Bill C-36 (Historical)

Protection of Communities and Exploited Persons Act

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

This enactment amends the Criminal Code to, among other things,
(a) create an offence that prohibits purchasing sexual services or communicating in any place for that purpose;
(b) create an offence that prohibits receiving a material benefit that derived from the commission of an offence referred to in paragraph (a);
(c) create an offence that prohibits the advertisement of sexual services offered for sale and to authorize the courts to order the seizure of materials containing such advertisements and their removal from the Internet;
(d) modernize the offence that prohibits the procurement of persons for the purpose of prostitution;
(e) create an offence that prohibits communicating — for the purpose of selling sexual services — in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre;
(f) ensure consistency between prostitution offences and the existing human trafficking offences; and
(g) specify that, for the purposes of certain offences, a weapon includes any thing used, designed to be use or intended for use in binding or tying up a person against their will.
The enactment also makes consequential amendments to other Acts.

Protection of Communities and Exploited Persons Act

[Michelle Rempel, Conservative, Minister of State (Western Economic Diversification)]

Mr. Speaker, what was just said aside, there is something that has not been adequately debated in this House, and that is using the statement “what two consenting adults do between them is not the state's concern” as an underpinning to argue that the asymmetrical criminalization that has been put forward through this bill is not an adequate response to the Bedford ruling.

That is because the concept of sexual consent is at the heart of the statement. Our Criminal Code provides a standard definition for “sex without consent” under section 273.1. Some of the provisions include:

(a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity;

There are other provisions.

Through case law, we have seen that a sexual assault offence is established by the proof of three elements: touching, the sexual nature of the content, and the absence of consent.

Furthermore, case law has shown that the absence of consent is subjective by reference to the complainant's internal state of mind towards the touching at the time it occurred.

Beyond this criminal definition of sexual consent is the work that groups involved with prevention of sexual assault have been doing to educate the public on the relationship between knowing and celebrating one's sexuality in order to define the boundaries of consent.

I had a transformational moment last week. I had a chance to speak with Elsbeth Mehrer of the YWCA of Calgary. I asked her, “What do you define as sexual consent?” She talked about an enthusiastic response that is exhibited by both parties.

I am also very proud of the work of the University of Calgary's consent, awareness, and sexual education club. They ran a “Consent is Sweet” campaign to bring this more accurate, in my opinion, concept of sexual consent to their student body.

Since time immemorial, empowered, educated, enthusiastic sexuality, particularly female sexuality, has been written into literature, social mores, and religious practice as an evil, something to be avoided for fear of ripping the very fabric of society. It has only been in very recent decades that western culture, particularly through the feminist movement, has enshrined a new view of consent into our consciousness, yet we still struggle to protect this, from “rapey” chants at frosh week to requests for female airport security officers to be segregated. We as a culture are still challenged with the full acceptance of empowered, equitable sexuality.

Furthermore, at the heart of this new notion of sexual consent is the concept of equality, the concept that all parties are in equilibrium from a power dynamic perspective.

I feel that as such, the “what two consenting adults do” argument is flawed, as there is an overwhelming burden of proof that a large majority of sex workers are not in an equitable position.

Be it a young worker who entered into the trade before having an opportunity to define what an enthusiastic response means in terms of their own sexuality, workers who are selling out of desperation to make the rent, to support substance abuse, to support their children or any other determinant of poverty, or workers who are suffering from mental health issues, there is not equality in the power balance between the parties. In most such situations, I would argue that true sexual consent, this enthusiasm that Elsbeth speaks about and that we are striving as a culture to enshrine, is difficult to achieve.

In demonstrating this, several studies based on surveys or anecdotal evidence from sex worker advocates and service providers suggest that the prevalence of sexual assault in the sex industry is high, particularly in the case of street-level workers.

A 2005 Vancouver study said that 78% of these workers had been raped in prostitution. Studies carried in the mid-1990s by the Department of Justice showed that physical and sexual assaults on prostitutes were commonly carried out by clients, pimps, or boyfriends.

In 2003, the Australian Centre for the Study of Sexual Assault published a briefing entitled “What lies behind the hidden figure of sexual assault? Issues of prevalence and disclosure”. It discusses the notion that women working in the sex industry are at a greater risk of sexual violence. The paper also briefly provides information about the treatment of sex workers by the courts and the judiciary in sexual assault cases.

We know that sexual assault is under-reported in general, I believe even more so in the case of sex workers. One of the issues raised in response to sex workers not reporting sexual assault is that they are afraid of being charged with prostitution-related offences as a result of making a statement. They also indicate that being exposed as a sex worker to friends and family is another reason to not report the incident to the police.

When we look at case law, defence strategies generally consist of attacking the credibility of the victim. I looked at some case law involving prostitutes, from 2004 to 2014, and these were some of the defence strategies:

The complainant consented on previous and future occasions.

The complainant is a drug addict and was under the influence when the sexual activities took place, suffers from depression, or cannot recollect the events due to memory lapses.

The complainant continued to work as a prostitute for many years after the event; therefore, she consented to the activity and was not traumatized.

How do these defences demonstrate our culture's acceptance of the value of full, enthusiastic, empowered sexual consent?

In the research completed for me by the Library of Parliament, several court cases showed the difficulty of defining consent in the context of case work. In R. v. House, R. v. Dyck, R. v. Lumsden, and R. v. Jakeer, the courts noticed that sex workers are particularly vulnerable and are entitled to the full measure of protection of the law, as is any other person. The review of cases tended to show that there was no general trend of the judicial interpretation of consent by sex workers. In this context, it seems that the consent of prostitutes is determined by the courts on a case-by-case basis.

I would like to read part of a ruling from the Ontario Court of Justice in relation to sexual assault with a sex worker.

In the circumstances of this case, although I am prepared to accept that she may have had grave misgivings and was in fact not consenting; her words and actions were such that a reasonable person might have an honest but mistaken belief as to her consent. She got into the car, asked for the money agreed upon and then apparently willingly complied with the sexual requests of these young men. I do not agree with the Crown's submission that the young men had any obligation to ask her if she was consenting to sexual contact when they entered the car. It was reasonable for them to assume that she was consenting when she met them with a request for the $30 fee before engaging in sexual activity and never by word or action indicated that she was not consenting to continue. Surely it is not the law that a client of a prostitute has to continually ask whether the acts engaged in are consensual....

I wish I had time to read this whole ruling because given rulings like this, websites which rate sex workers include comments like, “She didn't look at me when we were doing it”. “She cried a bit halfway through”.

I am not of the view that any person has a God-given right to have access to the purchase of sex or that the purchase of sex should in and of itself define sexual consent. To protect sex workers in this country, we need to stop and acknowledge that this is a fundamental flaw in any argument for the legalization of prostitution. By legalizing prostitution, we would degrade a hard-fought cultural understanding of the worth of humans and our sexuality, and make it harder for the victims of sexual assault, even those who are sex workers, to seek recompense and heal.

However, this is not to say that sex workers are in every instance incapable of giving consent. In contrast, by adopting Bill C-36 and the related funding we have announced, our country acknowledges we have the right to consent over what we choose to do with our bodies but that the burden of proof is overwhelming and shows that the majority of sex workers are degraded, assaulted, and abused. As such, we as a society and a nation recognize that the purchase of sexual services is an action we believe is criminal.

In the committee hearings, one of the witnesses spoke to the asymmetrical provisions and asked where it is that you can purchase something legally but not buy it legally, and why don't we do that with booze?

Well, a bottle of booze is not a human being. I believe that in order for us to show that we as a country have moved beyond a very limited range of sexual consent and that we as a culture believe in an empowered, willing, enthusiastic sexual consent definition, this proposed law needs to be adopted.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I would like to thank the hon. justice critic for the official opposition, who has done such strong work in so many areas of law in the country.

I and the Green Party think the kind of law we need is probably found most closely in the New Zealand law. I expected, by the way, to see something closer to what is described as the Nordic model. I did not expect to see so many areas in Bill C-36 that would criminalize behaviour in ways that would increase the risk for people in the sex trade industry.

However, having studied the Nordic model and the New Zealand model, we prefer the law that goes furthest in ensuring that the activities in the sex trade industry lose their stigma. We should be able to say that someone in the sex trade industry or someone who works for them—in, for example, security or scheduling or health care—is not stigmatized. Then we can concentrate on people who are in the sex trade because of addiction problems, or on those under 19, or on foreign workers. God help us; what a horrific case there is of sex trafficking and human trafficking. We should focus on those and eliminate them.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank my Green Party colleague.

I am very happy to be part of the committee that studied Bill C-36 very closely. Several amendments were proposed, and many of them were ruled in order.

There was a debate about the amendments. Clearly, the government had no interest in accepting them, but the resulting debates were interesting. With a little good will, committee members could have mitigated the potentially negative impact of the bill as written by the government.

At the beginning of her speech, my colleague from the Green Party said that she thought the minister would have presented something that would have been in answer to the Bedford ruling, so I would like to ask the hon. member what, in her opinion, would have been the proper answer to that ruling.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

moved:

Motion No. 1

That Bill C-36 be amended by deleting the long title.

Motion No. 2

That Bill C-36 be amended by deleting the preamble.

Motion No. 3

That Bill C-36 be amended by deleting Clause 1.

Motion No. 4

That Bill C-36 be amended by deleting Clause 2.

Motion No. 5

That Bill C-36 be amended by deleting Clause 3.

Motion No. 6

That Bill C-36 be amended by deleting Clause 4.

Motion No. 7

That Bill C-36 be amended by deleting Clause 5.

Motion No. 8

That Bill C-36 be amended by deleting Clause 6.

Motion No. 9

That Bill C-36 be amended by deleting Clause 7.

Motion No. 10

That Bill C-36 be amended by deleting Clause 8.

Motion No. 11

That Bill C-36 be amended by deleting Clause 9.

Motion No. 12

That Bill C-36 be amended by deleting Clause 10.

Motion No. 13

That Bill C-36 be amended by deleting Clause 11.

Motion No. 14

That Bill C-36 be amended by deleting Clause 12.

Motion No. 15

That Bill C-36 be amended by deleting Clause 13.

Motion No. 16

That Bill C-36 be amended by deleting Clause 14.

Motion No. 17

That Bill C-36 be amended by deleting Clause 15.

Motion No. 18

That Bill C-36 be amended by deleting Clause 16.

Motion No. 19

That Bill C-36 be amended by deleting Clause 17.

Motion No. 20

That Bill C-36 be amended by deleting Clause 18.

Motion No. 21

That Bill C-36 be amended by deleting Clause 19.

Motion No. 22

That Bill C-36 be amended by deleting Clause 20.

Motion No. 23

That Bill C-36 be amended by deleting Clause 21.

Motion No. 24

That Bill C-36 be amended by deleting Clause 22.

Motion No. 25

That Bill C-36 be amended by deleting Clause 23.

Motion No. 26

That Bill C-36 be amended by deleting Clause 24.

Motion No. 27

That Bill C-36 be amended by deleting Clause 25.

Motion No. 28

That Bill C-36 be amended by deleting Clause 26.

Motion No. 29

That Bill C-36 be amended by deleting Clause 27.

Motion No. 30

That Bill C-36 be amended by deleting Clause 28.

Motion No. 31

That Bill C-36 be amended by deleting Clause 29.

Motion No. 32

That Bill C-36 be amended by deleting Clause 30.

Motion No. 33

That Bill C-36 be amended by deleting Clause 31.

Motion No. 34

That Bill C-36 be amended by deleting Clause 32.

Motion No. 35

That Bill C-36 be amended by deleting Clause 33.

Motion No. 36

That Bill C-36 be amended by deleting Clause 34.

Motion No. 37

That Bill C-36 be amended by deleting Clause 35.

Motion No. 38

That Bill C-36 be amended by deleting Clause 36.

Motion No. 39

That Bill C-36 be amended by deleting Clause 37.

Motion No. 40

That Bill C-36 be amended by deleting Clause 38.

Motion No. 41

That Bill C-36 be amended by deleting Clause 39.

Motion No. 42

That Bill C-36 be amended by deleting Clause 40.

Motion No. 43

That Bill C-36 be amended by deleting Clause 41.

Motion No. 44

That Bill C-36 be amended by deleting Clause 42.

Motion No. 45

That Bill C-36 be amended by deleting Clause 43.

Motion No. 46

That Bill C-36 be amended by deleting Clause 44.

Motion No. 47

That Bill C-36 be amended by deleting Clause 45.

Motion No. 48

That Bill C-36 be amended by deleting Clause 45.1.

Motion No. 49

That Bill C-36 be amended by deleting Clause 46.

Motion No. 50

That Bill C-36 be amended by deleting Clause 47.

Motion No. 51

That Bill C-36 be amended by deleting Clause 48.

Motion No. 52

That Bill C-36 be amended by deleting Clause 49.

Mr. Speaker, it is rare, and members of the House will know it, standing as the leader of the Green Party of Canada and member of Parliament for Saanich—Gulf Islands, that I have not availed myself of the opportunity to present amendments at committee stage under new rules that were adopted last fall. I have objected to the opportunity because it has not amounted to a real chance to amend legislation.

Nevertheless, on bills that I find disturbing, I have gone to every committee with amendments of a substantive nature. In the case of Bill C-36, I found I could not find a way to amend the bill in a way that would actually fix it. That is why, Mr. Speaker, I appreciate that you have now read out attempts to delete the entire bill based on it being unfixable.

How do we find ourselves here? As we all know, the Supreme Court of Canada ruled in the Bedford decision that our existing laws relating to prostitution were unconstitutional as they violated the Charter of Rights and Freedoms.

Section 7 of the Canadian Charter of Rights and Freedoms is an important sentence that constitutes a fundamental principle for all Canadians: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

In the Bedford case, the Supreme Court determined that Canadian laws and the Criminal Code are inconsistent with this section of the Canadian Charter of Rights and Freedoms with respect to sex workers who are threatened by current Canadian laws.

With the Supreme Court saying that our laws relating to prostitution did not adequately protect the rights of security of the person for people who found themselves in this very marginalized and difficult place in their lives and that they were even more marginalized, even more stigmatized and driven into the shadows by the status of laws over prostitution in Canada, it was up to us, as Parliament, to come up with an approach that would respect, would protect and would ensure that people in the sex trade industry were not driven into the shadows.

After Bedford, I thought we would see a response from Parliament, a response from the Minister of Justice, that took into account the message from the Supreme Court of Canada.

Ironically, earlier this morning, I attended an international symposium on the subject of gender violence and health. The symposium is taking place a few blocks from here, at the Novotel, on Nicholas Street. Researchers from across Canada are presenting research on this topic, with people from around the world. It is a collaborative social science project in Canada on gender violence and health. It was funded by the Canadian Institutes of Health Research.

I was able to stay long enough, before coming here to debate Bill C-36, to hear the preliminary findings of that work being done across Canada. I was pleased to see that members from my own part of the world, from University of Victoria and from the city of Victoria Police Department had all participated in this work.

Their area of research was restricted to people in the sex trade industry who were over 19 and who were not part of the quite horrific trafficking in people who did not have rights. I want to make it really clear that in the Green Party's stance against Bill C-36, we believe the full measure of the law should be used to crack down on anyone who is exploiting minors and people in sex trafficking. We believe laws in that area must be strengthened and that the laws are adequate, even as they now stand, to differentiate the situations between prostitution, in general, and this group of exploited workers under 19 who are trafficked internationally and lack the rights they should have under the law.

Research has been done that is being reported on just today, as I mentioned. It was funded by the Canadian Institutes of Health Research. It was collaborative work done in six different cities across Canada by some of our best social science researchers, who examined the lives of sex trade workers who were not under the age of 19 or involved in human trafficking.

What the institute found as a foundational piece of information in early research is intuitive and is what the Supreme Court of Canada understood. It is that any laws that are punitive in nature, anything that in our social context that would further stigmatize sex trade work, means that the people conducting themselves in that work are more vulnerable and are less able to access the supports and protections found in our society.

The Supreme Court of Canada decision made it clear what Parliament needed to do: Parliament needed to find a way to ensure that people in the sex trade industry were not driven into the shadows and were not further stigmatized.

This is a tragedy, because we are talking about people's lives. We are not just talking about slogans for election campaigns or going for some sort of core vote from Conservative Party supporters. This issue transcends partisanship. This is about Parliament being asked by the Supreme Court of Canada to ensure that section 7 of the Canadian Charter of Rights and Freedoms is respected when we bring forth laws that deal with prostitution.

On that fundamental requirement for our laws, Bill C-36 stands as a singular failure. It would absolutely not make the life of sex trade workers more secure. It goes in the wrong direction. As numerous legal commentators have noted, this law would make the sex trade more dangerous.

Just to give a sense of why that is, I would like to quote comments made by the Minister of Justice at a press conference on the day that Bill C-36 was tabled back in June. I am going to quote from an exchange that he had with a reporter.

The Minister of Justice said:

Some prostitutes we know are younger than 18 years of age. If they are in the presence of one another at 3:00 in the morning and are selling sexual services, they would be subject to arrest.

A reporter then asked:

That would still be considered a criminal offence?

The response from the Minister of Justice was:

That’s correct. They’re selling it in the presence of a minor.

The reporter said:

Okay, so if two 17-year-old prostitutes are standing side by side in the middle of the night in what is considered a public place, they will be committing an offence.

The response by the Minister of Justice:

And selling sex, yes.

A reporter said:

That’s effectively making them stay on their own and endangering furthering their own security.

The Minister of Justice:

Not at all. We’re not making them do anything. We’re not forcing them to sell sex.

That is a response in the absence of reality. If we are to take the Supreme Court's decision in the Bedford case seriously, then we should do everything possible to allow people in the sex trade industry to be with each other, to be near each other, to be protecting each other. There is a distinction between being on the street and indoor sex work. Anything that drives people in the sex trade industry onto the street and into the shadows is going to make their lives more dangerous.

This goes to the next piece of Bill C-36, which is likely unconstitutional: banning advertisement for sexual services and banning communicating for the purchasing of sex in particular.

Bill C-36 states that all of it would be illegal unless the sex trade workers are communicating directly. In other words, publishing their ads would be illegal. This again would force a prostitute to lose the intermediary. It would force the sex trade worker to lose the possibility of some form of screening, some way of ensuring they are not face-to-face in the shadows negotiating their situation. It would make their lives much more dangerous.

The decision in Bedford gave us guidance on this issue. The court said in Bedford:

By prohibiting communicating in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risks they face.

Bill C-36 is written as though the Supreme Court of Canada has given us no guidance, as though we are blundering around not imagining the narrowness of the ways in which communicating or advertising would remain legal in Canada.

It is as though the Bedford decision gave us no guidance, because what they have come up with is aimed at a new offence of advertising sexual services and is undoubtedly going to make life more dangerous for sex trade workers.

I could go on and on, but I know my time is at an end.

I just want to say that this law will only make the lives of hundreds of sex workers more difficult and more dangerous.

[The Acting Speaker, Conservative, Barry Devolin]

There are 52 motions in amendment standing on the notice paper for the report stage of Bill C-36. Motions Nos. 1 to 52 will be grouped for debate and voted upon according to the voting pattern available at the table.

I will now put Motions Nos. 1 to 52 to the House.

The House proceeded to the consideration of Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts, as reported (with amendments) from the committee.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, let me welcome you and everyone back to the House for the autumn sitting. I know it will be a hard-working, orderly, and productive sitting because there is much work that we have to do.

This afternoon, we will resume third reading debate on Bill C-3, safeguarding Canada's seas and skies act. Tomorrow, we will have the final day of third reading debate on Bill C-8, combating counterfeit products act.

Monday, at noon, we will start the report stage of Bill C-36, the Protection of Communities and Exploited Persons Act. In the afternoon, we will start the report stage of Bill C-13, the Protecting Canadians from Online Crime Act.

Tuesday, as I announced at the start of the week, shall be the second allotted day. This will be an opportunity for the leader of the Liberal Party to put forward a proposal for some new initiative. This week we saw the New Democrats do that. As much as their idea was neither bold nor responsible, it was a motion which let us have a debate on the merits of an idea. I hope the hon. member for Papineau will be inspired to set aside his musings of the summer and present to us a concrete proposal for which he will come into this House to explain and defend in debate.

On Wednesday and Thursday, I will give priority to the consideration of any new government legislation that may be introduced between now and then.

Time Allocation Motion

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I am pleased to rise today on this question of privilege about closure.

I am rising at my first opportunity on this question of privilege, given that between the Speech from the Throne in October and when we adjourned June 20, there had been 21 occasions on which closure of debate occurred, and I maintain that the exercise of my rights and the rights of my colleagues in this place have been obstructed, undermined and impeded by the unprecedented use of time allocations in the second session of the 41st Parliament.

Mr. Speaker, in presenting this fairly legal argument to you, I propose to leave out page numbers and citations because I have prepared a written version of this for your office and I hope that will be acceptable to you, that I skip page numbers in this presentation. Hansard may not have the numbers of the debates, but I hope there is enough context so people can find them.

I belive this excessive use of what is often called “guillotine measures” is a violation of the rights of all members of Parliament, but I would like to stress that there is a disproportionate impact on members such as me who are within either smaller parties, that is less than 12 members, or who sit actually as independents, because in the roster of recognizing people in their speaker slot, quite often those of us in the smaller parties or independents simply never get to speak to the bills at all.

My question, Mr. Speaker, bears directly on what your predecessor said in this place on April 27, 2010. He said, “...the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation”.

In the autumn of 2011, in a ruling concerning the member for Mount Royal, Mr. Speaker, you yourself said that to constitute a prima facie case in regard to matters of obstruction, interference, molestation or intimidation, you need to “...assess whether or not the member's ability to fulfill his parliamentary [activities] has been undermined”. At that moment in the same Debates, you had the occasion to reflect on “...the Chair's primordial concern for the preservation of the privileges of all members,...” and you added, “As your Speaker, one of my principal responsibilities is to ensure that the rights and privileges of members are safeguarded, and this is a responsibility I take very seriously”.

I now have occasion to turn to other words that will guide us in this matter. From the Supreme Court of Canada in the Vaid decision, in the words of Mr. Justice Binnie, speaking for the court, he outlined the scope of parliamentary responsibility and parliamentary privilege for the management of employees and said, “Parliamentary privilege is defined by the degree of autonomy necessary to perform Parliament’s constitutional function”. He went on to say at paragraph 41 of that Supreme Court of Canada judgment:

Similarly, Maingot defines privilege in part as “the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work”.

I would repeat and emphasize that, because although the Vaid decision was on a different fact set, Mr. Justice Binnie spoke to our core responsibility as parliamentarians when he said that we must be able, as legislators, to do our legislative work.

Mr. Justice Binnie continued in the Vaid decision to say:

To the question “necessary in relation to what?”, therefore, the answer is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business. To the same effect, see R. Marleau and C. Montpetit...where privilege is defined as “the rights and immunities that are deemed necessary for the House of Commons, as an institution, and its Members, as representatives of the electorate, to fulfill their functions”.

Mr. Justice Binnie went on to find further references in support of these principles from Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada.

These are fundamental points. The purpose of us being here as parliamentarians is to hold the government to account. It is obvious that no legislative assembly would be able to discharge its duties with efficiency or to assure its independence and dignity unless it had adequate powers to protect itself, its members, and its officials in the exercise of these functions.

Finally, Mr. Justice Binnie—again, for the court—said at paragraph 62, on the subject of parliamentary functions in ruling that some employees would be covered by privilege, that coverage existed only if a connection were established between the category of employees and the exercise by the House of its functions as a legislative and deliberative body, including its role in holding the government to account.

As I said earlier, this approach was supported by your immediate predecessor. In a December 10, 2009 ruling, the Speaker of the House, the Hon. Peter Milliken, said that one of his principle duties was to safeguard the rights and privileges of members, and of the House, including the fundamental right of the House of Commons to hold the government to account for its actions, which is an indisputable privilege, and in fact an obligation.

It is therefore a fundamental principle of Westminster parliamentary democracy that the most important role of members of Parliament, and in fact a constitutional right and responsibility for us as members, is to hold the government to account.

The events in this House that we witnessed before we adjourned on June 20, 2014, clearly demonstrate that the House and its members have been deprived of fulfilling constitutional rights, our privilege, and our obligation to hold the government to account, because of the imposition of intemperate and unrestrained guillotine measures in reference to a number of bills. Over 21 times, closure has been used.

It is only in the interest of time that I am going to read out the numbers of the bills and not their full description. Bill C-2, Bill C-4, Bill C-6, Bill C-7, Bill C-13, Bill C-18, Bill C-20, Bill C-22, Bill C-23, Bill C-24, Bill C-25, Bill C-27, Bill C-31, Bill C-32, Bill C-33, and Bill C-36 were all instances where closure of debate was used.

In many of the instances I just read out, and in the written argument I have presented, closure of debate occurred at second reading, again at report stage, and again at third reading. The limitation of debate was extreme.

A close examination of the guillotine measures imposed by the government demonstrate that the citizens of Canada have been unable to have their elected representatives adequately debate the various and complex issues central to these bills in order to hold the government to account. Members of Parliament have been deprived and prevented from adequately debating these measures, through 21 separate motions for time allocation in this session alone. It undermines our ability to perform our parliamentary duties.

In particular, I want to again highlight the effect that the guillotine motions have on my ability as a representative of a smaller party, the Green Party. We do not have 12 seats in the House as yet, and as a result we are in the last roster to be recognized once all other parties have spoken numerous times. Quite often, there is not an opportunity for members in my position, nor for independent members of Parliament, to be able to properly represent our constituents.

Again, I should not have to repeat this. Certainly you, Mr. Speaker, are aware that in protecting our rights, as you must as Speaker, that in this place we are all equals, regardless of how large our parties are. As voters in Canada are all equal, so too do I, as a member of Parliament, have an equal right and responsibility to represent the concerns of my constituents in this place, which are equal to any other member in this place.

As speaking time that is allotted to members of small parties and independents is placed late in the debates, we quite often are not able to address these measures in the House. This would be fair if we always reached the point in the debate where independents were recognized, but that does not happen with closure of debates. My constituents are deprived of their right to have their concerns adequately voiced in the House.

Political parties are not even referenced in our constitution, and I regard the excessive power of political parties over processes in this place, in general, to deprive constituents of equal representation in the House of Commons. However, under the circumstances, the additional closure on debate particularly disadvantages those constituents whose members of Parliament are not with one of the larger parties.

Mr. Speaker, in the autumn of 2011, in your ruling considering the member for Mount Royal and his question of privilege, you said that one of your responsibilities that you take very seriously is to ensure that the rights and privileges of members are safeguarded. The principal right of the House and its members, and their privilege, is to hold the government to account. In fact, it is an obligation, according to your immediate predecessor.

In order to hold the government to account, we require the ability and the freedom to speak in the House without being trammelled and without measures that undermine the member's ability to fulfill his or her parliamentary function. As a British joint committee report pointed out, without this protection, members would be handicapped in performing their parliamentary duty, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished.

To hold the government to account is the raison d'être of Parliament. It is not only a right and privilege of members and of this House, but a duty of Parliament and its members to hold the government to account for the conduct of the nation's business. Holding the government to account is the essence of why we are here. It is a constitutional function. In the words of the marketers, it is “job one”.

Our constitutional duty requires us to exercise our right and privilege, to study legislation, and to hold the government to account by means of raising a question of privilege. This privilege has been denied to us because of the consistent and immoderate use of the guillotine in regard to 21 instances of time allocation, in this session alone.

This use of time allocation, as you know, Mr. Speaker, is unprecedented in the history of Canada, and infringes on your duty as Speaker to protect our rights and privileges as members. As you have said many times, that is your responsibility and you take it very seriously. However, these closure motions undermine your role and your duty to protect us. Therefore, it diminishes the role of Speaker, as honoured from time immemorial.

In fact, you expressed it, Mr. Speaker, in debates in the autumn of 2011, at page 4396, when you had occasion to reflect on “the Chair's primordial concern for the preservation of the privileges of all members..”, and when you added, “As your Speaker, one of my principal responsibilities is to ensure that the rights and privileges of members are safeguarded, and this is a responsibility I take very seriously”.

Denying the members' rights and privileges to hold the government to account is an unacceptable and unparliamentary diminishment of both the raison d'être of Parliament and of the Speaker's function and role in protecting the privileges of all members of this House.

In conclusion, I submit to you, Mr. Speaker, that the intemperate and unrestrained use of time allocation by this government constitutes a prima facie breach of privilege of all members of this House, especially those who are independents or, such as myself, representatives of one of the parties with fewer than 12 members.

Mr. Speaker, I appreciate your consideration in this matter. I hope you will find in favour of this question of privilege, that this is a prima facie breach of the privileges and rights of all members.

Justice and Human Rights

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Justice and Human Rights in relation to 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. The committee has studied the bill and has decided to report it back to the House with amendments presented by all parties of this House.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, that is our discussion of Bill C-36 at committee.

I want to thank everyone involved, including the clerks, the researchers, and the officials who are here today. I also want to say a thank you to the members of the committee—and I know Mr. Casey did it the other day. I thought it was a very respectful and honest and forthright discussion—not a lot about politics, but about making what we think is good law for Canada. I appreciate everyone's patience and professionalism on this committee.

Thank you very much.

The meeting is adjourned.

[Françoise Boivin, NDP, Gatineau, QC]

Just to discuss my own amendment, it's in the official title, which the government doesn't use very often because it talks more about Protection of Communities and Exploited Persons Act, which is the short title. So very soon the government will have forgotten that it's an act to amend the Criminal Code in response to the Supreme Court of Canada decision. It's probably the only time that the government recognized that it is following a decision from the Supreme Court.

I don't think there's anything wrong with adding certain aspects of the decision that were key to the decision, because that's why we are here and we are passing such great days all together to review these clauses.

I don't know why the government would be scared to say what exactly the court has said in its decision, especially since they claim that all their clauses fit exactly what the Bedford decision has said. So they should be proud to quote the Bedford decision and to say that the Parliament of Canada recognizes that violence against women in Canada remains a serious issue that needs to be addressed through concerted government action.

Their claim is that Bill C-36 is addressing that so they should, again, be proud. I'm sure my colleague, Ms. Smith, who fought for women being exploited and trafficked and violently, what's the word in English?

The word is “violenter”. That's even more comprehensive than what the preamble states very coldly, and that would somewhat humanize this bill.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

I regret to inform my colleague that we will not be able to support this amendment. We think it's wholly unnecessary. I would simply point out that the title to the bill is actually An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts. I think it is very apparent what the act is about, as it is specifically referenced in the title, which is in fact part of the bill and will be cited in any litigation in the future. So for those reasons we would not support this amendment.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

You took the words right out of my mouth, and you're obviously very skilled at this.

It is indeed a technical amendment. The government is proposing the amendment to clause 48 of the bill, as you pointed out. It is a coordinating amendment between Bill C-36 and Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts. Coordinating amendments determine which amendment, as between two pieces of legislation, governs in the event that both are passed into law.

In this case, the coordinating amendment at subclause 48(6) relates to section 486.4 of the Criminal Code, which governs the issuance of publication bans in cases involving sexual offences.

Our proposed amendment is to the English version only and would correct a discrepancy between the English and French versions of subclause 48(6). This is a technical amendment, as I pointed out, to ensure that the English version accords with the French version, as the French version properly coordinates the amendments.

For those reasons, we are proposing and will support this amendment.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I can't believe the Conservatives would say no to this. This is a prudent measure that has already been used in other bills. Not so long ago, a relevant study was carried out concerning official languages in courts, such as the language used by the accused, and so on. This was a prudent measure. It was applied in Bill C-13 regarding cyberbullying. If the government ordered its members not to try to improve the bill, there should at least be a way to make them accountable. The other elephant in the room—besides the Supreme Court of Canada's Bedford decision, which we don't often hear Conservatives talk about—is provincial involvement.

With the exception of the Government of Manitoba, whose representatives came to testify here, it's certain that, with such a quick process, not all the provinces were necessarily available or prepared to come speak within such a short timeframe on issues as profoundly complex as human trafficking, sexual exploitation and prostitution.

Yet it is clear that, on the ground, it will be up to the provincial authorities to enforce three quarters of, if not all, the provisions that will be passed under Bill C-36.

I do believe strongly that we need to be able to do that review within two years of the adoption. How it's going to be carried out by the provinces, by the territories.... We all know that it is going to be.... What we decide here is always fine and dandy, but what I hear on the ground from crown attorneys, from prosecutors, and from defence attorneys is that they are left with the mess. It's not always easy to apply what comes out of this Parliament.

That being said, I think it would be prudent that we do a review on how all of this went. It will permit the committee in two years' time to maybe contact all the provinces and territories to see how it has been lived in the different courts, how many cases there were, and whether these were more on sex traffic or prostitution, and so on and so forth. I think this is at least the amendment that everybody should support if we are serious about the work we are doing.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

I thank my friend for the amendment. We do not support it, for a number of reasons.

The motion proposes a substantive amendment that would effectively eliminate the need to seek a record suspension through the Criminal Records Act. It would grant an amnesty to individuals who sell their own sexual services, if convicted under subsection 213(1)—that is, I point out, as amended today—of offences both before and after the coming into force of Bill C-36.

There is no time limit on this proposed amnesty; therefore, the provision is not transitional in nature.

Persons convicted under subsection 213(1) may apply for a record suspension under the existing rules under the Criminal Records Act, pursuant to the criteria outlined in that statute; namely, that five years have elapsed since the expiration of the sentence and that the Parole Board—and this is very important—is satisfied that the applicant is of good conduct and that the conviction should no longer reflect adversely on the applicant's character.

In our view, Mr. Chair, this provision would significantly reduce the deterrent effect of the provision itself. It is, in our view, unprecedented in the sense that it retroactively suspends criminal records in all cases, without any due consideration. We point out that there is a process that is built on appropriate principles with respect to the behaviour of convicted persons.

I am informed by my colleague, who is very well versed in these things, that this would also require an amendment to the Summary Convictions Act, which we don't see here. Therefore, it is fundamentally flawed in that regard.

For all those reasons, we will not be supporting this amendment.