Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 19, Evidence - October 30, 2014


OTTAWA, Thursday, October 30, 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 10:30 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

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

We're here today to continue our deliberations 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 into the subject matter of Bill C-36. 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.

With that, let's welcome our witnesses for today. Appearing via video conference from Copenhagen, Denmark, is Gunilla S. Ekberg, Lawyer, University of Glasgow School of Law; and representing the Canadian Bar Association is Ian M. Carter, Member of the Executive, Criminal Justice Section, and Gaylene Schellenberg, Lawyer, Legislation and Law Reform.

Thank you for your attendance here this morning and for your testimony, which we are about to hear. Ms. Ekberg, could we begin with your opening statement?

Gunilla S. Ekberg, Lawyer, University of Glasgow School of Law, as an individual: Thank you for inviting me and for your efforts, so that I can participate via video-link.

The objective of my presence today is to give the opportunity to the committee to get some information and also have the opportunity to raise questions about the 16 years of experience in implementation that we have in Sweden on the Swedish approach to how we prevent and tackle human trafficking.

I suggest that our experiences could inform the deliberations of the committee, as it has informed a number of other countries, who have made serious changes to their legislation and policies on prostitution. These countries include Norway and Iceland. Last week, the Northern Ireland Assembly decided to pass a human trafficking and exploitation bill, which contains most of the provisions that we have worked on in Sweden for so long.

I will quickly give you an overview of Sweden and you can then ask questions, raise doubts or whatever you've heard before about this and I hope I can answer you.

The Swedish approach rests on five pillars. The first one is that we are very clear about our principles and objectives. The principles are based on the idea that prostitution and human trafficking is incompatible with human rights. It's a barrier to gender equality, as prostitution is deeply discriminatory towards those who are affected by it. It's also harmful both to the individual and to society. This might sound a bit lofty, but it has been testified by people who work in law enforcement that these principles have been very important in how they approach their work.

The second pillar of our approach is, of course, the elimination of root causes. The key and core of the second pillar is the elimination of demand — in effect, those who purchase sexual acts from those who are in prostitution. As you know, we've had legislation dealing with this since January 1, 1999. Since then, we have had 5,739 men who have pleaded guilty or who have been convicted of this offense. We also have another offense, which is the purchase of a sexual act from a child. An additional 1,225 men have been convicted of that.

Another aspect concerns awareness raising, which is ongoing and done by government state agencies, educational institutions and, of course, civil society.

The third pillar is that we also have counselling services for men who purchase sexual services, in order for them to change their behavior and not continue with these purchases.

The other aspect of the root causes are socio-economic inequalities, like violence against women, poverty reduction and such. We can see a clear link between violence against women in other aspects of prostitution and, as a consequence, the government has just set aside 15 million Canadian dollars per year, for four years, for the women's shelter associations.

The third pillar is, of course, victims. In the Swedish approach, which is very different from Bill C-36 — which I suggest should be amended — we are very clear that victims of prostitution and trafficking should under no circumstances be criminalized, neither through criminal law nor administrative sanctions of any kind. It's counterproductive. It's also discriminatory under certain international obligations that both Canada and Sweden have signed on to. Such provision must be abolished. It's not helpful for law enforcement either, because it makes women and those others who are in prostitution unwilling to cooperate and give information.

It is also very core in our approach there should be available comprehensive exit programs for those who want to leave prostitution. We've had such groups since the 1970s on a municipal level and I'd be happy to tell you more about their comprehensive services, should you be interested.

I would suggest that last week, in Northern Ireland, not only did they agree that it was important to put in exit programs, but they've also put it in legislation and made it mandatory for the ministry responsible to ensure that those programs are in place. There's no discussion of projects. It is something that is ongoing and should be in place long and short term.

The fourth pillar of our approach is the criminalization of the whole chain of perpetrators. I've already touched upon the criminalization of the prostitution buyers, where those who attempt to purchase or have already purchased a sexual service can be convicted, sentenced to up to a year in prison and given fines based on a percentage of their income.

We also have a strong procuring offense, just as is the case in Bill C-36, which can be applied to advertisements in the same way. There's an aggravated aspect to it, as well, and we have a comprehensive trafficking legislation that covers different forms of trafficking, not just for sexual offenses.

The fifth pillar is effective law enforcement. I could imagine that this might be an interesting aspect for you. We find that ongoing education, training and capacity building for police, prosecutors and judges are absolutely necessary for this approach to be in force. It's important to note that if we're not giving enough resources to the law enforcement agencies, then these crimes will not be prioritized. So directives from the government and from those who are responsible for the law enforcement agencies are essential.

The fifth pillar is accountability. These forms of approaches, legislative and policy, need to be monitored and evaluated, as should other legislation. In Sweden, we have two monitoring bodies. One is the national rapporteur on human trafficking, which has been in place since 1998. They produce annual reports with recommendations to the government — sometimes critical ones — of what to do.

Concerning the social services aspects of this approach, we have the National Board of Health and Welfare which has had their mandate extended to continue to monitor what goes on in social services when it comes to education development, methods, and such.

Then, as you would probably like to talk about more, there is the evaluation aspect. Sweden had an evaluation of our legislation 10 years after it came into place. This evaluation took two years to do and it was extensive. There were discussions with everyone involved. I won't go into details.

Norway did a similar evaluation this year and, when you look at those evaluations, you will see that the results are very similar, which tells us that there are effects and consequences of this approach that are the same in all of the countries where this is to be passed.

I just want to finish with something that I think is incredibly important when we do measures on a subject that is deeply discriminatory towards those who are affected by it and that is that we put aside our political differences and cooperate.

In Sweden, the legislation and all of the other policy measures, when they first were debated there was an enormous difference in the different political parties' attitudes to them, but after negotiations, there was a deeper understanding of the problem. In the end, when the legislation was then voted upon in the Parliament, all of the parties, except one, supported it.

There was a poll done just two weeks ago, just after the election, with all of the parties, that said the same thing, that all of the parties — what is it now, eight, I think — are supportive not just of the approach, but also of how the effects have played out, so that's everything from left to right.

A case in point, just to end this, is that the Northern Ireland human trafficking exploitation bill, which passed on October 20, was only made possible because the two largest parties, the DUP and the Sinn Féin, came together in the end, worked on the legislation, set aside their political differences and decided that to be able to create effective legislation and policies on this they need to work together.

My end question is, of course: Is it feasible to pass such Nordic-style, if you like, legislation in Canada? Yes, I certainly believe that there are no legal or policy obstacles. I think, as in so many other countries, when this discussion is started, the obstacles are more down to, first of all, stereotypical attitudes and discriminatory practices against those, mainly women, who are victimized and in Canada specifically women of indigenous backgrounds.

I also think, and this is important to recognize, and I've seen it in all of the countries where I have been involved, there are individuals, groups and organized crime networks that have a material benefit in keeping prostitution available in a particular country.

Thank you.

The Chair: Thank you. Ms. Schellenberg?

Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you for the invitation to present the Canadian Bar Association's views on Bill C-36 today.

The CBA is a national professional association of over 37,500 lawyers, law students, notaries and legal academics. An important aspect of our mandate is seeking improvement in the law and the administration of justice, and it's that aspect of our mandate that brings us to you today.

Our submission on Bill C-36 was prepared by our National Criminal Justice Section, with input from the National Municipal Law Section. With me is Ian Carter, an executive member of the National Criminal Justice Section. That section is comprised of a balance of Crown and defence lawyers from across the country, and Mr. Carter practises as a defence lawyer here in Ottawa. I'll turn it to him to address the substance of our submission and respond to your questions.

Ian M. Carter, Member of the Executive, Criminal Justice Section, Canadian Bar Association: Thank you for having me here. I want to say at the outset that the focus of our submission is really in raising potential constitutional concerns with the legislation, not from the perspective of a general attack on it. We're not taking any position on which approach to take, whether it be the approach in Germany, Sweden or the U.S.

Accepting for our purposing the general approach is fine, the question is, are there details about the legislation that raise constitutional concern, because the devil is always in the details.

What we've tried to do is highlight particular areas or sections of the legislation that might raise constitutional concerns. There are three major ones that we've raised in there. I would like to focus in my opening statement on two of those, which I think are potentially concerning in terms of any constitutional challenge.

It's important to raise these issues because, from the perspective of someone who is practising in the courts every day, when legislation comes under attack for being unconstitutional. It clogs up the courts with arguments; resources are wasted; and we've seen this recently with respect to the victim fine surcharge where, here in Ottawa, different judges have ruled in different ways. There's uncertainty. The Crown has some 30- to 40-odd appeals on the go. An incredible amount of resources are spent on dealing with constitutional problems with legislation. So we raise these issues to bring them to your attention as potential concerns to address. We're not taking the position that the legislation as a whole is unconstitutional.

The two areas I'd like to address relate to section 286.2 and what I'll call the commercial enterprise exemption for the material benefit. The starting point, you can see it in our submission, is — and I know there have been comments to the effect, both in the Department of Justice technical paper and otherwise — that prostitution is now unlawful, but the reality when you look at the legislation is that one side of the transaction is lawful. Except in the one circumstance where you're communicating near a school, other than that, the concept of selling sex is not unlawful. When you speak about the criminal law, in order for somebody to be unlawful, there has to be a provision that makes it unlawful. That provision does not exist in this legislation.

The second point is, all right, one half of the transaction is declared unlawful, so an argument might be made that if you sell you could be a party to the offence, and that's a legitimate argument. Then, of course, there's the exemption in there that makes that act not unlawful.

In conjunction with the fact that there's no provision prohibiting it, in conjunction with the fact that there's an exemption, the reality is the selling of sex is still unlawful.

That's important because that's the centrepiece of the Supreme Court of Canada's analysis in the Bedford decision. Of course, this legislation is a response to that.

If you accept that, then the issue becomes the factors that are raised in Bedford that they're concerned about — the competing goals, the fact of gross disproportionality — if you're going to be allowing this activity still and if you're not banning it outright, are you putting these individuals in a dangerous position? Really, at the end of the day, that's the point that the court makes in Bedford through various constitutional arguments under section 7 for the most part.

With respect to section 286.2, what happens is, all of these safeguards that the Supreme Court of Canada referenced — being able to hire a bodyguard, all of these individuals that could provide some support and increase safety — there are exemptions in there under the new legislation, which are great and address those concerns. But then there's an exemption to the exemption that deals with the commercial enterprise. The term is undefined, so the problem becomes, you've recognized that you're going to allow this activity to continue, despite the overarching objective, which is to eventually get rid of prostitution — you're going to allow it to continue.

According to Bedford, you have to make safe conditions. The bill creates safe conditions by building in these exemptions in the material benefit, but it takes them away for a commercial enterprise.

So situations which may make the acts or behaviour safe — working in groups — potentially take all those protections away, and so all of the concerns that were raised in Bedford come back in that circumstance, and that's why we're recommending that the exception for common enterprise be removed. The rest of the bill, if that were to be removed, in our position, would be constitutional.

The second provision relates to the ban on advertising. Again, accepting the proposition that the activity is not banned outright and is going to be allowed to continue, that's why these protections are put in place. One of the things the Supreme Court of Canada in Bedford noted was that communication is important to ensure safety. Screening, for instance; advertising is part of that. The ban on advertising really, anybody who could assist in doing it — whether it's an Internet service provider or a publisher of a newspaper — faces criminal liability if they assist in this endeavour. Therefore, an individual who is attempting to sell their services cannot avail themselves of any advertising and cannot screen clients on the Internet — various things that the Supreme Court raised that were important. This ban on advertising, given the fact that selling remains lawful, in our view, is potentially unconstitutional.

Those are my submissions.

The Chair: Thank you very much. We'll now move to questions, beginning with the committee deputy chair, Senator Baker.

Senator Baker: Thank you, witnesses. You've given some very comprehensive analyses of the bill. The Canadian Bar Association is to be congratulated for their very comprehensive submission that they've made to this committee. I'd also like to recognize the great contribution made by Ian Carter to case law in this country. He's to be commended for his continued reference in case law to the many cases that he litigates.

I have two basic questions. One involves the question of the intention of Parliament in passing this legislation. Normally, when the courts look at the intention of Parliament, they would look at the preamble, look at the content of the legislation, and then look at the intent of the minister in the speeches given by the minister in Parliament in introducing the legislation as to the purpose of the legislation.

I'm wondering if the witnesses could comment on this question. When you look at the preamble, it certainly reflects partly what the minister claims the object of the legislation is and that is, for the first time in Canadian history, to make the act of prostitution illegal. When one looks at the contents of the legislation, as Mr. Carter has pointed out, it responds to the Supreme Court of Canada and allows a prostitute to carry on a business within the confines of her apartment or her home, allows her to have a bodyguard, allows her to have persons who are assisting her and so on.

What do the witnesses think would be the conclusion of the courts as to the intention of Parliament? Is the intention of Parliament to make, for the first time, the act of prostitution illegal, or is it, in fact, a response to Bedford in allowing a prostitute to operate under certain conditions?

Mr. Carter: I can deal with that question.

We've identified three primary objectives. Unlike some other pieces of legislation where there might be one objective, I think there are multiple objectives contained, including protecting prostitutes, protecting communities from the harm caused by prostitution, and reducing the demand for sexual services. Those are the three primary objectives and any constitutional argument is going to be considered through that prism. It will be a very different argument than was in Bedford.

To the extent that there are comments made that they have made prostitution unlawful, in my respectful submission, unlike other comments about the general objectives, something is either unlawful or it's not unlawful. Criminal law needs certainty. If you're going to be charged with an offence, it needs to be in the code. You have to be made aware of it. These are long-standing principles. There is no offence of ''offering for sale'' or ''selling.'' It's not there.

Regardless of the objective, the courts in the constitutional analysis will look at the content of the legislation first. Looking at the preamble, debates in Hansard and everything else can inform where there's ambiguity, but the reality in this case is that there is no prohibition against it. On that issue, I don't think that those comments in the preamble or otherwise will be particularly helpful.

That said, the three different modes or objectives, if I could call them that, will inform the analysis, the general ones, including reducing the demand for sexual services. That's part of it now. When they look at that intent, it won't be like it was in Bedford where it was a common nuisance problem that they were worried about and they felt it was grossly disproportionate. They'll now have to examine it with one of these objectives in mind.

Senator Baker: Ms. Ekberg, could you comment, and also I'd like to have a comment from Mr. Carter as well, on the fact that this committee yesterday heard the Minister of Justice who addressed this committee and assured us that he would be encouraging prosecutors not to prosecute a prostitute and encouraging the police not to arrest a prostitute after this legislation is passed.

Ms. Ekberg, and also Mr. Carter, you both have asked us to amend this legislation to remove the offensive provision that criminalizes prostitutes who, for the purpose of offering or providing sexual services in a public place, or if they're impeding traffic or impeding pedestrians. Both of you have said, ''Look, amend this legislation to take that out.''

How do you respond to Ministers of Justice in Canada who are informing this committee that they're not going to prosecute under those sections? What would be the effect of having ministers of justice make that determination that they will not carry through on what they can do under this legislation?

Ms. Ekberg: It's a bit difficult for me to comment on a comment by the Minister of Justice that I have not seen myself. However, to avoid any complications, I would suggest that the provision is taken out rather than having a provision that is then not implemented, which is in reality the case at this moment. Some police authorities in Canada are, in fact, not using the current provision against those who are victims of prostitution.

I just wanted to add also that I would prefer if we didn't use the word ''prostitute'' because these are individuals who are marginalized and who are in a situation of control, so let's call them ''individuals in prostitution.''

I would argue that an amendment would be the best way to go, as was done, I want to underline, in Northern Ireland, where there was originally the same proposition that selling, to so speak, of sexual services should be criminalized. They lifted that out after deliberations and thinking about possibilities of enforcement. Now, in Northern Ireland, as it is in Sweden, Norway and Iceland, those who are victims in prostitution, those who are exploited in prostitution, will not be criminalized, and then there is not the problem with enforcement.

Senator Batters: Thank you very much, all of you, for being here today. Ms. Ekberg, I really appreciate you being here. You're one of the architects of the Swedish model and you have provided us some valuable information, including this very new information about Northern Ireland that we hadn't previously heard because it's so new. Thank you for that.

To my understanding, you're a lawyer and you've worked on prostitution and human trafficking since the late 1980s in a number of countries; is that correct?

Ms. Ekberg: Yes, and I was the special advisor to the Swedish government for six and a half years, being responsible for the development after the legislation was passed of a more comprehensive approach.

Senator Batters: All right.

Ms. Ekberg: I'm a Canadian lawyer and lived in Canada for many years.

Senator Batters: Great.

Ms. Ekberg: Now I'm doing research on prostitution and trafficking. Case study countries are Sweden and the Netherlands, so I know quite a lot about both if you need to ask questions.

Senator Batters: Thank you. You testified before the House of Commons Justice Committee back in July. I'm going to read a bit of a quote from you.

. . . there is a close link between the existence of legal brothels and other legal or illegal prostitution-related activities in a country, and the attraction for pimps and traffickers to bring women to those markets, and also for the men who purchase to actually show up in those markets.

You also said the existence of strip clubs, body rub parlors, escort services, et cetera:

. . . has a direct impact on the scale and extent of prostitution-related activities and human trafficking into and within Canada, and of course, the creation of victims both in Canada and in other countries.

You also said:

If you enforce vigorously criminal provisions against the whole chain of perpetrators — buyers, pimps, and traffickers — we also see that traffickers and pimps will not establish themselves in the country or in that particular community. That has also been recognized by those countries in Europe that have a legal or decriminalized system.

Can you tell us what research you've seen to substantiate that?

We've also heard from some witnesses who told us that prostitution is an empowering legitimate career choice and I am wondering how you would respond to that?

Ms. Ekberg: I would be happy to provide the committee with different reports, articles and observations on the effects of the decriminalization and lifting of brothel bans, for example in the Netherlands.

There are clear actions at the moment in the Netherlands where large prostitution districts, such as the 143 canal boats with brothels in Utrecht that were closed down this year because of the absolute understanding that all of those women were victims of trafficking. The owner that ran this brothel district was appealing this decision, and the decision was upheld last week. This is just a very small example of many measures being done in the Netherlands.

There is recognition in the Netherlands, Germany and other countries that they have created something difficult to control. They know organized crime networks are involved, and it is recognized by Interpol and other police organizations that that is the case. We can see in Sweden, as well as in Norway and Iceland, that pimps and traffickers are not seeing these countries as the most attractive markets anymore because there are business hindrances or obstacles to establish yourself.

As for prostitution being empowering, that is not my experience. I have a long experience, prior to becoming a lawyer, as a social worker and worked with women in prostitution in several countries, including Canada. I have met many women who have been in prostitution.

It is important to recognize if you ask a woman who is currently in the prostitution industry, you will get a different answer than if she has an option to leave. For example, the latest research done in several countries, including Canada in Montreal, Quebec, says most women, when they are asked if they want to be in prostitution, will say they do not want that. In Northern Ireland, it was 75 per cent and in Quebec between 80 and 90 per cent.

The result of being in an inherently violent and controlling environment makes it impossible to have a critical view of what is done to you. A parallel, which I often use, is women who live with abusive husbands. If you ask them if their relationship is okay and the husband somehow is present, either in the house or will come back, she will say there is not a problem. If she has been able to leave and go to a shelter, she will have a very different view of it, especially if she can see she can have a life outside.

With all due respect to those who think that prostitution is empowering, if that's so, fine. But my experience is that the absolute large majority of women, young men, et cetera, who are in prostitution do not have that experience. In particular, in Canada, when we look at the large part of indigenous women and young men who are prostituted, I think they would not answer that question with a yes to it being empowering.

Senator Batters: Thank you to the CBA lawyers for being here, and Mr. Carter for acknowledging that your association is not taking the position that the bill as a whole is unconstitutional. You also pointed out that if this was to become another constitutional reference or case before the Supreme Court of Canada, there would be very different arguments advanced because of significant portions of this particular act that were advanced in Bedford.

Just to point out a couple of examples where asymmetrical criminal law is done in Canada, one is child prostitution because of course there is recognition of the exploitation that exists in that particular situation. When professor Janine Benedet testified before committee, she mentioned someone charging a criminal rate of interest. That is a crime, but not for someone paying a criminal rate of interest because there is recognition of inherent exploitation and a power imbalance. How would you respond?

Mr. Carter: I agree; those are examples of asymmetrical. We're not taking the position that the fact it's asymmetrical causes constitutional problems. I read the transcript of Alan Young when he came here. He said there were potential arguments about the asymmetrical nature. We're not advancing any of those arguments. We haven't highlighted that as a concern in and of itself.

Our submission is premised on the fact that, accepting you're taking an asymmetrical approach, the practical reality is that one side of the transaction is not unlawful, so all the comments of the Supreme Court of Canada in Bedford are still at play. If those comments and arguments are still at play, and looking at the particulars of the legislation, are there any areas where there is potentially a constitutional argument because this provision is issue grossly disproportionate, arbitrary or overbroad, which are the three constitutional arguments in Bedford. The fact it's asymmetrical in and of itself is not, in our submission, a constitutional problem.

It sets up the argument in Bedford. In Bedford they start with the notion that it's lawful to sell in Canada. They refer to it numerous times throughout the decision; it informs their analysis. As long as it remains lawful still, that analysis remains intact and that's our point.

Senator Jaffer: Thank you for your presentation. I understand it being asymmetrical, but I'm struggling with this in the sense that if you say the buying and selling is one act, as a policy matter, the seller is not going to be charged; the buyer will. Aren't there issues of entrapment? I don't think that will happen. I don't think that the state would not charge the seller of the services, but what about the bodyguard who makes it possible? They are helping with a criminal act. What about the brothel that has the person come in who will then commit a criminal act? I'm struggling with these issues.

Mr. Carter: The first point is entrapment, and entrapment is an argument made factually on any given record in a case. It's not a constitutional argument about the provision. It depends on the actions of the officers, and entrapment arguments have been run on the old prostitution provisions and drug trafficking cases many times. It's not a defence that's often successful, to be frank, but it doesn't inform the constitutional analysis. The second point —

Senator Jaffer: I'm not talking about constitutional. I get the point. I'm not asking you a constitutional question, because you do practise criminal law. I'm speaking generally.

Mr. Carter: Generally, could entrapment occur?

Senator Jaffer: You answered that.

Mr. Carter: With respect to the other point, it dovetails back into our submission about the commercial enterprise. You used the term ''brothel'' and when you get into a brothel situation, commercial enterprise isn't defined, but I think that would meet the definition of commercial enterprise. The exemption would no longer apply on the material benefit and anybody who is supporting, even though it's not the worker herself, it's going to be everybody else. The support network disappears. Those people are all criminally liable as soon as you enter a commercial enterprise situation.

I'm assuming the purpose of putting that exemption in was to target organized crime groups. All the other provisions, many of which we haven't taken issue with, particularly the procurement provision, in concert with going after the johns and all the other exemptions — with the exception of commercial enterprise that deals with threats, coercion — is going to capture all of that activity. If you have that parasitic relationship, all of those other provisions will capture that behaviour. You don't need the commercial enterprise. If it was just a matter of not needing it, that's one thing; but if you don't need it and it causes harm, that's a constitutional problem.

Senator Jaffer: Ms. Ekberg, I know of your work and have followed it for a long time. I regard you as not just an expert but as somebody who cares and has spent her life working on these issues.

I have been thinking about this, probably not as articulately as you, since June of this year about this issue. I have been working on it and have changed my mind. I will explain. I believe that if a woman makes by choice the decision to become a sex worker, then I believe that the state owes her a duty to protect her. I don't want you to repeat your answer to Senator Batters' question; I accept what you say. It is not an empowering choice. However, I do not feel it's for me to make the decision about empowering choice. If it is a sex worker's choice, not trafficking or exploitation, does the state not have a duty to protect that person?

Ms. Ekberg: When we create legal and social policy, we always have to make decisions about what side we're standing on. In the case of prostitution, as we have done in Sweden, we stand on the side of those who are exploited. We know from research, experience and all kinds of sources that this is the absolute majority of those who are in prostitution. We stand on their side to ensure that those who exploit them directly — the demand prostitution buyers with their sexual abuse of those individuals, mostly women — and the people who materially benefit or profit from them are controlled.

If there are women who make this a choice, we do not interfere with them. However, we are also saying that there is a societal interest to remove discrimination against women. We believe that prostitution is not only a form of discrimination but is also a form of violence against women. We have a choice to make and you have a choice to make, as a lawmaker, about whom you're going to protect.

I would like to shift the focus. The debate in Canada is interesting because the focus of the debate is on those who run the enterprises and those who are voluntarily in prostitution, as it's argued. What we can see in other countries, as well as in Canada, of course, is that is a romanticized view and vision of what the prostitution industry is about. It is one of the most violent situations you can be in, no matter how it is regulated. Those who benefit, the procurers and the traffickers —

The Chair: I apologize, but have only a little less than 20 minutes left and there aer five or six senators who wish to ask questions. I ask our witnesses and senators to try to be as concise as possible.

Senator McIntyre: Mr. Carter, in your opening remarks, you made reference to constitutional issues that could affect Bill C-36, and Senator Baker spoke about the intention of Parliament. In reading the Bedford decision, I know the court had this to say in paragraph 165:

The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.

In my opinion, after reading this, the court made it clear that its decision does not prevent Parliament from imposing restrictions on the manner in which prostitution is practised and on the places where it may be practised, as long as those restrictions do not infringe upon the constitutional rights of sex workers.

As noted by justice officials that appeared before us a few weeks ago, the court is asking us to look not only at what is criminalized, but also at what is not criminalized; and that informs the constitutionality of each individual provision. Do you have any thoughts on this?

Mr. Carter: I agree wholeheartedly with your interpretation. That's what the court says, and we live in a democratic country. It's up to Parliament to determine how it will regulate the matter. That's why the position we've taken is not holus bolus that this bill is unconstitutional. We tried to argue, accepting that Parliament has the right to regulate and make policy choices about how best to deal with the issue. If you make those choices based on the problems they found in Bedford, is there anything about the proposed legislation that's constitutionally problematic?

We have highlighted those particular areas. I believe there are three in there, two of which I have raised in my opening statement. In particular, the commercial enterprise is problematic because, when looking at the issue of gross disproportionality, it causes potential harm and exposes workers to danger with little benefit, especially given all the other provisions. That's one of the things the Supreme Court says about the constitutional analysis. Let's look at all the provisions. A change here might affect how we view it elsewhere. It could make it constitutional, or it could make it unconstitutional.

The fact is you have provisions dealing with the danger already in place, and you have added something that potentially makes things dangerous for the workers.

Senator McIntyre: It seems to me that the court is saying we can have certain safety measures on one hand, and on the other hand have measures that criminalize other aspects of prostitution, such as selling sex around playgrounds and schools; so you can have both.

Mr. Carter: Agreed. The question is based on the proposed legislation. Are there any concerns, based on the Bedford decision, from a constitutional perspective? We've indicated the ones that we think are potential concerns. They are limited, but they are there.

Senator Joyal: Welcome. You mentioned in your presentation that you have three constitutional concerns; and you elaborated on two. What is the third and can you explain it?

Mr. Carter: The third one relates to the communication provision. It has been modified and now only occurs in public places in or near a school, daycare et cetera.

The potential concern is that the court found constitutional problems with the original communication and the danger to concerns by removing communication. Communication is still restricted, so the constitutional concerns remain. The question is: Now that they have narrowed it, is it enough to make it constitutional? I can't give a definitive answer to that. We would need an evidentiary record. I think when Alan Young was here he talked about the importance of having an evidentiary record.

We raised it as a concern because it was a concern of the court. The reality, in particular for street workers, is that there may be little choice in terms of where they are going and they may happen to be near a school. Does it force them into other areas? These questions will come up and it depends on the evidentiary record. The concern raised by the court in Bedford might still exist.

Ms. Ekberg: May I comment? I think that the same objective could be reached, meaning not having any prostitution going on outside the indicated places, by using the provision that criminalizes the purchase of a sexual service. If that is effectively implemented, the same objective would be achieved. There would not be any prostitution in those areas. It would take care of the constitutionality and remove fully the criminalization of those who are in prostitution. We have had long experience of seeing that being effective in Sweden.

Senator Joyal: It helps to understand the scope of that section.

Why do you think the government has removed the definitions of ''prostitute'' and ''bawdy house'' from the Criminal Code? We heard that the objective of the government is to restrict prostitution as much as they can but, in fact, they removed from the Criminal Code two existing realities: first, prostitution; and second, bawdy house.

It seems to me that it weakens or contradicts to a point the objective of the bill by trying to remove ''bawdy house'' from one of the realities where prostitution happens, and ''prostitute'' is exactly the same connection with the existence of bawdy house. Why do you think those two concepts have been removed from the Criminal Code in relation to prostitution?

Mr. Carter: I can't speak to parliamentary intent. All I can say is I agree with you that, having done so, it certainly strengthens any argument that the selling, that aspect of the transaction, remains lawful and so cuts against any argument that they have made it unlawful. That's all I can say about that.

Ms. Ekberg: As my colleague says, I can't comment on the intention of why that particular word ''prostitute'' is removed. My opinion about that I've already made clear. There is no such thing as a prostitute. There are individuals who are exploited and so I would imagine, at least in my view, that that would be reasonable to remove it because it is in itself a discriminatory term and not possible to define.

Senator Joyal: Mr. Carter, on the issue of criminalizing the customer and not criminalizing the offer, is it not in a way a contradiction per se of what is normally happening? If you recognize that it is a legal activity to offer sexual services when the person is on his or her own but you can't buy those services in the context in which they are offered, is there not a contradiction per se that negates the intention?

Mr. Carter: It's difficult to give an answer to that. We're not commenting generally on the fact that they've made the one side of the transaction unlawful. Coming back to my earlier point, it makes any comment that prostitution has been made unlawful — it takes away from that objective. If their objective was to make it unlawful, they haven't done so and that's an indication of that.

Senator Joyal: It's more than that, because the objective of the bill is to fight commodification of the human body and it is based on the presumption that all prostitution is exploitative. In relation to that section, the objectives of the bill are negated, in my opinion. The intention of the bill is nullified.

Senator McInnis: Senator McIntyre, and to a degree Senator Joyal, spoke to what I wanted to speak to, but I did want raise it because it hasn't been mentioned here.

You in your brief talked about subsection 213.1(c), and you said that the amendment to that, to a lesser degree, is still susceptible to a challenge under the Charter. Sometimes I think we forget that the Charter is the rights and freedoms of all Canadians. I want to quote section 1:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Having said that, do you not believe that restricting communications to daycares, schools and playgrounds presents ''reasonable limits prescribed by law'' and, further, that these limits can be ''demonstrably justified''? The Charter speaks to the rights of all Canadians and it is incumbent on parliamentarians to legislate for the rights of children, many of whom are not qualified perhaps to speak for themselves.

Could you speak to that? Senator McIntyre said what the courts said and he's right in saying that and we have to listen to them, but there is the Charter itself. Could you comment on that?

Mr. Carter: When a constitutional analysis is undertaken, section 1 is the balancing that occurs only after a breach has been found. There has to be a breach of the Charter, of the legislation found. I would say is this: Historically, the Supreme Court of Canada has indicated that if the breach is of section 7 of the Charter, so it goes to core values, the legislation will almost never be justified under section 1.

The section 1 analysis, however, does come into play more forcefully on a section 2(b) argument, which is the freedom of speech argument. For instance, on the communication provision that you were talking about, if the argument was one on a breach of section 2(b), I would anticipate there would be an evidentiary record put forward. I can't say what the court would find, but the process would occur where certainly the government would attempt to justify that that balance was done correctly.

If on the other hand there is a breach of section 7 — and we've indicated that there are potential arguments with both — then the section 1 argument is very difficult for the government to make in those scenarios.

Senator McInnis: The prosecutors from the Department of Justice came here and said that this legislation would meet the constitutional challenge and said it was good legislation. They are members of your organization. How badly did they beat up on you? Did you talk to them or what took place there?

Ms. Schellenberg: As I mentioned at the beginning, our criminal justice section represents a balance of Crown and defence lawyers. The positions we take are distributed. First, we get input from representatives from across the country, who then pass that along to their local members. All of these people have a voice in approving the submissions and then, once we get it approved by the section, there are two other layers of CBA approvals. It's seen by a variety a different perspectives within the CBA.

Senator McInnis: You didn't have a face-to-face, did you?

Ms. Schellenberg: We did, in April.

Senator Plett: I'm going back to an issue that has been asked about here, but I don't have a legal background and so maybe I do not understand it properly. I want to go back to Mr. Carter's and Ms. Ekberg's concerns that seem, in my opinion, to contradict each other.

Senator Baker mentioned about the Justice Minister that we heard from yesterday from my province, Minister Swan, where he said he was going to ask the police not to charge the sex worker.

My question is this: You're saying that it's illegal to buy sex but not illegal to sell sex, is the way I understood it. If it's not illegal to sell sex, why would Minister Swan need to intervene and tell the police not to charge the sex worker?

Ms. Ekberg's testimony says she's concerned about the criminalization of the sex worker, as are other witnesses. I do not understand something here. They are concerned that they don't want the sex worker criminalized. Swan says he's going to ask the police not to charge the sex worker. If it's not illegal why would Mr. Swan be concerned about that?

Ms. Ekberg: I wanted to raise one thing before that. First of all, I want to invoke Canada's international obligations under the CETA, article 6, which says clearly that anyone who has ratified the convention is to work against and abolish prostitution and specifically the CETA has in their work prior to passing it noted that it is incompatible with article 6 that women in prostitution are criminalized. So that's one thing.

Second, we also need to look at this from a section 15 point of view. The discrimination against women is an aspect that we need to look at also nationally.

Third, as the bill stands right now, individuals in prostitution are criminalized should they be purchased outside of the indicated spaces that are in the particular section. I can't speak for Mr. Carter, but I am interested in that provision being repealed.

My reference to the Northern Ireland Assembly did, in fact, just that, last week, because they realized that the Northern Ireland police will not use that section because they prioritize criminalizing, investigation and prosecuting.

Senator Plett: Thank you. I would like to hear Mr. Carter's comments as well.

Mr. Carter: Thank you. I think Ms. Ekberg has rightfully pointed to the provision, but subsection 213(1.1) doesn't criminalize the act. What it criminalizes is communication. It's the same as the old communication provision, but narrowed to the extent that it can only be prosecuted if it's by a school, daycare, et cetera. That communication provision was already in effect beforehand, and the Supreme Court of Canada said that selling sex is not illegal.

Senator Plett: Should Minister Swan be concerned?

Mr. Carter: There are two things. First of all, a worker can be arrested and charged under this provision, just as they were before. It's a narrower set of circumstances. It's only if it's by a school. Ultimately, that's at the discretion of the police whether they choose to do it, and there's discretion in whether to charge.

In terms of whether there are constitutional concerns, the courts won't consider whether the law is being enforced or not. It's not a factor they consider. If the law is in place, they have to take that as a law. Is it constitutional or not? It will not affect the constitutional analysis at all if there are remarks from a minister indicating they're not going to use it. That's the short answer to it.

Senator Plett: Thank you.

The Chair: Thank you, witnesses. We very much appreciate your appearance and your testimony from Copenhagen, Ms. Ekberg. Thank you for your assistance today.

Honourable senators, we have officials from the criminal law policy section of Justice Canada with us to answer any questions members may have.

Carole Morency is the Director General and Senior General Counsel with the Criminal Law Policy Section. She's joined by Nathalie Levman, Counsel.

Welcome again. We appreciate it, and I would open the floor to any members who may have questions.

Senator Baker: Yes, Mr. Chairman, I wonder if the witnesses have been following our proceedings. The witnesses would know what the major concern or concerns are of the committee as they raise their questions to the witnesses.

Ms. Morency, you've listened to the conversations that have gone back and forth. You know what some of the issues were that were addressed at this committee. I wonder if you could comment on some of those issues that you know were present during these discussions.

Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Justice Canada: Thank you for the question. I think I would suggest to the committee that we might be able to provide some assistance in clarifying two points.

I'll ask my colleague to speak on the issue that was raised in particular this morning by the previous witnesses in terms of what Bill C-36 does and does not criminalize and the impact that that would have on the future Charter challenges based on the Bedford decision.

Second, it might be of assistance to the committee, if the committee is interested, there were some questions, I understand, from previous witnesses about the impact of the Gladue provision on parts of the bill.

That is a suggestion.

Senator Baker: Excellent. Proceed.

Nathalie Levman, Counsel, Criminal Law Policy Section, Justice Canada: The first point I'd like to make is perhaps to take us back to what prostitution is. It was defined in the prostitution reference by the Supreme Court of Canada in 1990 as a transaction: both the purchase and the sale of sexual services.

The Bedford case looked at the constitutionality, as you know, of certain existing provisions in the Criminal Code on the basis that both the purchase and the sale of sexual services were not criminalized and, therefore, adult prostitution was a legal activity. I won't belabour the point, but we know that was fundamental to their finding of unconstitutionality of the three impugned provisions.

I stress that in Bedford they were looking at an activity that constitutes a transaction, and neither side of that transaction was criminalized.

Bill C-36 would fundamentally alter that premise by making the purchase, or one half of the prostitution transaction, a criminal offence. The reason why the other half is not criminalized is because Bill C-36 recognizes that there is an inherent power imbalance in that transaction, and the person who sells is considered or treated as a victim of that transaction.

This is identical, and the provision is identical to the provision in the code right now, subsection 212(4), that criminalizes purchasing sexual services from children. We all agree that child prostitution is an illegal activity in this country and similarly, by analogy, proposed section 286.1 would make adult prostitution an illegal activity. So, just as the child prostitution transaction is made criminal by existing subsection 212(4), so would the adult prostitution transaction be made criminal by proposed section 286.1.

Senator Baker: Good. On the other issue?

Ms. Morency: On the other issue, comments were raised about whether or not the sentencing principle, often referred to as Gladue, applies or is displaced by Bill C-36.

Just to recall for the committee, the Criminal Code, since 1996, has codified all of the sentencing purposes, principles and objectives. Included in that is a principle in paragraph 718.2(e) that basically says that courts must consider all available sanctions other than imprisonment that are reasonable in the circumstances at the time of sentencing and to give particular attention to — this should be for all offenders — as well, Aboriginal offenders.

From my understanding of the transcripts of some of the witnesses, there was some concern about whether this has been displaced by any part of Bill C-36. I would say, no, it has not. It's important to recall that the Gladue principle only applies at the point of sentencing, so an individual who has been found guilty and convicted, and then the court must consider how that applies in the circumstances to the offender before the court at that time.

In the context of prostitution specifically, the issue particularly arises in the context of mandatory minimum penalties. Are these ousted by the Gladue principle? It's not specific in Bill C-36 because the bill, for the most part, is not proposing mandatory minimum penalties, except for where the victim is a child.

Mandatory minimum penalties have been considered. They are before the courts in terms of Charter challenges. I'm aware of one case in particular in Ontario in the last few years where the accused was before the court. It was an Aboriginal offender with a low-end mandatory minimum penalty. The court found it was not unconstitutional and did not violate the Gladue principle.

In terms of how the Gladue principle operates with the mandatory minimum penalty, the MMP is in place wherever it exists. The court sentencing the offender before it must impose and craft a sentence that is fit in the circumstances. That's true for any offender, Aboriginal or non-Aboriginal. It must always be fit in the circumstances.

That is the starting point when you have a mandatory minimum penalty and then the court has the discretion to craft a penalty over and above, between the minimum and the maximum.

If the court found that the mandatory minimum penalty was an inappropriate starting point, it violated the rights of the accused guaranteed under the charter, then the court would look to find the MMP unconstitutional in those circumstances.

All of that, by way of background, does not really play out, from my understanding of Bill C-36. I understood some witnesses may have questioned how it impacted on the mandatory minimum penalties.

If there was concern that it would impact on the communicating offence, then there's no mandatory minimum penalty there either. The court would not be prevented from considering the application and would be required to apply paragraph (e) to the offender before it, whether it's one procuring material benefits, purchasing offence or the narrow communicating offence as well.

Senator Baker: Good.

Senator Batters: Just to that particular point, if I could just ask a supplementary.

The types of mandatory minimum penalties, can you just outline them for this committee? You just briefly mentioned it now at the end of your answer, but we're not looking at anything to do with sellers of sexual services in any way, dealing with mandatory minimum provisions in this bill. Can you explain what particular mandatory minimum penalties and who that would potentially be applicable to?

Ms. Morency: Bill C-36 is maintaining some of the existing mandatory minimum penalties and increasing others that we have where the victim is a child, either in the prostitution or the human trafficking context.

Senator Batters: For purchasers or pimps, right? Procurers?

Ms. Morency: For those and for human trafficking, any of the actions there. For the purchasing, you have fines that are imposed, mandatory fines.

Senator Batters: Right, but not any of this is for sellers. There are no mandatory minimum penalties for sellers?

Ms. Morency: No, it's maintaining the same penalty that exists now and the provision that the Supreme Court has found unconstitutional and it's been reformulated, but it's still a six-month summary conviction maximum penalty, and the court is still going to have the option of imposing — if a person is before the court on the new communicating offence, the court is still going to have the same range of sentencing options that are available to a court today from an absolute discharge up to and including the maximum term of imprisonment.

Senator Batters: Right, yes. Ms. Levman, do you have anything to add to that?

Ms. Levman: No, my colleague has answered. Thank you.

Senator Jaffer: I have a number of things I'm struggling with and I need your help, and one is that are brothels going to be — after this bill — legal? Let me not say ''brothels.'' Let's say massage parlors. I imagine they will still be legal provided that there isn't a sexual act at the massage parlor; is that correct?

Ms. Levman: Yes. I'll refer back to Minister Swan's testimony yesterday when he was talking about massage parlors or strip clubs or escort agencies being used as a front for the purchase of sexual services, and where that is the case, Bill C-36 would prohibit that activity, yes.

Senator Jaffer: My second question to you is about the bodyguard, the security, and the driver. I have difficulty understanding how they get involved. They're still involved in a commercial enterprise, right? But I understood that they would not be charged, right, or am I wrong?

Ms. Levman: Provided that they're not receiving any benefits in the context of a commercial enterprise, and a commercial enterprise in the context of Bill C-36 would necessarily involve third-party profiteering. So, where you have only the seller profiting from the sale of her or his own sexual services, you do not have a commercial enterprise. Where you have, let's say, a cooperative of sellers who are working together, but again, only profiting from the sale of their own sexual services, you do not have a commercial enterprise.

Senator Jaffer: May I ask one more question, chair?

The Chair: Yes.

Senator Jaffer: My follow-up question is: Say four sellers got together in one place and they had one house or whatever. If I understood you clearly, as long as each seller kept separate, they weren't sharing it and it was just a place where they were, then the four of them can set up in one place; is that correct?

Ms. Levman: Well, they are not going to be criminalized for that activity. However, their clients, their purchasers will be criminalized.

Senator Jaffer: Yes.

Ms. Levman: So I would like to clarify one point that's arisen today, which is that Bill C-36 is not attempting in any way to allow or facilitate either the purchase or the sale of sexual services. It proposes that this is an inherently dangerous and harmful activity, one that ought to be reduced and, hopefully, eventually abolished to the greatest extent possible.

The reason why sellers are not prevented from implementing certain safety measures is because of that power imbalance that I referred to earlier, because they are treated by the bill as victims of sexual exploitation. There is a difference, in my opinion, between allowing an activity and not preventing the implementation of certain safety measures.

I would say that Bill C-36 does the latter and not the former.

Senator Jaffer: Thank you, chair.

The Chair: Senator Batters?

Senator Batters: Yes, just in respect to what Senator Jaffer was asking about those particular positions that Bedford dealt with — drivers, bodyguards, accountants and those types of things — can you just explain for us how Bill C-36 provides prostitutes who are simply receiving benefit from their own sale of sexual services, how this particular bill directly addresses Bedford in those respects?

Ms. Levman: Well, again, and I think we had this conversation the last time I was sitting before you about the safety measures that are embedded in Bill C-36 and how Bill C-36 is trying also to address a lot broader societal and safety issues that are posed by prostitution.

What the bill does is it looks at the concerns that were raised in the Bedford case by the Supreme Court of Canada, and it doesn't prevent implementation of safety measures, such as hiring of protective services, availing one's self of any of the goods or services that any of us could avail ourselves of, or of selling sexual services from a fixed indoor location. In particular, the court was very clear that they felt that that was the safest way to sell sexual services, and so Bill C-36 doesn't prevent any of that. At the same —

Senator Batters: It also —

The Chair: I just want to encourage, we have a number of other matters on our agenda —

Senator Batters: Sure.

The Chair: — and time is going by.

Senator Batters: Sure. Very briefly, though, there also is the proviso that it can't be an exploitative relationship with a bodyguard who also is basically a pimp.

Ms. Levman: Well, that is the concern, because we know that when people develop vested economic interests in the prostitution of others, that that can lead to unscrupulous and exploitative behaviour because it's obviously in that person's interest for the seller to sell more sexual services if they stand to gain from a greater level of sale. So, that's why the bill takes away the exception where there is exploitation.

Senator Batters: Thank you.

The Chair: Okay, if members are in agreement, I would like to move to clause-by-clause consideration.

Hon. Senators: Agreed.

The Chair: Thank you, witnesses. We appreciate it.

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-36?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall the preamble stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 1, which contains the short title, stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 2 carry?

Senator Baker: Mr. Chairman?

The Chair: Senator Baker.

Senator Baker: Yes, Mr. Chairman, there will be amendments proposed to this bill at third reading when this bill is referred from this committee. We will be taking each clause on division because those amendments, and there are I believe a number of them that are being proposed, will be put forward when the bill returns for third reading. So, on each one of the votes I would be voting on division.

The Chair: All right. Thank you.

So clause 2 carries on division?

Hon. Senators: Agreed.

The Chair: Carried, on division.

Shall clause 3 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division. Shall clause 4 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 5 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 6 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 7 carry?

Some Hon. Senators: On division.

Some Hon. Senators: Agreed.

The Chair: Carried, on division.

Shall clause 8 carry?

Some Hon. Senators: On division.

Some Hon. Senators: Agreed.

The Chair: Carried, on division.

Shall clause 9 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 10 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 11 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 12 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 13 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 14 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 15 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 16 carry?

Some Hon. Senators: On division.

Some Hon. Senators: Agreed.

The Chair: Carried, on division.

Shall clause 17 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 18 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

I'd just ask a question procedurally. Shall we just cover the rest of the clauses in one motion? Is that procedurally appropriate? Shall clauses 19 —

Senator Joyal: Maybe by section of the bill, Mr. Chair, if I may suggest. The bill amends certain other statutes, as you know. Let me come back to you. They are consequential amendments.

The Chair: The clerk suggests we do it in groups of 10. Shall clauses 19 through 29 carry?

Some Hon. Senators: On division.

Some Hon. Senators: Agreed.

The Chair: Carried, on division.

Shall clauses 30 through 40 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clauses 41 through 49 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Shall clause 1, which contains the short title, carry?

Hon. Senators: Agreed.

The Chair: Shall the preamble carry?

Some Hon. Senators: Agreed.

Senator Joyal: On division.

The Chair: Carried, on division.

Shall the title carry?

Hon. Senators: Agreed.

The Chair: Shall the bill carry?

Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chair: Carried, on division.

Does the committee wish to consider appending observations to the report?

Seeing none, is it agreed that I report this bill to the Senate?

Hon. Senators: Agreed.

The Chair: Agreed.

We have had a request which I can deal with, but I think I will leave it to the end of this. Senator Joyal asked for an update on what lies ahead for the committee, but before we deal with that, can I have a motion to move in camera for a consideration of a draft agenda?

An Hon. Senator: So moved.

The Chair: Moved by Senator Batters. Is the motion agreed to?

Hon. Senators: Agreed.

The Chair: Can I have a motion to permit senators' staff to stay in the room?

An Hon. Senator: So moved.

The Chair: So moved by Senator Joyal. Is the motion agreed to?

Hon. Senators: Agreed.

(The committee continued in camera.)