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.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

I think it's an awful example that the parliamentary secretary used, talking about young girls being prostituted in the school bathrooms, because under those provisions they would be criminalized. I think the example is an awful one because it actually proves to the committee that criminalizing those victims won't pass the test.

I think it's an awful example. All we're saying is that criminalizing the women won't help the government achieve its goals. That's it. I think we heard unanimously from the witnesses that criminalizing women would not only put them in more danger but would also affect the relationships. We heard that from former police officers, that the relationships between the victims and the police officers are key for targeting prostitutes and human trafficking.

Any form of criminalization will just harm the government's goal, whatever goal they want to have. It would harm the victims and it would harm the women. That's all we're saying. The awful example of kids being prostituted in schools, well, under those provisions in Bill C-36, they would be criminalized. All I'm saying is that with whatever goal the government has, criminalizing victims won't help them, and they know it. We've heard it for four days in a row.

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

Thank you, Mr. Chair.

With respect to my colleague, I just want to remind her that Bill C-36 addresses the exact concerns of the three litigants who started that litigation seven years ago.

When they were out on the street, they were in danger. But the laws that were struck down prevented them from carrying on their business in a safe indoor location, where they could have security and properly screen their clients. Bill C-36 allows them to do that.

We know that all forms of prostitution are inherently dangerous. We've heard it over and over again from some of the very brave survivors of the sex trade, who told horrendous stories about the torture, the rape, the abuse, the beatings, and the assaults they endured for many, many years.

Some of them were recruited in the schoolyard and ended up in that trade. They were trapped in that trade and were treated as slaves long after they ceased to be children, once they were adults. Many of them were enticed into it later in life.

We know that being out on the street is the most dangerous thing one could possibly do in this trade. We are simply saying to them that there are certain places in Canada where these sorts of things are not welcome, inappropriate, and off limits. They are: schools, playgrounds, day care centres, places where young people are every day. We're simply saying, “Do not look for your clients in the schoolyard.”

I think that's a reasonable limit, under section 1 of the charter, Mr. Chair. I am very comfortable in stating to you that in my considered opinion, the Supreme Court would agree with that.

We have given them exactly.... Ms. Bedford, Ms. Lebovitch, and Ms. Scott asked to be able to carry on their business, not outside in any location, not in the schoolyard, but indoors. They can advertise. They can hire security and they can be safe. That is what they should do.

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

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you, Mr. Chair.

It's important to note that children need to be protected, and I understand that. However, what we're talking about here is the criminalization of victims, regardless of the situation.

I want to point out that the government was clear in its approach with Bill C-36 and in the questions it asked to witnesses: the majority of women who are involved in prostitution are victims. We're talking about the interests of victims here. Furthermore, since we are talking about criminalization, I think that children should be protected. Do we need to criminalize people to ensure a balance between interests?

Furthermore, witnesses unanimously agreed that the government shouldn't criminalize women or victims when it's balancing interests, since we also need to protect these women.

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

Thank you, Mr. Chair.

I simply want to thank Madame Boivin for the amendment. The government will not support the amendment. In our view it's inconsistent with one of the main objectives of the bill, which is to protect children from prostitution's harms.

We believe that, as drafted, Bill C-36 balances competing interests, including the interest of protecting sex workers from unreasonable harm. We think it addressed those in appropriate and reasonable ways in full compliance with the opinion of the Supreme Court of Canada.

We also believe that vulnerable people, minors in our communities in general, also have a right to be protected. Children, Mr. Chair, have a right not to be exposed to prostitution. They have a right not to be put in a situation where they could be recruited into prostitution.

We heard very unfortunate stories from survivors of the sex industry, who talked about being recruited into the business in high school. We were told that, unfortunately in this country on a relatively regular basis, young girls are recruited in high school hallways into the business.

We need to send a clear message to the pimps and the johns, and everyone else involved in the sex trade that the schoolyard, the playground, the day care centre, and other places where children are, are off limits.

We believe children, at the end of the day, Mr. Chair, have a right to their innocence, and it's our obligation as a society to protect that right as well. We believe we're balancing those interests, and for those reasons we will not be supporting this amendment.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I'm not surprised about my NDP-1 amendment. That may have been pushing a bit too far.

However, I'd like the NDP-2 amendment to be clear for everyone, since it has to do with clause 15. This is the clause that witnesses probably talked about the most last week with clause 20 and the $20 million amount. That's essentially what they talked about last week.

We especially heard about the premise of the preamble of Bill C-36. That's part of the bill, and we'll see it later on. The witnesses—regardless of where they stood on the issue of prostitution—told us that sex workers are victims.

I repeat. This means that someone cannot be both a victim and a criminal for the same action. We need to be consistent. When it came to specific questions from most of the witnesses who support the government and Bill C-36, unequivocally— with the exception of a few reservations for moral reasons, which I respect—this appeared to be an aspect in support of the bill.

I think that we need to be consistent, at least with this bill, and we need to ensure that we don't revictimize the people involved in prostitution. That's the very essence of the NDP-2 amendment. It's a matter of making it consistent, at the request of almost everyone. It even seemed to have the support of Conservative members of this committee.

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

Thank you, Mr. Chair.

The government does not support the amendment.

We thank Mrs. Mourani for bringing it forward. In our view, it's unnecessary to define prostitution because the Criminal Code would no longer use that term if amended by Bill C-36. Rather, Bill C-36 focuses on the relevant aspect of the prostitution transaction, such as obtaining sexual services for consideration.

Moreover, the amendment could cause some confusion, as it proposes that prostitution be defined in part VII, which refers to “Disorderly Houses, Gaming and Betting”, and Bill C-36 would place most of the new prostitution offences in part VIII, which are “Offences Against the Person and Reputation”.

For those reasons, we'll be opposing the amendment.

[Nathalie Levman]

Prostitution has been interpreted by the Supreme Court in its 1990 prostitution reference. I would just note that Bill C-36 doesn't propose to use the term “prostitution” other than in its preamble.

[The Chair, Conservative, Mike Wallace]

Is there anything further to the amendment?

(Amendment agreed to [See Minutes of Proceedings])

(Clause 10 as amended agreed to)

Clause 11 has no amendments.

Are there any comments on clause 11?

(Clause 11 agreed to on division)

(On clause 12)

We do have an amendment.

It's the first amendment from our independent member. This committee has operated such that I will read the amendment and then I'll rule on whether it's admissible or not, and why. If it is admissible, the mover, because you are an independent, will have approximately one minute to talk about your amendment, and then we will proceed to vote. Obviously, you are unable to vote on it.

The motion reads that Bill C-36, in Clause 12, be amended by adding after line 17 on page 7 the following:

(3) Subsection 197(1) of the Act is amended by adding the following in alphabetical order: “prostitution” means an act by which a person provides or obtains sexual services for consideration;

I'm assuming you're moving that, Madame Mourani. I'll give you a minute or so to speak to your amendment.

It is in order as Bill C-36 does not have a definition of “prostitution” and this wording is not the same as the previous wording, which dealt only with the sale. This definition deals with selling and buying, so it is in order.

Madame Mourani.

[Nathalie Levman]

The intention was to ensure that somebody who commits a preparatory sexual offence against a child, after Bill C-36 is enacted, would be caught. Therefore, we put the historical offences...listed them in, but subsequently, in terms of the intense review that we always do again and again, and consultations with crown, who actually of course apply these offences, we came to the conclusion that it wasn't necessary.

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

Just briefly, I thank Madam Boivin for the motion. She knows there's been much discussion of the potential for a direct reference to the Supreme Court of Canada.

Along with the government, the Minister of Justice and others, I am very confident that Bill C-36 as drafted is in full compliance with the Bedford decision and the Charter of Rights and Freedoms. This is our response to the Bedford decision. It was carefully considered and carefully crafted by the minister and by Department of Justice specialists.

We heard from those Department of Justice specialists last week. They made it clear that in their considered opinion as experts in the field of criminal law, the bill is in compliance with the Bedford decision and the Charter of Rights and Freedoms in all its aspects.

As a lawyer, myself, I say personally to you that I am very comfortable that it is compliant. I also take the words of the chief justice seriously. She said that Parliament has a legitimate right and obligation to propose a new way of dealing with the issue of prostitution.

It was thrown back directly to Parliament to do that. My personal view is that to do otherwise would be an abdication of our responsibility as elected members of Parliament. On that basis, we'll be opposing the motion.

[Françoise Boivin, NDP, Gatineau, QC]

I'll be very brief, because I don't have much hope. But you always have to have hope.

I'd like to move a motion, in one last attempt with the Conservative benches.

Based on what we've heard and based on the theories we've been hearing left and right—I'm not talking in the political sense, but in terms of the very diverse positions we've heard—I'd like to move a motion calling on the Standing Committee on Justice and Human Rights to recommend that the government send Bill C-36 to the Supreme Court of Canada before proceeding with the clause-by-clause study.

The reason, as everyone knows, is that the Minister of Justice and Attorney General of Canada is required to ensure that his bill complies with the charter and our Constitution. Constitutional experts have told us that the bill doesn't comply and others have told us that it does. Simple and good legal logic would have us present a bill of sound order, especially when this bill is in response to a Supreme Court decision.

As a lawyer, I'm not comfortable sending this bill back to the House at report stage and guaranteeing to our colleagues in the House that it complies with the charter and the Constitution.

I think we should avoid spending a lot of money. As experts and the minister himself have said, this bill will end up before the court as surely as night follows day. With that in mind, I think the prudent and diligent thing to do would be to send the bill to the court. That's what the Standing Committee on Justice and Human Rights should request at this time.

[The Chair, Conservative, Mike Wallace]

I'm going to call to order meeting number 44 of the Standing Committee on Justice and Human Rights.

The orders of today are, as per the order of reference of Monday, June 16, 2014, 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.

We are being covered by, I believe, CBC and Sun TV. All cameras are fixed. The one behind us is the camera that will be used. It will be fixed only on those who are speaking and is not to be used to pan the room.

We are joined by witnesses from the Department of Justice, in case there are any questions about the clauses or amendments that may be brought forward.

Madame Boivin, you have your hand up before we start the clause-by-clause consideration.

[Brian McConaghy]

To address the first question, basically the power and ability to choose to leave, I think, is in doubt on a lot of occasions. When women are under the control of pimps or addictions, we have seen them consent to horrendous circumstances of bodily harm. To assume that they all of a sudden have the clarity and judgment to get out under those circumstances is fairly naive.

This leads right into the problem. Forgive me if I sound somewhat schizophrenic here, but this is where the clauses within 213 provide the ability for police to remove a girl or a young woman who is abused and give her enough time to think clearly. I totally accept that and in so many ways that's necessary.

There are so many issues that fall out from using the Criminal Code to do that in terms of the victim being criminalized, but a lot of times I don't think there is much ability to consent to leave. There is not the mental preparation to be able to walk out of this.

With minors, that's easy. With minors, we can simply go in and rescue them. We've dealt with situations where minors can be removed very readily because there's the understanding that consent is not an issue. But as soon as a young woman crosses that line and becomes 18, then there's an expectation that she can make her own decisions, and it becomes very problematic because she trusts nobody and wants to participate on many occasions with no one.

So it is really problematic and I don't know how to attack that. In this whole Bill C-36 legislation, this issue is so problematic. How do we help the individuals and give them the tools to make free decisions to get out without imposing legal restrictions or criminalizing them in a way that is counter-productive. I don't have an answer for that. Perhaps that's for the committee and Parliament to hammer out, but it's very difficult.

In terms of parents and what tools parents have, I honestly don't have expertise and can't speak to that, but obviously, there needs to be much greater education. We've heard from some witnesses on committee already who have spoken—

[The Chair, Conservative, Mike Wallace]

Okay.

Thank you very much for those questions and answers.

Our last questioner for this panel and for this review of Bill C-36 is Ms. Ambler from the Conservative Party.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Thank you. I want to thank all the members of this committee for coming today and all our guests today for your input.

Mr. McConaghy, it's nice to see you. You've done so much good work with Ratanak and the Willie Pickton file. It's a great honour to have you here.

When you listen today.... I have a question and I'll try to frame it. The Bedford case gave us a year to respond. We don't send it back to the Supreme Court of Canada. The Supreme Court of Canada said Parliament must come back with a decision before December 19, with a response. Bill C-36 came about and when we're asking.... We heard so many voices of survivors, so many. The survivors came in and bravely sat in these chairs and talked about what happened to them behind closed doors. They told us that Bill C-36 was very important. Why? Because the buying of sex was going to be put in place and they had something that could bring them out in the open to be able to defend themselves because now the perpetrators were targeted.

It was a compassionate bill. For the first time in Canadian history, Canada produced a compassionate bill that looked at what was happening to the victims of human trafficking and of prostitution, which are really one and the same, because often.... We heard at this committee that there are no people under 18 who are trafficked or prostituted. In fact, when we listened to the survivors, all of them started underage and things progressed.

When we look at this whole thing, there is an urgency for Canada and an urgency for all parliamentarians to understand what's going on and to get busy and do the job instead of dragging their feet and letting it fall under the bus. We've talked about this law and that law, and the other thing. Human trafficking laws and mandatory minimums came in June 2010. It is now July 2014. That's four years ago. Following that was another law on human trafficking in 2012, and there was one in 2005. So the laws on human trafficking are new. So what do we have? We have a police force that has done a remarkable job on human trafficking. If you google human trafficking, it comes up all the time. Canada, I think, has done a remarkable job at finding out what's going on. Our government has done that; found out what has gone on behind closed doors. Now the voices of the survivors are out there.

Brian, you've had a lot of experience in this. You know what you're talking about and I want to talk to you about police training. What we've heard here in the committee is that the police sometimes think the victims should be arrested and sometimes think the victims shouldn't be arrested. They're all well-meaning because they all want to take care of the victims. But I've also heard from some of the victims. Some of the victims have said, “Well, you know when they arrest me they bargain with me. Turn over the goods and then I'll get you out of harm's way.” If they don't, they don't take them out of harm's way. That's the reality of what I've heard from the victims.

My son is a police officer. I love the police. I'll do anything for the police but I find that disturbing.

The other thing is that police are saying, “You know, if we don't have some laws, somewhere along the way, we have no tools.” I find that disturbing.

Could you talk a little bit about police training and could you talk a little bit about the realities on the street? Because we have to get this show on the road.