sees handcuffs or anything that can be used to tie a person, will write it in a report known as criminal intelligence. When patrol officers stop a vehicle, they have the discretion to fill out a criminal intelligence report that ends up with a team of investigators who examine every interception police officers make. With the relevant information entered by patrol officers and depending on the place of the interception, investigators working on those types of crimes will retrieve the information. It is often the combination of an event and something else that will help us finally conduct an investigation on a specific individual. Then, with all that information, we can consult a judge to obtain a wiretapping warrant for that individual, because this entire chain of events provides enough grounds for a request. These elements are an addition to our investigative power; they are basically additional elements for our patrol officers, because they are the ones who will pull over vehicles and see the objects. This is first and foremost an additional tool for patrol officers, allowing them to obtain additional information for our teams of investigators.

Senator McIntyre: Is the broader definition of ''weapon'' good news for police forces?

Mr. Lerhe: Yes, it is very good news. Once again, it sends the message that prostitution, human trafficking — because that is what those ropes are often used for — is unacceptable in our society, and it shows police officers that they have to take action when they find something like that.

Senator McIntyre: Thank you, sir.

Senator Dagenais: I would like to thank our two witnesses. Bernard, it is nice to see you; we know each other well, of course.

Mr. Herold, I was a bit surprised by your presentation, when you said that you find Conservatives to be moralists. I think that is what you said. I do not think that wanting to provide some security to the most vulnerable members of our society is moralizing; instead, I think it has to do with wanting to provide them with some security, even if just a little. I am talking about the most vulnerable people and about victims of prostitution, including minors.

Bernard, I am obviously familiar with your operation in Quebec, mainly in Quebec City. The operation was known as Operation Scorpion and it resulted in the arrest of well-known individuals. That event led the way for Bill C-36, which seeks to criminalize johns. As we know, the operation covered a number of cities. Now, I would like to hear you talk about the reaction of the people of Quebec City who, and correct me if I am wrong, even signed a petition for the operation to continue, because they saw the merit of the work you were doing and that actually fully reflects the definition in Bill C-36. Could you tell us about the Operation Scorpion petition?

Mr. Lerhe: A petition was submitted to the National Assembly of the Province of Quebec asking for Operation Scorpion to continue and to become permanent. Almost 65,000 people signed the petition in the wake of a demonstration before the National Assembly of the Province of Quebec asking for the operation to go on, because they recognized that children are the most vulnerable individuals in our society. When you realize that the Conseil du statut de la femme du Québec says that 80 per cent of prostitutes started this type of work when they were minors, you understand how important it is to promptly deal with juvenile prostitution and pimps taking advantage of these young girls. Of the 15 pimps who were arrested during this operation, most of them have reoffended. I am excluding the three who were deported to their countries of origin, but most of them have gone back to being pimps. It is important to send a clear message that this is not acceptable in our society, and I think Bill C-36 is sending that message.

Senator Dagenais: Thank you very much.

[English]

Mr. Herold: Researchers such as John Lowman, who have extensively studied prostitution, have concluded in their study of adult prostitutes that the great majority did not start as juveniles. As a matter of fact, the earliest age was perhaps 19, but many started later. There's a big difference between research findings when someone studies street prostitutes versus when someone studies adult prostitutes. What we need to keep in mind is, again, the difference between the liberal feminists and — so often it's felt that all feminists are in favour of this bill. The reality is that there are many among the group of what are called liberal feminists who are totally against this bill because they feel it harms sex workers more than it helps them.

Senator McInnis: Thank you to our guests for appearing.

Professor Herold, I certainly don't question the sincerity and the amount of research and involvement you've had on this topic because it's extensive. We've heard from a number of groups and individuals here. We've heard that the bill will not meet the constitutional challenge. We've heard that it will meet constitutional challenge from professors of law and justice department lawyers. We heard that we should not criminalize the prostitute. We must protect our children, though. We've heard of a number of horrific situations of abuse and total exploitation of women.

Now, I know that you mention in your paper the Angus Reid poll that came out shortly after, but the Department of Justice had a paper that they put online, and it had direct people who came forward with respect to their views on what we were proposing. It's been a while since I looked at it, but 65 or 67 per cent were in favour.

The government has chosen a proven model that they believe will reduce prostitution. After you've listened to the public, then leadership is about taking control. On the other hand, you would have us adopt New Zealand's liberal feminist decriminalization model, where I understand that prostitution is alive, well and flourishing.

Do you really believe that Canadians would support such a direction?

Mr. Herold: The extensive review of surveys, done by people such as John Lowman, on Canadian attitudes on adult consensual relationships, found that most Canadians are in favour of sex workers not being criminalized. However, the great majority of Canadians agree that when juveniles are involved that it definitely should be criminalized. The client should be punished for engaging in paid sex with juveniles. Also, it should definitely be criminalized when it comes to trafficking and when it comes to forced sex. In a situation, say, when the sex is consensual and then the client suddenly forces the sex worker to engage in sex that she doesn't want to, then that should definitely be criminalized.

The key question is: Are we going to treat everyone the same? Are we going to say that all relationships are criminal in nature? Do we really have the evidence to say that?

Senator McInnis: We say that we do. Some may not agree. Around this table, we have heard about some horrific situations, where prostitutes have been subjected to one customer after another. What this bill is talking about are the pimps and the commodification of women. You can try to distinguish it, but governments have to govern and they have to be responsible. We were asked by the Supreme Court of Canada to respond. They gave us the opportunity to do so. They said it is the Parliament of Canada that has that responsibility. That is what we're doing.

Mr. Herold: Definitely. There is no doubt, and everyone agrees that there is a lot of brutality and exploitation involved in prostitution. A lot of horrible things happen. Everybody agrees that this occurs. What about the situations where researchers report that the majority of adult sex workers, who say that they are engaged in consensual sexual relations, say that this rarely happens to them. They say that they actually like doing sex work better than they like doing other jobs. Are we to disbelieve them and say to them that they do not know what they are talking about, and that they should not be saying that?

Senator McInnis: The preponderance of evidence, that we have heard, disagrees with that.

Senator Jaffer: Thank you both for being here. I did have a question for Professor Herold, on the issue of the research from John Lowman and Christine Louie, but you have answered it, so I will move on.

We have different points of view around the table. For me, Bedford said that the safety of workers was important. In paragraph 89 of the Bedford case, it said very clearly that the state had a role to keep women safe. That's how I read Bedford.

In your brief, you have mentioned the three divergent streams of arguments regarding Bill C-36. You follow on to say that each of these three groups agrees that criminal laws are needed to deal with forced prostitution and trafficking. You just re-emphasized that. I don't think anyone here disagrees with that.

I believe that this bill is really going to hurt women. The challenge that we have is for the safety of the sex workers. Can I infer from what you have said that there has to be the ability to choose sex work? For those who independently choose sex work, is it the state's duty to keep them safe? What do you say about this?

Mr. Herold: That is the conclusion of the great majority of researchers who have studied this particular area. It is the feeling of most in-house workers, and not street workers, who say they have voluntarily chosen to engage in sex work. What they are concerned about is that this particular bill will not enhance the safety of sex workers. For reasons that we've discussed earlier, they honestly believe that this will have the opposite effect for them.

Senator Jaffer: Professor — and this was my own personal challenge, too, so I am just as much to blame — the challenge is that in our heads, we can't see the difference between forced prostitution, trafficking, and women who choose. This is because we all have certain biases and we have all been raised in certain ways. I feel that Bedford said that you have to protect those women. For women who chose this work, will this bill hurt or protect them?

Mr. Herold: It will definitely hurt women who choose to do this work.

The Chair: We have a few minutes left for a second round. I have five senators who wish to ask a question. If you can tighten up the questions and responses, then perhaps we can get through them all.

Senator Baker: I have one question. I imagine that the general public watching these proceedings would be confused as to what this bill does. It's illustrated here today.

To your right, we have a respected member of the police community from the Province of Quebec. Over the years, he has made a great contribution by representing police officers. He pointed out that the bill will now allow for the safe operation of a prostitute in her own home. It will allow her to hire somebody to protect her, or to be a guard, driver or receptionist. The bill does that. Yet, you and the minister have said that this bill, for the first time in Canadian history, will outlaw the act of prostitution.

The bill addresses the complaints of the Supreme Court of Canada, as far as the carrying on of the business, by allowing the prostitute to advertise, and so on. But then, in a different way, it closes the door, according to the minister and according to the intent of the legislation. Wouldn't you agree that most Canadians would say that if you're going to make it illegal, then make it illegal, and if you're going to make if legal, then make it legal; but don't make it so confusing that nobody really understands what this bill does? Why would you say that the government would do this? Would they say that they're going to allow prostitutes to carry on their business and that they'll protect them for each one of the reasons given by the Supreme Court of Canada, and yet they will make the act of prostitution unlawful for the first time in Canadian history?

Mr. Herold: The key issue is that the bill is going to criminalize all clients, regardless of the reason. I presented some examples of situations where I raised the question, and I'm going to bring it up again because I think it's crucial.

There are some men who for various reasons — whether it's social or physical, they have particular disabilities and they don't have relationships with women — go to sex workers because this is the only way that they can have any kind of intimacy with a woman. What I am getting at is, yes, on the one hand it does allow for women to practise sex work in certain very restricted circumstances., With other businesses, on the other hand, if you said that your clients are going to be criminalized if they visit you, how do you think that makes a sex worker feel? Do you think that makes her feel that she is safer doing this or less safe? As I've said earlier, the research shows the majority of sex workers agree that this is going to make their sex work more difficult.

If I can draw another comparison, we know, for example, that in intimate marital relationships there are many situations where women are brutalized, murdered and so on. Now, we don't say that in that situation that we're going to criminalize all husbands because some husbands are very brutal to their lives, do we? In this situation, we're talking about guilt by association. We're not talking about actual proof that you have actually harmed the sex worker. We are saying, ''Oh, just because you are paying for someone, therefore you are guilty.'' Where are the facts saying that you have forced this upon the person? Where is it saying that you definitely have exploited this person, when that very person says, ''I do not feel exploited? I feel that many of these customers are very good to me; many of them are friends of mine.''

Senator Batters: Mr. Lerhe, could you describe for us something that you, as a law enforcement officer, frequently exercised, namely discretion by police officers regarding charging. We've heard some concern expressed by certain prostitutes that police officers are going to be using their charging powers, but I want you to explain to us, and to those people in the Canadian public who are listening to this, the type of discretion that police officers have and frequently use regarding charging, particularly of those selling sex.

[Translation]

Mr. Lerhe: In terms of street prostitution, police officers often see that the prostitutes are there and may solicit clients. They will therefore go and check whether their environment is safe and whether they feel safe. What this bill also brings is a clear message to police officers that these women, if they are doing their job voluntarily where permitted, are still victims. As a result, instead of laying charges against the prostitutes, police officers will be more inclined to want to help them and refer them to help centres. One has just opened in Quebec City. So there are help centres for prostitutes, and police officers will understand the message in this bill that they have to help those women more. It is a message that the police in Quebec City have already understood. I gathered the 2011, 2012 and 2013 statistics for Quebec City. In 2011, 71 prostitutes were charged, in 2012, only 25, and in 2013, just 12. We can therefore see that charging prostitutes is not a priority for police officers right now and, with this bill, it will be even clearer that they are victims. Police officers will be more inclined to help them.

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Senator Batters: Mr. Herold, the beginning of your brief explains it, but you were a professor for a number of years at the University of Guelph. Could you please tell us what your field of study is?

Mr. Herold: I've studied different topics in the area of human sexuality. I haven't specialized in one particular area. I have done a couple of studies related to sex work, but it has been a broad range. I've studied issues such as teen pregnancy.

Senator Batters: You were a professor of what? Not law?

Mr. Herold: No, my degree is in sociology and I was a professor of family studies.

The Chair: One last question, Senator Jaffer, and then we'll have to close it down.

Senator Jaffer: My question, again, is to Professor Herold.

I'm really struggling with this bill because of my own biases. However, what I have come to learn is that there are people in this country who choose to work as sex workers. I think that is a hard thing for us to accept because of all the trafficking, the forced prostitution, the pimps and all the terrible things that exist around it.

If you were assisting the minister, how would you draft a bill that would protect sex workers?

Mr. Herold: First, we would have to go back in terms of the origin of this bill, which is that this is inherently exploitative of all women. I would say that, yes, where we have definite evidence that clients are hurting sex workers and forcing them to engage in sexual acts they don't want to engage in, and hurting sex workers, then indeed they should be prosecuted to the full extent of the law. It is the same thing in terms of juvenile prostitution. That is, clients of juvenile prostitutes should also be prosecuted, as should those who traffic women.

In terms of the law, itself, we have to be very careful about, first, assuming that all women who choose to do this have been forced or pressured.

The Chair: I'll ask you to wrap up.

Mr. Herold: Okay. I want to come back to this point with you.

The Chair: No, I'm afraid. You'll have to have that conversation later.

Thank you both for being here. Your contribution to our deliberation is much appreciated. We will now set up a video conference for our next witnesses.

Please welcome our next panel, both witnesses appearing via video conference: from the Government of Manitoba, the Honourable Andrew Swan, M.L.A. and Minister of Justice and the Attorney General, appearing from Winnipeg; and from the Canadian Women's Foundation, Barbara Gosse, Senior Director, Research, Policy and Innovation, appearing from Toronto, Ontario.

Welcome, witnesses. I appreciate your appearance here today.

Ms. Gosse, would you wish to lead the way with your opening statement?

Barbara Gosse, Senior Director, Research, Policy and Innovation, Canadian Women's Foundation: Thank you very much. Thank you, Mr. Chairman. I am grateful to both you and the esteemed members of this committee for your time and thoughtfulness on this matter, and I appreciate being able to bring you comments on behalf of the Canadian Women's Foundation.

My three key messages today are that the Canadian Women's Foundation is currently the pre-eminent expert on sex trafficking in Canada; that Bill C-36 should include enhancements for the increased protections to ensure that those selling sex are not criminalized; and that increased funding for support services is necessary in conjunction with this bill.

First, I want to clarify that the Canadian Women's Foundation expertise is on sex trafficking, which we define as forced prostitution. We emphasize that we are not experts on consensual prostitution.

In 2012, we invested $2 million and created and funded the Task Force on Trafficking of Women and Girls in Canada. The Canadian Women's Foundation has just launched its anti-trafficking strategy based on the task force's comprehensive work. The strategy is rooted in women's equality and is focused on funding, promoting collective action, and sharing knowledge and expertise towards system change.

We recognize sex trafficking and sexual exploitation as extreme forms of violence against women and girls, and we are pleased that Bill C-36 addresses the components of sex trafficking. Our research has shown how sex trafficking and sexual exploitation are inextricably embedded within commercial prostitution. That has been clearly revealed to us through the testimony of national and international experts, and vulnerable women and girls who have been forced or coerced into prostitution in both legitimate and illegitimate businesses.

First, Bill C-36 needs to increase protections to ensure those selling sex are not criminalized. Sex trafficking is connected to prostitution. Trafficked women and girls are forced into prostitution often in the same location, such as massage parlours, escort agencies and strip clubs, and are advertised in the same publications by their traffickers.

Law enforcement officials told us, when the burden of evidence is too high to meet the threshold of Canada's new human trafficking legislation, in many instances they fall back on prostitution legislation to immediately intervene between a trafficker and the victims. This not only ignores the violence and abuse that victims have endured; it criminalizes the wrong individual for the crime committed.

The criminalization of sex sellers is harmful in both the short and long term. Those charged with prostitution-related offences face years of being precluded from mainstream society; they are precluded from educational and employment opportunities; and they are burdened with a stigma for their entire lives.

We have also learned that in fact criminal charges against sex sellers do not provide these individuals with the services or protections they require in many instances. Instead, such charges increase their vulnerability. Failed conditions, for example, often restrict a woman from a familiar location, with their relocation increasing their vulnerability and at times even causing homelessness.

We are deeply concerned for the potential of trafficked women and girls to be criminalized if their traffickers force them into acting in any way that contravenes the criminal provisions contained within Bill C-36. For example, it is not clear how women and girls who are forced into prostitution through the complexities of trafficking and who have no incentive to identify their traffickers will be protected when forced to be on the streets and communicating for the purposes of prostitution. In addition, they could also be forcibly advertised and subsequently charged under the advertising provisions of Bill C-36. Neither of these provisions provides explicit protection for those being trafficked. The bill needs to build in such protections for trafficked women and girls.

Second, Bill C-36 needs to be accompanied by increased funding for support services. The proposed $20-million investment is inadequate and will not sustain the need for essential services and supports required in the lives of victims for the short, medium and long term. Properly resourced policy and programs that provide greater access to services and supports for vulnerable women and girls who have been sex trafficked or sexually exploited are needed. These services and supports should also be available to those in the sex industry in order to minimize harms and support their exit from prostitution, should they wish to do so. These services and supports are key to rebuilding lives, creating self- sufficiency and building stronger socio-economic futures.

Supports such as mental health and addiction services, trauma counselling, safe housing, basic needs and income support, identification replacement and legal court supports cannot be provided on a one-size-fits-all basis. All services and supports need to be provided on a continuum-of-care model, with easy access to individual supports for those requiring emergency care or for those who need longer-term services. Without such services, those who are trafficked or sexually exploited will find it difficult to rebuild their lives and could be re-trafficked or remain in prostitution. This will ultimately cost us all more.

Adequate resources will also be necessary for law enforcement to work effectively with the new laws to put in place processes that will ensure that trafficked and sexually exploited women and girls are recognized as victims and not as criminals.

In closing, I'd like to say that we've been extremely fortunate to learn and grow from the 160 experiential women who shared their detailed stories and experiences with us. It is vital that we honour all of their voices.

I would like to conclude with the words of a survivor of sex trafficking by saying, ''Just try hard not to give up on us like everybody else in the world has.''

Hon. Andrew Swan, M.L.A., Minister of Justice and Attorney General, Government of Manitoba: Thank you and good afternoon. I appreciate the opportunity to speak to this committee about Bill C-36, the protection of communities and exploited persons act.

Bill C-36, as I know you all appreciate, is an important piece of legislation. It's necessary to respond to the legal gap resulting from the Supreme Court of Canada's decision in the Bedford case. It also represents an opportunity to find a better way to reduce harm, and to protect and assist the victims of sexual exploitation. Manitoba supports the bill, but we also ask for changes to reflect the reality of this very difficult issue.

Prostitution is not a victimless crime. Every day vulnerable persons are preyed upon by unscrupulous individuals and groups who sexually exploit them. They're women, men and children. Too many of these victims are on the streets of Winnipeg, elsewhere in Manitoba, elsewhere in Canada, and too many of these victims are Aboriginal people in this country.

The harm caused to these people is severe: alcohol and drug addiction, violent victimization and emotional traumatization at the hands of buyers of sex, johns, pimps, drug dealers and others. Many victims are sexually exploited at a very young age, and even those who escape with their lives suffer from deep physical and emotional scars.

The Manitoba Government does not support the legalization of prostitution, nor the full decriminalization of prostitution, nor de facto decriminalization of prostitution which would occur by a failure to respond to Bedford.

We do not believe the great majority of victims of sexual exploitation have any meaningful choice in becoming involved in and staying involved in prostitution. There's a significant correlation with childhood sexual abuse, substance abuse, financial dependency, and coercion by street gangs and organized crime. It's unreasonable to expect that the victims of sexual exploitation can exit the sexual exploitation without appropriate laws and supports to assist them.

We believe that, to protect and help the victims of sexual exploitation, Canada needs to consider a new approach to address prostitution that focuses on reducing the demand for the purchase of sex and assisting victims to escape. Without demand, there would be no incentive to coerce others to engage in prostitution or human trafficking.

The approach first tried in Sweden, known as the Nordic model of prostitution laws, flows from the premise that victims of sexual exploitation should not be further victimized by criminal charges for selling sexual services. The strategy to free them is to attack the demand side of prostitution by penalizing johns, making it a criminal offence to purchase sex and by penalizing those who exploit victims for profit.

In the Nordic model, the criminal law is part of a larger strategy that includes increasing public awareness of the harms of prostitution, and providing exit strategies and supports to assist victims of sexual exploitation. The Nordic model has been successful in reducing prostitution where it has been adopted. It has significantly decreased street prostitution and effectively ended human trafficking in Sweden.

Several other countries with strong commitments to sexual equality, including Norway, Finland, Israel and France, have since also adopted or are in the process of adopting the Nordic model.

In Manitoba, our police and prosecutors have largely adopted, as far as they can to this point, a Nordic model of demand reduction in dealing with prostitution charges under the Criminal Code. The prosecutors encourage sexually exploited persons to participate in diversion programs to help them exit what they're doing.

In November 2013 the Winnipeg Police Service announced its counter-exploitation unit would not be arresting sexually exploited people, but would instead work with them to see if they could connect them with social work organizations and support groups that could help them leave what they're doing. They would also continue to arrest and charge johns and others who exploit people for profit.

My government supports the Nordic model and called for similar laws in Canada. Bill C-36 primarily adopts the Nordic model, and for that we are very happy.

I do have serious concerns about the provisions of Bill C-36, though, that would criminalize the victims of sexual exploitation if they communicate for prostitution in a manner that stops or impedes traffic, or communicate for the purposes of prostitution near schools, daycares or playgrounds.

We recognize, following submissions from a ''rainbow coalition,'' if you will, of presenters, amendments were made by the House of Commons, I believe with the goal of making the law more clear, but we're asking the Senate committee to take this even a step further.

These provisions that continue to criminalize victims are inconsistent with the Nordic model in terms of punishing and re-victimizing people who are victims of sexual exploitation. It will force those engaged in street prostitution to carry on their activities in more isolated and even more dangerous locations. It will put their safety at risk and could jeopardize the constitutionality of the legislation by undermining the safety of sexually exploited persons rather than enhancing their protection.

The confusing message that would be left if the law passes as it now stands is that sexually exploited people are victims unless they happen to be soliciting close to a school, daycare or playground, in which case they're criminals. I don't think that's the right message. I don't support these provisions. I would urge that Bill C-36 be amended and thereby improved by removing them from the legislation.

In closing, I thank the committee for allowing me to speak on behalf of Manitobans on Bill C-36. I would ask that you give serious consideration to those changes and, of course, I will do my best to answer questions that you may have.

The Chair: Thank you, minister. We will begin those questions with the deputy chair, Senator Baker.

Senator Baker: Thank you, Mr. Chairman, and thank you to the witnesses for their very excellent presentations.

I think we can all agree around this table that both presentations are similar to the vast majority of presentations that we've had before this committee, that this bill criminalizes the act of prostitution and criminalizes prostitutes. Whereas, as your presentations say and as the presentations of the vast majority of people who have appeared before this committee and the House of Commons committee have said, this bill should be amended to remove those particular things.

Minister, I'm encouraged by your suggestion that your government will encourage the prosecution service and the police not to prosecute those people, although this particular bill encourages their prosecution.

You left out one section, however. Under proposed subsection 213(1), the bill states:

Everyone is guilty of an offence punishable on summary conviction who communicates with any person — for the purpose of offering or providing sexual services for consideration — in a public place —

Then it goes on to other areas and, as you point out, in the interference of traffic. However, you didn't mention the flow of pedestrians. I see you nodding your head. Yes, that's also an offence.

Am I to take it from both of you that this bill needs to be amended to remove those offensive provisions and that the Senate should do the amending?

Mr. Swan: I'll start. Yes, I think that would be a relatively easy amendment for the Senate committee to make. I believe it would strengthen the bill. It would take away some of the risks of a successful constitutional challenge, and it would provide for greater protection for people that Manitoba believes are victims. I think you've summarized that quite well.

Senator Baker: Ms. Gosse?

Ms. Gosse: Yes, we agree with Minister Swan on this issue and what you said as well. Criminalizing people who are selling sex is not something we see as progressive for this bill at all. If you are to amend this bill, we'd like to make sure that anyone selling sex would not be criminalized.

Senator Jaffer: Thank you to both of you for your articulate presentations. I will start with you, Ms. Gosse, if I may. I'm a great admirer of the Canadian Women's Foundation and the work you have personally done on sex trafficking. You take every opportunity to speak about this very serious issue. Often Canadians don't believe that sex trafficking exists in our country and you've done great work on this.

Ms. Gosse, I think you will agree with me that at the moment there are two bills — and very soon there will be three — that deal with sex trafficking. In 2005 we had Bill C-49 and we then we had the Joy Smith bill. The Senate will soon be looking at Bill C-452. They were all bills on sex trafficking. With the greatest of respect, I think you will also agree that this bill is not about sex trafficking. I wanted it to be, but it's not. It's a bill about protecting sex workers. I'd like your opinion on that.

Ms. Gosse: There are provisions in the bill that do deal with sex trafficking and are very explicit when they deal with sex trafficking. We were very pleased to see those.

I think the public has a perception that this bill is only about prostitution, which it is not. There are specific provisions that relate to weapons, to destroying documents and to specific increases in criminal offences for those trafficking — specifically, the word ''trafficking'' is used throughout this bill — for trafficking minors, for coercing minors into sex trafficking and for procuring. There is a significant amount in this bill that actually deals with trafficking. We are pleased to see that. It goes further, to enhancing the Criminal Code provisions on that. We are pleased with that.

Senator Jaffer: Nobody would dispute that, but there is legislation in this country that deals with sex trafficking. I was the sponsor of the first sex trafficking bill in the Senate. There are bills, but there is nothing there to protect sex workers. In your brief, you said that you are not experts on consensual prostitution. I would say you are one of the experts in the country on sex trafficking. I think you would agree there are other bills in the country that deal with sex trafficking.

Ms. Gosse: Absolutely.

Senator Jaffer: Minister, beside everything you said, looking at this bill, one of the things that I believe will make your job harder is the issue of how you will advise municipalities. This bill is not clear as to how you will give advice to municipalities on how to interpret this bill when it comes to massage parlours or to different kinds of things for which the municipalities issue permits. I would like to hear your opinion on this.

The Canadian Bar Association stated in their submission to the committee that the CBA's Municipal Law Section raises practical concerns about Bill C-36. As legal counsel for your province, advising municipalities, we believe that Bill C-36 will make it difficult to provide clear advice and that is damaging to municipal governments and the communities they serve.

Are you concerned about the uncertainty about how this bill will affect the cities in your province?

Mr. Swan: From speaking with the Winnipeg Police Service — who have decided their best approach — is to criminalize the johns, pimps and drug dealers and not to go after the victims — as well as the RCMP, which polices most of the rest of Manitoba, both of those organizations have told me that they would welcome these provisions. If massage parlours, strip clubs or other places are used as a front for prostitution, the police would be quite prepared to go there. Canadians, but primarily men, will be aware that if they think they can go to those places with the hope of buying sex, they will be taking a big risk.

Going back to a question that you asked my colleague, this bill is important because it's the first time in Canadian history there's been an effort to reduce the demand for buying sex. If Canadians did not have a demand to buy sex, there would not be human trafficking for sexual purposes. If there was not a demand for prostitution, there would be no risk of people being brought into prostitution at such a young age — sometimes 12 or 13 years old.

I appreciate the comments you've made, but this is the first time in Canadian history that we really have a bill that has the ability to change the way Canadians, primarily men, think about this issue and to reduce demand.

Senator Batters: Thank you very much to both of you for taking the time to be with us today. Minister Swan, thank you for your NDP government's support of this bill.

You've now been justice minister for how many years in Manitoba?

Mr. Swan: Coming up on five years, which makes me the dean. That is why I have lots of grey hair coming in.

Senator Batters: Yes. My former boss in Saskatchewan, Don Morgan, was the dean for a while, but you have now assumed the mantle. Congratulations on that.

You stated at the House of Commons Justice Committee, and you've talked about it also today, that Manitoba's police forces generally do not arrest victims of sexual exploitation, but instead try to connect them with programs and services that would help them exit from prostitution. I assume you are hoping that will continue under Bill C-36. Can you also tell us about Manitoba's Prostitution Diversion Program?

Mr. Swan: I was pleased to read your comments; I understand you led off debate in the Senate on this bill.

For some time now in Manitoba, we've operated a Prostitution Diversion Program. That means, if someone is a victim, they are given the opportunity to go to prostitution diversion camp, if we can call it that. It's a location outside of the city. It's only three days. Frankly, in many cases, it's simply a chance for people to rest, maybe heal a bit, and hopefully receive information that would assist them in making the decision that we know would improve their lives and maybe even save their lives. It doesn't cost anything for people to participate and it means any prostitution charges would then be stayed.

The beauty of the program is that it's paid for by the other side of the equation, which is commonly known as ''john school.'' If somebody is picked up for trying to buy sex in a way that offends the Criminal Code at present, if it's their first time and if there are no other charges outstanding, then they have the ability to have those charges stayed if they attend john school. Men then go and they hear from the Salvation Army, which runs the program in Winnipeg; they hear from experiential women. They may also hear from, if I can use the term, ''reformed johns'' who have been made to understand all of the challenges of what's going on. The best part is that the fees individuals pay wind up funding the prostitution dversion program.

We believe that with the passage of Bill C-36, both of those programs would continue. The Prostitution Diversion Program would continue. We don't think that the threat of a criminal charge hanging over a victim's head is necessary to get them to go to this program. It's well understood and well respected.

It would be our hope, as well, that if Bill C-36 becomes law, individuals would continue to choose to be diverted to john school. It may well be that the classes will be larger until people get the message. It would be wonderful at some point if john school ceased to operate because Manitobans and Canadians got the message.

Senator Batters: Great.

Ms. Gosse, thank you very much for being here. I really thought it was an important message you relayed in one of your three key messages when you said women and girls who are survivors of sex trafficking have been silenced and their perspective must be part of this discussion. You bring a very important part of that to this discussion today.

I thought it was very telling in your 2013 round table discussions when one of your participants stated, ''Sex workers often act as if it'' — meaning trafficking — ''was a choice. They all think like this. They call it harm reduction, but there's no way those children will exit if we keep telling them it's okay.''

This committee has heard testimony from pro-sex work agencies that claim they didn't encourage prostitutes to leave the trade, even when those prostitutes were underage. I'm wondering how you would respond to that.

Ms. Gosse: If you know something like that is happening, it's criminal not to identify that to law enforcement, especially if it's happening with a minor. We believe strongly that any trafficking is an abhorrent crime.

Our National Task Force on Sex Trafficking of Women and Girls in Canada has stated that there needs to be a prioritization on minors and a focus on anyone being trafficked. The significant crime of minors being exploited through prostitution is occurring in this country. I think Canadians generally don't understand the numbers this is happening to.

We did surveys across the country with front-line service agencies who told us time and again that they are seeing girls trafficked at exceptionally early ages, 13 and 14, and this is from coast to coast to coast. We are hearing that girls are being exploited through prostitution, as well. It's an absolutely abhorrent crime and it needs to stop.

Senator Joyal: Thank you. Welcome. My first question is for Ms. Gosse. You brought to our attention what I would call the law of unintended consequences whereby in trying to criminalize sex sellers, we might in fact stigmatize them in a deeper way. I read your brief on page 4:

We have also learned, in fact, criminal charges against sex sellers do not provide these individuals with the services or protection they require. Instead, such charges increase their vulnerability. Bail conditions, for example, often restrict a woman from a familiar location, with their relocation increasing their vulnerability, at times even causing homelessness. Further, many sexually exploited and trafficked women we have met with said that they had been charged with prostitution offences when human trafficking charges could not be substantiated.

That's a very troubling assertion that, in fact, we are victimizing them twice, first because police forces are unable to prove the trafficking and, second, by charging them, they are then facing a criminal record, which would make their reassertion more difficult and create additional harshness for them.

Could you comment on which real-life experiences you are basing that assertion?

Ms. Gosse: The National Task Force on Sex Trafficking of Women and Girls in Canada went across the country and did site visits in 10 cities and met with representatives of law enforcement and front-line service agencies. Most important, in those meetings, we also met with over 160 sexually exploited or trafficked women and girls. They've asked us to call them experiential women.

They told us, many of them in many instances, that trafficking is very complex and at times it is very difficult for the victims of trafficking to identify that, first of all, they have been trafficked and then to identify their trafficker as someone who is exploiting them. There are times when they feel like these people whom they see as assisting in their lives and may be a boyfriend-type to them. What ends up happening is that if they are unable to describe the process well, in some instances, when they're dealing with police and law enforcement, the law enforcement officers, who in many cases are well intentioned, may try to charge them with prostitution offences so they can in fact deliver and provide them with services in order to assist them in their position.

But criminalizing these women and girls, then, who have these criminal charges in their past, face enormous uphill battles. In fact, one of the recommendations from our National Task Force on Sex Trafficking of Women and Girls in Canada speaks to expunging the records of women who have not only been trafficked but also charged for selling sex. If these women and girls who have been trafficked are then charged with criminal offences for prostitution, you can clearly see how that would be absolutely awful. You are really criminalizing the victim again by doing that.

Senator Joyal: Mr. Swan, what about the criminal records of prostitutes? If we assert in the preamble that they are all victims per se, should we not address the issue of criminal records in a different way in relation to those women? Or should they not benefit from a presumption that before a criminal record is assigned to them, they have a chance to prove they had been victimized?

Mr. Swan: That's an interesting idea. Quite frankly, that wasn't in our submission either to the House of Commons or to the Senate today. It is an interesting point. If through Bill C-36 certain activity that people have been convicted of in the past is no longer a criminal offence, should there be some consideration given? If the goal is to stop revictimizing victims, I think it's a very interesting idea.

Senator Joyal: Yes, because the Bedford decision had struck down three sections of the Criminal Code, but there is then the other one. If we claim and accept the assumption that all prostitution activities make women victims of a situation, how should we consider criminal records in relation to that assumption? It seems to me that there should be a possibility in the act that a person could request not to have a criminal record on the basis that that person was seen as a victim or a commodification of a human body. If all of those assumptions are real, they should have some legal consequence in relation to a criminal record.

I'm not suggesting that we should brush away a criminal record in all cases, but at least the person should have an opportunity to request that a criminal record not be granted to such a person because that person has shown the capacity or the will to reintegrate and to benefit from the services that Ms. Gosse has been talking about in her brief. It seems to me there should be logic in the bill in relation to the assumptions that are stated in the preamble.

Mr. Swan: Well, that's an interesting idea. Again, it hasn't been a part of our submission, but I take your point.

Let me restate it. Bill C-36 we think is going to change the way that Canadians look at this issue. We think it's the right way, from what Sweden and a number of other countries have done. I believe, senator, you pointed out an interesting fact. If, indeed, this is a sea change in the way we look at this very complex issue, then maybe there should be procedures developed in future to assist victims who have been convicted in the past to get a pardon or to otherwise get out from under the criminal past they have. I think that's an interesting idea.

[Translation]

Senator Dagenais: My question is for Ms. Gosse. Your organization is doing research on policies and innovation. Right now, the bill is meant to be a tool to better protect the most vulnerable in our society, who are often picked up in places with minors, in schools, youth centres and so on. Has your organization thought about setting up prevention programs to promote prevention to minors?

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Ms. Gosse: We have, and our five-year strategy that the Canadian Women's Foundation has just announced will include granting to about 20 organizations in the next five years, but they will be longer-term grants. We will be entertaining proposals that will look at awareness-raising on the issues of trafficking, but we also have a lot of tested girls' programs as well, and healthy relationship programs that we promote and we fund throughout the country as well, that assist with young people's understanding of healthy relationships, what violence is, and we'll also be moving forward to look at providing education in the schools on human trafficking and the signs of human trafficking as well.

That also means that people in positions of knowledge and authority, like teachers, should also be trained, so we have looked at organizations in Canada, but also organizations in the United States that have been very successful at administering programs like that. We'll be looking at other successful models in the future. We've just announced the five-year strategy last week, so we will be moving on that shortly.

Senator McIntyre: There is no question that the subject of prostitution has been analyzed by a number of committees at the federal level and by a provincial-territorial working group over the years. What's interesting to note is that the various committees and working groups that have considered the matter have been unable to come to any agreement on how to go about framing this activity. However, these groups were able to agree on one thing: that programs be developed to fund agencies to help those involved in prostitution to exit prostitution.

These groups also recommended that the governments of the day review their social programs, housing crisis intervention and counselling services to ensure that they effectively meet the needs of persons who engage in prostitution. I know you have referred to programs, but I'm more interested in the social programs, the housing programs, for example. I would like to have your thoughts on this. How effective have those social programs been to help sex workers exit prostitution?

Mr. Swan: I can speak from Manitoba's perspective. For more than a decade we have been offering programming that's under the heading of what we call Tracia's Trust. Tracia Owen was a young woman who took her own life, who had been sexually exploited. We have about $8 million of programming directed towards efforts to assist youth and adults who have been sexually exploited.

In terms of intervention, there is a program called StreetReach. I will see the StreetReach van in my own area of the city. It's an effort to help youth escape exploitation, to try to help prevent high-risk runaways from being sexually exploited, which is one way that young people are often exploited, and better identify people who are predators, and to try to identify drug houses so that our safer communities unit can go and shut them down.

StreetReach also coordinates the outreach of more than a dozen organizations, including police, the agencies, child and family services, and other groups. We've added more positions and we have expanded this to northern Manitoba.

There are a number of exit programs that we are sponsoring. There is a safe rural healing lodge to stabilize and heal the most entrenched youth. Hands of Our Mother Earth, or HOME, has been operating since November 2011. It's a rural healing lodge for female and transgendered sexually exploited youth, age 13 to 17. Being picked up for a prostitution offence is not a prerequisite, but it is true that some of those youth will have been exploited in that way.

We have a trafficked persons response team, tying together police, border services, labour and immigration staff within Manitoba, as well as service providers. They work closely with the Salvation Army to help us to get out in front of this.

There are a number of other programs. For example, Transition, Education & Resources for Females, or TERF, has a youth mentor program run by the New Directions agency here in Winnipeg, again to try to help young people who may be sexually exploited to make their escape.

One of the challenges, senator, is that so many of the individuals that these agencies are trying to help are so damaged, both from before they became sexually exploited, but also from what they have suffered through sexual exploitation, that it really takes a multi-faceted approach to help these young people out.

As I said, Manitoba invests about $8 million a year into programming. I know that as part of Bill C-36 there has been a promise of $20 million from the federal government. We've learned that's going to be spread over five years, which is about $4 million a year. I'm now led to understand that money will not come directly to provinces and territories but will go to groups within provinces and territories doing that work.

Manitoba's share, if we go on a per capita basis, which may or may not be right, would be about $200,000 a year. When we add it to the $8 million we are already investing, it's a start. Certainly, we would like the federal government to step up in a bigger way to help us. We certainly wouldn't have agencies turn that money down, but everyone needs to understand that these are difficult cases. These are people who have suffered a lot, who really need help.

Senator Batters: Ms. Gosse, we've heard from law enforcement officials that a prostitution law often gives them the clarity they need to intervene in exploitative relationships, so even if they don't have enough evidence to prove sex trafficking, they can use the prostitution law to separate the person who is potentially being trafficked from their pimp or other person who is exploiting them, to determine if there is exploitation there.

I'm wondering if you agree that criminalizing johns and pimps will have an effect on sex trafficking in this respect?

Ms. Gosse: One of the recommendations from the Task Force on Trafficking of Women and Girls in Canada was, in fact, to do that. I can say that the trafficking task force looked at that issue specifically and heard this from experiential women across the country, so, yes, to your question.

Senator Batters: Minister Swan, everybody here in this room could probably agree that overall prostitution is often accompanied by other unsavoury and dangerous criminal activity. You spoke before the House of Commons Justice Committee about johns in Manitoba having to clean up back lanes full of condoms and syringes as part of their punishment. I think that's excellent. There are places in Canada, and I'm sure in Manitoba, I'm sure in Saskatchewan, where I'm from, where this type of paraphernalia is left near schools, playgrounds and daycares. I'm wondering if you consider that a health hazard for children and what do you think is the best way to avoid that?

Mr. Swan: The best way, of course, is not to have men coming to areas like the west end of Winnipeg, thinking they can buy sex and get away with it.

Is it a health concern? Yes, but the bigger part is the community concern. How do people feel about their community if we stand by and say, ''That's all right, men have to have the unfettered right to buy sex''? It's 2014, times have changed and we believe that Bill C-36, with the changes we have suggested, moves us a long way.

Senator Batters: Do you agree with the provision of the bill that would increase criminal penalties for the purchasers of sex if their transaction occurs at or near a school, playground or daycare?

Mr. Swan: Yes, that is reasonable. Again, this bill is going to be about changing attitudes. The purchasers of sex, largely men, need to be quite aware of that. If they think it's a good thing to come to neighbourhoods like mine to try to buy sex, there will be additional penalties.

Even with those penalties, it will still be our intention to offer a diversion for those individuals being caught for the first time. This may give us grounds to perhaps increase the cost of john school so we can help more women, transgendered persons and men to go to prostitution diversion camp. Maybe then we could expand it by another day; maybe we could have more services to help victims.

Senator Jaffer: Minister, I had asked you about the municipalities, and maybe I'm mistaken but I don't think you answered it so I'm going to ask you again.

My colleague Senator Baker said in the chamber last week that Bill C-36 is confusing, starting out by stating that prostitution should not be a crime, but then including clauses to allow sex workers to hire a receptionist and a bodyguard in order to do sex work. Do you see this becoming an issue on the law enforcement side of things? I would appreciate your comments, minister.

Mr. Swan: In my discussions with the Winnipeg Police Service, Winnipeg being the largest city in Manitoba, with Chief Clunis and his executive team, I have not heard any concerns that this will pose a problem.

We have a brand new mayor and a number of brand new councillors in Winnipeg. We had our municipal election last week. I believe that Chief Clunis and his crew will be able to brief the government.

If it means that various businesses that require licences from the City of Winnipeg are then made more aware that if they are seen to be fronts for prostitution, for the purchase of sex — which is now going to be an illegal act under Bill C-36 — and they could lose their licence, it may actually get some businesses paying more careful attention to that. Then they know that they will be at risk, if the police have reason to believe that these are places where the purchase of sex is taking place.

In extreme cases, of course, Manitoba, like other provinces, has criminal property forfeiture legislation. If there is a business owner that continues to allow their premises to be used for the purchase of sex, there may come a case where investigators believe it's appropriate to move for seizure and possibly forfeiture of that business.

I don't think most business people are going to want to take that chance.

Senator Jaffer: Minister, if I remember correctly, in the house you stated that Manitoba spends around $8 million a year on support services around this issue. Do I remember that correctly?

Mr. Swan: Yes, senator, that's correct.

Senator Jaffer: I understand that the federal government has set aside $20 million over four or five years. Do you think that's adequate to deal with this issue?

Mr. Swan: Again, as I said, if we took the $20 million and divided it over the five years, that's about $4 million a year for the entire country. If that were to be divided on a per capita basis among the provinces, Manitoba would get about $200,000. Given the depth of the challenges that many of the people that I think we all want to help are experiencing, $200,000 is not going to go a long way.

Again, I've been led to understand that money will flow to various agencies that do the front-line work to assist the victims of sexual exploitation. I think that those groups would tell you that, although any additional money is welcome, $200,000 for the Province of Manitoba will only allow us to put a dent in what we know is a big problem.

Senator Joyal: Ms. Gosse, in your brief on page 3 you mention that you have undertaken a review of sex trafficking and sexual exploitation of Aboriginal women and girls in Canada. I would understand, Mr. Minister, that in Manitoba it is an important issue.

Could you tell us the magnitude of the problem in relation to Aboriginal women? Are they the group of Canadian women who are more at risk of being involved in sex trafficking and sexual exploitation?

Ms. Gosse: Yes. Actually, we commissioned the Native Women's Association of Canada to undertake a study for us, and it is very clear that the overrepresentation of Aboriginal women and girls who are sexually exploited and involved in trafficking is significant. They are very clear on that with us. We've actually published a study on that, which they authored.

Senator Joyal: Mr. Minister, what initiative have you taken in Manitoba to address the issue of Aboriginal women and girls involved in sexual exploitation or sex trafficking, as was stated by Ms. Gosse? Have you developed a specific, targeted approach in relation to that group of women, or is it just part of the general approach you have in terms of fighting exploitation of women in general?

Mr. Swan: We also agree that Aboriginal people are heavily over-represented among the ranks of the sexually exploited. Unfortunately, a drive down Sargent Avenue in the riding I represent in the legislature will show that.

Although we don't limit any services to any particular group, we found the most helpful thing is to partner with a number of strong Aboriginal agencies in Manitoba that can provide culturally appropriate assistance to those who may be Aboriginal people.

For example, we work with an organization called Ka Ni Kanichihk here in Winnipeg, which is a powerful organization that uses experiential women, people who have survived sexual exploitation, to try to work with people to get them prepared to make a change and to try to help them do that.

Again, we have worked with the Assembly of Manitoba Chiefs here in Manitoba to make sure they're on board and we have their input in making sure the programming — whether it's delivered through the province or provided through our agencies — is actually going to be able to touch Aboriginal people who throughout their lives have probably felt excluded from a number of different systems and have felt cut off from any assistance.

Senator Joyal: Mrs. Gosse, among the 160 survivors of sex trafficking, how many would be Aboriginal women?

Ms. Gosse: I don't have that exact number for you, and that's a very good question. I should say that out of that 160 probably at least half were. We made sure that the communications that we did and the connections we made in the community to experiential women and girls were basically representative of the population. I would say about half of them were.

The stories and experiences that they related to us, not unlike what I believe the Senate committee has already heard, were extreme, and some of the worst evil that we have ever heard of in our lives. They were incredibly impactful, but they did identify root causes, as well, that needed to be addressed.

I should say that the Canadian Women's Foundation over the last year has granted about $800,000, including grants to Aboriginal organizations. Ka Ni Kanichihk is one of them, which the minister mentioned as well.

Senator Joyal: The concern I have, and I'm sure that you share it, is that as you know with the minimum penalty the Gladue principle cannot be applied by the court. The judge has no other option than to impose the minimum penalty. In the context of the plight of Aboriginal women and Aboriginal communities, especially in relation to that problem, it seems to me we have to take that into account when we want to have the opportunity to give young women or young girls the capacity to reintegrate into a normal course of life.

Mr. Minister, how can we address that issue to make sure that we provide a chance to a person who wants to rehabilitate him or herself within the context of that legal constraint that exists in the law now?

Mr. Swan: Well, we bring in Bill C-36 with a few changes and we stop criminalizing Aboriginal women, men and youth who have been sexually exploited. I think that this bill, with the changes that we're asking for today, is going to do that. The Gladue principles only apply if you're being charged with something and convicted of something. If we change the law so that we stop revictimizing the victims, then we have moved a long way.

If you're talking about the johns, pimps and drug dealers, I have a lot less sympathy. Again, if you're a john in Manitoba and it's your first time being caught, you're able to go to john school. It would be my intention that we would continue to offer that so people can avoid a criminal record and avoid a fine. It will cost them; they have to pay for the diversion program and, again, we use that money to assist victims, which we don't feel too badly about.

As Senator Batters has pointed out, those johns will also get a little taste of the mess and the damage they cause in our communities, which we think is an effective way to get people to change their behaviour.

Really, that's what this bill and that's what the Nordic model is all about, changing people's mind set, changing the way people think about this issue and, by doing that, reducing the demand for all of the harms that are caused by sexual exploitation.

The Chair: We'll have to leave it at that. Ms. Gosse and Minister Swan, thank you for your time and your testimony. It's much appreciated.

We will be back here at 10:30 tomorrow morning to wrap up our hearings on Bill C-36 and give the bill clause-by- clause consideration.

(The committee adjourned.)