Justice Committee on July 7th, 2014

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you.

Prior to coming here today, one of the things I've heard is that from the perspective of the prostitutes who are going to be working the streets, the police will be able to detain them, will be able to assist them in getting off the street if need be. I do note that under proposed subsection 213(1) in the new bill, everyone is guilty of an offence punishable on summary conviction. I think that's probably something that I would like to touch on because summary conviction is much different from a dual-procedure offence and an indictable offence, in that summary conviction does not hold a criminal record, and it allows the police to do a minor investigation, but also gives them some leeway on how they can work.

I wonder if you could just speak to that a bit, Minister, with regard to the summary conviction side of it.

[Peter MacKay, Conservative, Central Nova, NS]

Sure. You're absolutely right, Mr. Wilks, that it has a much lower threshold of criminal consequence. There is the ability, obviously, to make the original investigation and make an arrest if the circumstances warrant. Then, through the process of diversion, through the process of the programming available by virtue of your jurisdiction wherever you may be, there is the much preferred option of treatment, of complying with a court order, which could in many circumstances not result in a criminal record.

We think this is a preferred option. There are, I have to acknowledge, a variety of opinions on this, even within the policing community. But the vast majority of police I've spoken to have been dealing with prostitution offences act very much out of a sense of compassion and a desire to help individuals leave prostitution. We think this facilitates that in a very practical way, and gives police that initial discretion at the front end to encourage prostitutes...and through the decision on whether to lay a charge or not. Of course, much of that can be discussed and then, of course, a crown prosecutor is involved in a plea bargain potentially.

[David Wilks, Conservative, Kootenay—Columbia, BC]

I want to carry on with that, if I could, Minister.

Having been involved in the Pickton case, and having done one of the next-of-kin notifications for that, it was very challenging for the police. You never want to have to go to a home and tell a parent that their child has passed away.

Having said that, I recognize that this legislation gives police the opportunity to bring someone in from the street who is potentially in harm's way and to offer them services through the funding you are going to provide.

I wonder if you could speak to that a bit, with regard to what type of services may be provided and how we can direct people to that.

[Peter MacKay, Conservative, Central Nova, NS]

The programming itself will obviously be informed in many cases by the community, by groups that are currently doing very good work in this area. There can be community, provincial, territorial discretion as to the needs. Many of them I've already touched on. There are very often addiction issues, certainly violence, and the stress and trauma associated with that violence and upbringing. Ms. Smith can speak to this in a much more informed way, but many prostitutes enter prostitution at a very early age. Many are new Canadians. Sadly and tragically, many, as Mr. Casey referred to, come from the aboriginal community. Programs that are specific to those particular and individual conditions will be provided and will be crafted over time.

However, I want to refer back to the preamble. I think you will find in that preamble many of these stated and very specific objectives of the bill. It talks about exploitation, and this is inherent in prostitution. I think there is a focus in this bill on the risks of violence posed by engaging in prostitution. This holistic approach of legislation plus programming is aimed, as you've suggested, at going to the very source, by criminalizing those who are exploiting prostitutes, not punishing or revictimizing individuals who have been drawn in to it—in many cases through no fault of their own—and assisting with either prevention or an exit from prostitution, in a way that goes well beyond anything we can do in the criminal law.

The objectives are very clear. It's a very important preamble to understand. I would suggest there's a paradigm shift in the way we will treat exploited persons under this bill versus those who are ultimately responsible, the perpetrators, those who are purchasing and exploiting women.

[The Chair, Conservative, Mike Wallace]

Thank you, Minister.

Thank you for those questions.

Our next questioner, from the NDP, is Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Chair.

Thank you, Minister, for being here.

Minister, I'd like to open by indicating that summary conviction does indeed lead to a criminal record. It's only if there's unconditional discharge that it doesn't.

Correct?

[Peter MacKay, Conservative, Central Nova, NS]

It can. You're right.

[Craig Scott, NDP, Toronto—Danforth, ON]

That was not the impression you left.

I want to make sure that the government is fully on side with the Bedford decision. In Bedford your government argued, as can be seen at paragraph 80 of the Bedford judgment, that “it is their choice”—that is, prostitutes' choice or sex workers' choice—“to engage in the activity, not the law, that is the cause” of the risks they face, or any violence or insecurity or health consequences. The Supreme Court roundly rejected that line of argument by your government.

I want to confirm for everybody here that you accept that the line of argument was erroneous.

[Peter MacKay, Conservative, Central Nova, NS]

Well, Chair, what the Supreme Court ultimately spoke about was the overbreadth and gross disproportionality of the law. Let's not forget that the case did previously go through trial division and appeal court division, where it was overturned, and then the Supreme Court came back with its decision.

But the objective here is to denounce and deter prostitution as a practice. We are informed by the Bedford decision from the Supreme Court, but other sources as well. We see it as a practice that commodifies, degrades, and dehumanizes, and it exploits people who are involved in prostitution. As a result, we've responded with a bill that we think asserts that prostitutes are victims of an inherently dangerous and exploitative practice.

[Craig Scott, NDP, Toronto—Danforth, ON]

I'll just note for the record that it wasn't a precise answer to my question, but thank you.

Minister, does it matter that some sex workers, or prostitutes, see what they do as legitimate? They will express what they do as an exercise of choice. I'm not saying it's anywhere near all; let's just say some. I'm wondering what that makes them in your eyes, in the eyes of this law.

You used very strong language at one point about clients being predators or perverts. So does it make women—just leave it at women for the moment—who think in those terms also perverts as a result?

[Peter MacKay, Conservative, Central Nova, NS]

I think anyone who preys on children in particular, whether they're male or female—

[Craig Scott, NDP, Toronto—Danforth, ON]

That wasn't the question. You know that wasn't the question.

If women believe that the work they're doing is legitimate, what does that make them in the eyes of this law?

[Peter MacKay, Conservative, Central Nova, NS]

We believe that prostitution is inherently dangerous and exploitative, and that ultimate definition, when it comes to the courts, will be for the courts to determine.

What I believe is that we shouldn't normalize it, and that we shouldn't condone it or support it. We should work to help people exit prostitution. I believe we need to minimize, to the greatest extent possible, the inherent dangers of prostitution.

That's what we're attempting to do with this bill. We're not attempting to facilitate, to enable. We're attempting to reduce.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Minister.

Minister, just a quick answer: was the insertion of protection of health considered for the preamble, and if so, why was it not included amongst the objectives of the bill?

The only reference is to preventing violence and exploitation, but health concerns don't appear at all, and they do appear in the Supreme Court judgment.

[Peter MacKay, Conservative, Central Nova, NS]

Yes, I think health concerns are very much a legitimate concern, there's no question. If the committee in its wisdom has recommendations in that regard, it's a very legitimate question.

[Craig Scott, NDP, Toronto—Danforth, ON]

Great.

In the opinions that you've received, the work done by your officials that—

[Peter MacKay, Conservative, Central Nova, NS]

And that could go, by the way, to the programming aspect, to come back to Mr. Wilks' question about how we help individuals who may be suffering from addiction issues or other issues.

[Craig Scott, NDP, Toronto—Danforth, ON]

It makes sense. Thank you.

In the opinions that you've received, and that you're not going to show us, I understand, did you receive advice that any charter right—section 2, section 7, even section 15—was actually infringed?

[Peter MacKay, Conservative, Central Nova, NS]

No. There are always criteria—

[Craig Scott, NDP, Toronto—Danforth, ON]

You did not, even with regard to section 1?

[Peter MacKay, Conservative, Central Nova, NS]

If I could finish, there are always criteria, as you know, as to the scale of risk involved. When it comes back to section 1, that is very much ultimately the determining factor—whether it can be justified in a free and democratic society, whether the Oakes test is met. That goes into the criteria of whether it passes constitutional muster or charter compliance.

[Craig Scott, NDP, Toronto—Danforth, ON]

Which leads me to conclude—

[Peter MacKay, Conservative, Central Nova, NS]

The department would very much have gone through that in each section of this bill.

[Craig Scott, NDP, Toronto—Danforth, ON]

Right. I have just a comment; I know I don't have much time. In the way you've answered that, Minister, in order for the crucial question to be section 1, your officials would indeed have to have advised you that at least one charter right was infringed. I just want to make that clear.

[Peter MacKay, Conservative, Central Nova, NS]

That there would be risk. That's the way it's determined, Mr. Scott.