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

[Some hon. members]

Nay.

[The Deputy Speaker, Joe Comartin]

In my opinion the nays have it.

And five or more members having risen:

Call in the members.

(The House divided on the motion, which was negatived on the following division:)

Vote #203

[The Deputy Speaker, Joe Comartin]

I declare the motion defeated.

It being 6:10 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

The House resumed from June 11 consideration of the motion that 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, be read the second time and referred to a committee.

Second Reading

[The Acting Speaker, Barry Devolin]

When this matter was last before the House, the member for Burnaby—New Westminster had completed his remarks, but had not yet had questions and comments.

Seeing none, resuming debate, the hon. member for Charlottetown.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, on behalf of the Liberal Party of Canada, I am honoured to speak today to Bill C-36.

Today, we debate a Conservative bill that purports to comply with the Supreme Court's decision in the Bedford case. Allow me to briefly go over the circumstances that led us here today, debating the bill.

First, we are here today because a group of courageous sex workers challenged in court, and at great expense, the laws that govern prostitution, commonly known as the “Bedford case”. They did so because they wanted to ensure their work could be done in such a way that protected their security. They fought for safety and security not only for themselves, but for all people involved in the sex industry in Canada, and the Supreme Court of Canada agreed with these women.

By way of background, and many Canadians may be unaware of this, prostitution is currently legal in Canada and has been so since the Criminal Code came into force in 1892. It is the many activities surrounding prostitution which the Criminal Code prohibits, including keeping, using, or transporting a person to a bawdy house, living on the avails of prostitution or communicating in public for the purposes of engaging in prostitution. That was the state of the law prior to the Bedford case.

In December 2013, the Supreme Court struck down those sections related to bawdy house, living on the avails of prostitution and communicating for the purposes of prostitution. The court ruled that these provisions violated section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. The court also indicated that the provisions made it almost impossible to engage in prostitution in a safe environment, as a person selling could not legally operate indoors or hire security personnel. It was a historic ruling.

The court also provided government with one year to legislate and to do so with the interests of providing a legal framework that protected the safety of sex workers. This is this the government's response. Here, in part, is what the summary of Bill C-36 states:

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 place where persons under the age of 18 can reasonably be expected to be present;

As the justice minister said last week in his press conference and yesterday in his speech, the proposed measures criminalize prostitution for the first time since 1892. It criminalizes advertisement of sexual services and criminalizes communicating in public, which is one of the very components of the existing law that the court had already struck down in Bedford.

It is hardly surprising then that a great many of us in the House, and outside of the House, are concerned about the approach the government is taking. By criminalizing almost all aspects of prostitution, the government claims to have struck a made-in-Canada solution to the so-called Nordic model.

Sadly, Bill C-36 has as much, or more, in common with the prohibitionist approach in force in Albania, Croatia and Russia.

In Russia, brothels are illegal. Under Bill C-36, they would also be illegal in Canada. In Russia, living on the avails of prostitution is illegal. Under Bill C-36, this would also be illegal in Canada. In Russia, buying sex is illegal. Under Bill C-36, this would also be illegal in Canada.

In Russia, selling sex is illegal. Under Bill C-36, except for a few narrow exceptions, it will also be illegal in Canada. Selling sex will be illegal in public, it will be illegal near places where children may be, and it will be illegal with underage prostitutes. The differences between the Russian approach and this so-called made-in-Canada approach are relatively minor. I wonder if those present find it somewhat troubling that a country with Russia's human rights record has a regime governing this social issue that is so close to the legislation before the House today.

The purpose of the Bedford case in the Supreme Court decision was not to pass moral judgment on this activity but rather to provide a legal framework that would make the environment safe for the women and men involved in the sex industry. Therefore, it is incumbent on the Conservatives to introduce a law that provides a legal framework that would make sex work safer. Instead, we have a law that would do the opposite.

Bill C-36 should be about public safety, and I have concerns that the bill falls short of that goal. I am not at all convinced that this bill would protect the women and men who are engaged in sex work. I would also suggest that Bill C-36, in all likelihood, violates the charter with respect to section 7, on life, liberty, and security of the person; with respect to the provisions regarding cruel and unusual punishment; and in respect of the ban on advertising, the charter protection of free speech. One wonders whether the Conservatives and the justice minister know this.

Perhaps they know that this bill is unconstitutional, and perhaps they know that the bill is not consistent with the Supreme Court ruling in the Bedford case. Again, the Conservatives have a duty to comply with the spirit of the Supreme Court ruling in Bedford. I am not convinced that this is the case, and I doubt that the bill meets the letter or the spirit of the Bedford ruling. The one element of the court ruling they seem to have complied with was the one year provided by the Supreme Court to legislate in this matter.

The last couple of times they faced problems with legislation that clearly intersected with the Constitution, the Conservatives did a couple of things. The two most recent examples are the Senate reference and the Nadon appointment. With respect to the Senate reference, the Conservatives realized that there was a potential conflict with the Constitution and referred the matter to the Supreme Court. With the Nadon appointment, again they realized that there was a potential conflict with existing legislation. They took a couple of steps. First, they sought outside opinions with respect to compliance with the Supreme Court Act, and second, they also made a stated case to the Supreme Court.

In addition, there are provisions within the Department of Justice Act, section 4.1, that come into play with respect to the constitutionality of the legislation. Undoubtedly the government has an opinion pursuant to section 4.1 of the Department of Justice Act.

There is no doubt that this bill is also headed, eventually, to the Supreme Court for adjudication on whether it complies with the Charter of Rights and Freedoms. However, the minister to date has refused to refer the bill to the Supreme Court to ensure its constitutional validity, resorting instead, as we saw yesterday, to personal insults. Nor have the Conservatives given any indication that they will disclose any time soon key evidence to support the bill.

Perhaps this bill is a political stopgap measure to meet the one-year deadline imposed by the Supreme Court. Perhaps the bill is a politically driven document with an overarching purpose, which is to punt this sensitive and important issue beyond the next election. Refusing a referral to the Supreme Court of Canada is consistent with this view.

As I have indicated on many occasions, the Conservatives have a track record of introducing legislation for political and partisan reasons. I hope that is not the case in this instance. I hope it is not the intent of the Conservatives to tee up the fundraising machine on an issue related to the safety of sex workers in Canada, in the context of the bill and the court ruling. I hope that the Conservatives will avoid what they have done so often in the past and will avoid the temptation to place their own political interests first.

I am also concerned about the lack of transparency as it relates to evidence. Why will the Minister of Justice not produce the evidence to support his assertion that the bill is constitutional? Why will he not waive his privilege and release the Department of Justice documents that prove that Bill C-36 passes the charter test, as is required under section 4.1 of the Department of Justice Act? Why will the minister not release any evidence, if he has any, that would support his contention that the bill is charter compliant?

We know that he will not release any charter compliance documents, but the minister is also refusing to release any time soon the $175,000 study his department conducted on this topic. Canadians want to know why the minister is refusing to release the study, a study paid for with public funds and one that would have material relevance to the five-hour debate before this House and material relevance to the committee hearings that are undoubtedly on the horizon.

Might we speculate as to why the minister would refuse to release that study? Could it be that the study might contain facts or evidence inconvenient to the Conservatives' position or political interests?

As criminal defence lawyer Michael Spratt said in a recent blog about research and the recent cuts made at the justice department:

It is sometimes said that justice is blind—but justice policy should not be....

This is not about politics—quite the opposite—this is about evidence-based policy. It is only when legislation is based on legitimate evidence that there can be any confidence that the law will accomplish its goals.

Perhaps the Conservatives are not really concerned with achieving their criminal justice goals, (i.e., keeping the public safe). They have ignored evidence on drug policy, minimum sentences, and child protection—to name a few (resulting in multiple laws being struck down as unconstitutional).

In the lead-up to introducing this bill, the minister was claiming to have all the evidence he needed. What might that evidence be? The minister seems to be basing his bill in part on an online survey he conducted. A voluntary, non-scientific, online survey cannot be the basis for constructing a bill of such importance, let alone one mandated by the Supreme Court of Canada. We really should be concerned that the government seems to be using a Kijiji approach to public policy.

Also notably absent from this bill is any measurement mechanism. It is often said that we cannot manage it if we do not measure it. There are absolutely no provisions in this bill to collect data on the effectiveness of the measures contained in it. Data collection would help inform future amendments and fiscal measures to help the most vulnerable. The concern over this is magnified when we look at the millions of dollars cut out of the Department of Justice budget with respect to research. The reason given is that all too often the research did not align with government priorities. Against that backdrop, we have the absence of any data collection measures in this bill. It is indeed troubling.

An email was recently sent to the leader of the Liberal Party by a woman named Rachel. She wanted the opportunity to share her story about the impact this legislation will have on her. She wanted someone to listen to her and to the many others who feel similarly. Here is what she wrote:

Bill C-36 horrifies me—it will have a catastrophic effect on my safety and livelihood.

I have been an indoor sex worker for 5 years. I screen clients to ensure my safety. This involves asking for a reference from another sex worker, and then contacting that worker to ensure the potential client was respectful. If it's the client's first time seeing a sex worker, I require their full legal name, employment information, and cell phone number. I have a conversation via phone or email to discuss what services they are seeking, and what I am comfortable providing.... I check the client's information against a bad date list—a compilation of bad clients which is shared among sex workers. I always meet new clients in a public place prior to the session, for example: a coffee shop or the lobby of their hotel.

Because I am able to screen my clients, I have NEVER experienced violence during my 5 years in sex work. If you criminalize my clients, they will be unwilling to provide the screening information I require to ensure my safety. I will not have any client information to add to a bad date list should something go wrong. If they've seen a sex worker in the past, they will not want to provide that reference because it will mean they are admitting to committing a crime. I will be forced to accept clients that block their phone number, hide their identity, and have no references. This is a gift to sexual predators posing as clients.

Like 90% of sex workers in Canada, I work from an indoor space, known as an “incall”. If I am assaulted in my workspace, due to my inability to screen my clients, I will be unable to contact the police, as this would reveal the address of my incall location. This means police can easily arrest my good clients as they come to see me at my safe indoor location. I also risk being evicted by my landlord.

Bill C-36 will have an even worse impact on street based sex workers, who also rely on screening their clients to ensure safety. Street based workers need time to refer to bad date lists, to negotiate safer sex practices (such as condom use), and to assess the client. Bad date lists may include the time and date of an incident, a description of the vehicle, a licence plate number, a description of the person, etc. If clients are criminalized and fearful of arrest, they will try to speed up the process limiting the time a sex worker has to vet their client, and refer to a bad date list. Sex workers will be forced to jump into a vehicle with a client without taking these vital safety measures. They will be forced to work in isolated areas away from police, so their fearful clients will continue to see them. Bill C-36 is a gift to predators posing as clients.

This bill will not stop sex workers from working, it will just impede their ability to work safely.

The letter closes with:

Bill C-36 will kill sex workers if it is passed.

History will look poorly on this government for many reasons: the deliberate division, the attack on people who disagree, the politicizing of criminal law, the abuse of power, election fraud, and the list goes on, but I believe that what the government is doing here today with this bill is particularly concerning.

The government's history of politicizing every issue causes us great concern about what it has done with the bill before the House. Never should the interests of a political party trump the safety of Canadians.

Many people believe that Bill C-36 will hurt people, and it will potentially force sex workers into the back alleys without the protection they need.

Parliament has a duty to protect Canadians, whether or not we personally morally agree with their profession. The Conservatives have a duty to obey the letter and the spirit of the Supreme Court ruling in the Bedford case. On all these counts, the Conservatives have failed and are doing so for political reasons, and for that they will have to live with the consequences should Bill C-36 be enacted by Parliament.

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, I have a couple of concerns about the opposition to the bill. A lot of the opposition is based on the assumption that the current status quo is full legalization.

In the sex worker's letter he quoted, the lady was describing activities that are already illegal. Advertising, soliciting sexual services, and doing it both online and in public are already illegal activities. If these people are already willing to give their information during this illegal activity, I am not sure why they would not under this new legislation.

This legislation actually does meet the spirit of the Supreme Court ruling. It was clear in its ruling that it was not only open to it but was requesting that Parliament seek legislation around prostitution. To just decriminalize it or legalize it all we would have to do is let the year go by. It was clear that it wanted to do something more than just get rid of all legislation.

I would like the member to comment on this and explain how this does not meet the spirit of the Supreme Court ruling.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, when the member says that many of the complaints raised by Rachel in her letter to our leader are already illegal, perhaps he should be reminded that if we take that statement as true, there is a Supreme Court of Canada decision that says the laws that make whatever conduct he says is illegal are unconstitutional.

If we take what he says as true, that these parties are engaging in illegal activity, the highest court in our land has said that the laws that make it an illegal activity do not withstand the scrutiny of the charter.

The second part of the member's question was exactly how does this offend Bedford. In the Bedford decision, Parliament was directed to focus on the safety and the security of the most vulnerable in our population. Instead of focusing on their safety and security, in many places and in many aspects, the legislation makes them criminal.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I thank my colleague for a very thoughtful and analytical discussion. The government cut funding to the Status of Women, closed 12 of 16 regional offices, defunded the National Association for Women and the Law, CRIAW, undermined pay equity, changed EI, and jeopardized women in low-income and part-time work, provided no national child care program, no housing, said no to an inquiry into the murder of 1,200 aboriginal women. It now purports to care about women?

Conservatives have made it very clear over the last eight years that they have no regard and they are not interested at all in the welfare of women. How can we possibly trust them to look after the most vulnerable of women?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I frankly could not agree more. What we have seen with the government is a single-minded obsession with balancing the budget and everything else is way down the list. Veterans are way down the list. Charter rights are way down the list. Certainly in this case, sex workers who have had the benefit of a Supreme Court decision are well down the list.

It is a sad indicator on where we are in Parliament today that the single-minded obsession with matters of finance have put the rights of individuals and the charter and the interests of the regions as far down the list as it has. Unfortunately, such is the world in which we presently live.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, to my colleague from Charlottetown, the Canadian Federation of University Women is a group that has been staunchly supporting the so-called Nordic approach based on women's equality and based on reducing violence and exploitation of women and children. It has responded to the Conservative government's bill by issuing a press release strongly criticizing the bill for criminalizing vulnerable women in the sex trade.

Could my colleague please explain why criminalizing prostitution further endangers these victims of exploitation?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I believe much of the answer is found in the letter to our leader from Rachel.

There is no more striking example than the provisions within the bill with respect to those who are underage. I could think of no one in the context of the Bedford decision who is more vulnerable than an underage prostitute working the streets. The bill criminalizes anyone who is under age 18 for communicating for the purpose of prostitution. It singles out the most vulnerable and puts a criminal sanction on their work.

The result of this would be to push everything into the shadows. As Rachel so eloquently said, this is a gift to sexual predators posing as clients.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, last week the member's colleague, the member for Malpeque and the Liberal critic for public safety, agreed with the NDP critic for justice and myself that the majority of the women who find themselves in this ugly trade are in fact exploited. By the way, we did not say that it is 51% who are exploited. The studies we have seen show that it is more like 90% of the women are exploited, and some would say it is higher than that. Do we not have an obligation as parliamentarians to protect those people?

Earlier today, Katarina MacLeod, a former sex worker, appeared at a press conference and told her story. She detailed a harrowing story of abuse, rape, and exploitation starting at the age of five when she was molested, and it lasted through her 15 years as a sex worker. She went on to say that if Bill C-36, the government's proposed prostitution legislation, had been around when she was a sex worker, there would have been no demand and no supply, and that maybe she would be less scarred today. She said, “I can tell you there is no safe location for prostitution“. Not inside, not out on the streets.

I wonder if the member could comment on that as well as on protecting our communities.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, we absolutely do have an obligation to protect those most vulnerable. That is what the Supreme Court of Canada has directed Parliament to do. However, Bill C-36 would fail in that regard. The bill would drive prostitution into the dark corners. It would make it less safe. It would not, in any way, protect the most vulnerable. It fact, it would have the opposite effect.

The decision to double down on criminal sanctions in the face of a complex social problem is absolutely consistent with what we have seen with the Conservative government. When the only thing one has in one's tool kit is a sledgehammer, everything looks like a rock. If there is a complex social problem, the Conservatives have a mandatory minimum for that. The very problem with the overarching approach of the current government is that when faced with complex social problems, the Conservatives seem to always have a one-size-fits-all solution.

Criminalizing the very people who need protection is the wrong way to go, but, sadly, that is the approach that has been chosen.