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.

Motions in amendment

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

Mr. Speaker, I would like to thank my friend, the NDP justice critic, for her contribution and participation in the House of Commons justice committee review over the summer.

I note that in her speech today, and at other opportunities, she mentioned that she did not understand how something could be illegal to purchase but not to sell. I would remind her that when the bill was introduced, the Minister of Justice said quite clearly that for the first time in Canada, prostitution would be made illegal by this bill.

The bill would provide an exemption to the persons who would sell their services, because, in the view of the government, we see them as primarily victims. The Minister of State for Western Economic Diversification made a good speech earlier about consent and how many people in this business were really not in a position to give consent because they were forced by their circumstances to do this.

What I want to ask her very succinctly is this. If her party were to propose a bill, would it make the purchase of sexual services of another person illegal?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I find this debate somewhat uninspiring. In saying that it has created an exemption, the government is avoiding saying what it cannot legally say. It cannot legally say that prostitution is illegal in Canada. That is what I believe based on information that I myself received from some of this country's leading constitutional experts. Before I began my speech, the minister talked about how all people have the right to do what they want with their body. We subscribe to that principle with respect to abortion, the right to choose and so on. We have to apply that logic to everything, like it or not. It does not matter if it is not the way I am raising my girls. Our Constitution and our Charter of Rights and Freedoms dictate the kind of society we want. It is not up to me to tell people what to do.

When we asked them to clearly state the basis of their intent to make prostitution illegal, they objected to that kind of amendment.

If they want to know what we intend to do, I can say that we will show them when we take power in 2015.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I would like to ask the member for Gatineau a question about the amendments that were presented in committee. She put forward several amendments, and all but one were rejected.

My question is with respect to the only amendment that the government saw fit to accept from the official opposition over the course of the summer, and that amendment called for an automatic review of this bill after five years.

Given the numerous constitutional concerns that have been expressed, given the inevitable charter challenge that awaits, is it not really a pyrrhic victory, the passing of this amendment five years down the road? Will we not be well into the litigation process or have already passed the amendment process by the time this has any effect?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I doubt that the hon. member heard that from me. I did not leave the committee jumping for joy because one of my amendments had been adopted. I think this is the same as a rejection. What we were asking for is that this be done in the first two years. That seemed perfectly reasonable to us, especially considering that the Conservatives rejected our even more important amendment. It sought to provide members of the House with key statistics such as where the money was spent, how many people managed to get out of the trade and how many people ended up trapped in the trade, in order to see how far the government managed to get with its so-called eradication of prostitution.

I think that five years from now, we will not even see this review of the act itself, given the fact that the issue will likely end up in court. However, when we look at the Bedford case and the time it took for a final ruling by the Supreme Court, I am not sure that we will have a final ruling. However, I am sure that we will no longer have a Conservative government, and it will be part of our job at that point to review many laws to ensure that we are adhering to the principles set out in the Bedford ruling.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I rise in the House today to speak to Bill C-36 at report stage. I stated in the last session that the bill would likely be unconstitutional. This was confirmed by virtually all of the legal witnesses who testified at committee with the exception of the minister and those employed by his department.

Let there be no doubt that this unconstitutional bill will pass the House because the Conservatives hold a majority of the seats in the House. Once it has completed its perfunctory process here at report stage and then third reading, the legislation will proceed to the Senate. That chamber is also controlled by the Conservative majority, and it was decided that it would undertake a pre-study of the bill, meaning that even before the legislation is passed in the House, the Senate Conservatives were holding hearings. Senator Linda Frum was quoted in the media today confirming that any changes to the bill were highly unlikely.

Please allow me to provide an overview of what has transpired with the issue of prostitution, including an overview of the legislative process to date.

As it currently stands, prostitution is legal in Canada and has been since 1892 when the Criminal Code was first enacted. It was the activities surrounding prostitution that were illegal until the Supreme Court ruling in Bedford. Specifically, the Criminal Code outlined communicating in public for the purpose of prostitution, living on the avails of prostitution and operating a common bawdy house, otherwise known as a brothel.

By way of background, it is critical to reference the famous Bedford case, the reason we are here today. In its landmark court case, a group of sex workers brought forth a charter challenge arguing that those three aforementioned provisions of the Criminal Code put, in the view of sex workers, their safety and security at risk, thereby violating their charter rights. In its landmark decision last December, the Supreme Court of Canada agreed with those sex workers and struck down those three Criminal Code provisions, determining that they violated section 7 of the charter, which protects life, liberty and security of the person.

The Supreme Court suspended the ruling from coming into force for a period of one year to give Parliament the opportunity to enact new legislation if it chose to do so. This past June, the Attorney General introduced Bill C-36, a legislative response to the Supreme Court's ruling.

As I have stated, prior to the committee hearings in July, I share the consensus view of legal commentators who strongly believe Bill C-36 is unconstitutional in whole or in part. I do not believe the legislation complies with the Supreme Court ruling. Nor do I believe it complies with the charter. Furthermore, I indicated that the legislation might very well put sex workers at a greater risk of harm or worse.

The Conservatives claimed that they consulted widely about the bill without providing evidence of these consultations. They further claimed that they checked that Bill C-36 was charter compliant, again, without producing evidence in the form of legal opinion despite repeated requests.

The Conservatives rejected a request to refer the question of the bill's constitutionality to the Supreme Court of Canada. They claim to have relied upon evidence in the form of an online survey of Canadians. This survey is really a pretty obvious effort to provide cover from the inevitable critique that they once again defaulted to ideology in crafting the bill. This survey is passed off as evidence by Conservatives.

The Conservatives fail to mention how unscientific online surveys are, especially when the possibility of organized interest groups target the survey in order to skew the results. Is this really what Canadians want from their government, conducting surveys with inherent flaws as the basis for making serious changes in law, or even more worrisome, as the basis of responding to a Supreme Court's decision? Yet we have the spectacle of the Minister of Justice waving around this survey as some sort of conclusive evidence of the current thinking of Canadians.

Then there is the $175,000 Ipsos Reid poll the government commissioned seeking the actual views of Canadians about prostitution. Time and again, the Liberal Party and my colleagues in the official opposition called on government to release that poll, a real poll, to Canadians and to do so before the parliamentary hearings, held this past July. The minister steadfastly opposed releasing the contents of that poll, despite the fact that the information contained might have been helpful to the justice committee's deliberations. In fact, at committee, when questioned about releasing the data from the poll, the only substantive comment came from a Department of Justice official, who said the poll contained useful information in crafting the bill.

Let us recap again. The Conservatives create a ruse. They create a scientifically unreliable website-based survey and use that as evidence. At the same time, they have in their possession actual evidence from their Ipsos Reid poll, evidence that they refuse to release to Parliament or to MPs serving on the justice committee. At the parliamentary hearings last July, I asked the minister about this poll and why he would not release that evidence. Allow me to highlight the exchange because most members would not be familiar with some of the exchanges at committee.

Here is an excerpt from the official parliamentary record of that exchange.

I asked the minister:

I want to come back to [the member for Gatineau's] question with respect to the $175,000 survey or poll that was done by Ipsos Reid. You have indicated that we're going to be able to see it once these hearings are over. Mr. Minister, you have the power to allow us to see that sooner, do you not?

The Minister responded:

The survey itself was not particular to this question of prostitution only, and so there is a normal six-month time period that is invoked for when that polling information will be released. I should note for the record...that you're aware there have been other surveys done and other polling information available that has been released or is in the public domain.

I asked:

Mr. Minister, do you have the power to abridge the time in which we see this $175,000 Ipsos Reid survey? Do you have the power to give that to us before we examine all these witnesses?

The Minister responded:

There is a six-month timeframe that we will respect.

I persisted:

So you have the power, but you're deciding not to exercise it?

He responded:

I didn't say that. I said we'll respect the six-month timeframe.

I asked him:

Do you have the power to abridge it?

He said:

We'll release it when the six-month timeframe is up.

I said:

Is that a yes or a no?

He said:

We'll release it when the six-month timeframe is up....

I asked him again:

You won't tell me whether or not you have the power to abridge it, but if you do, you're not going to exercise it.

He responded:

What I'm telling you is that you'll have the information when the six-month period is up.

There it is: Conservative obstruction in full view. The Minister of Justice repeatedly refused to release that evidence before the justice committee, evidence he knew completely contradicted the government's line about Canadians' views on prostitution. We can only conclude that information, that evidence, was purposely withheld from Parliament and concealed from MPs serving on the justice committee. It was withheld because that evidence tore a gaping hole in their false narrative.

We now know that shortly after the parliamentary hearings on Bill C-36 were completed, some brave whistle-blower leaked the contents of the Ipsos Reid poll to the Toronto Star. It is very clear why the Conservatives did not want the Ipsos Reid poll made public. Contrary to the misinformation of the Conservatives, the evidence in the poll suggested Canadians were very much split on the subject.

As I have said before, the Conservatives are entitled to their own ideology and their own opinions. They are not, however, entitled to their own facts. Withholding key evidence from the committee was deliberate, and that should trouble any Canadian who values honesty and integrity regardless of what side of the prostitution debate she or he may fall on.

I will leave it at that for now. I look forward to the third-reading debate, where I will go over and highlight what the justice committee heard at our hearings in July.

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

Mr. Speaker, I would like to thank the Liberal justice critic for his speech and for his participation in the House of Commons justice committee proceedings this summer.

First, I would like to respond to something he mentioned in his speech. He said no lawyers, other than government lawyers, confirmed the constitutionality of Bill C-36. That is not true. Professor Benedet of UBC, one of Canada's foremost constitutional law experts, certainly did confirm that it was constitutional, as did several other lawyers. If he has forgotten, I would be happy to share the transcript of the parliamentary committee's work with him.

My question, though, for him is the same question I proposed to the NDP, which responded, when asked what it would do, that it will wait and find out. We do not know what either of these parties would do with respect to prostitution. What is the Liberal Party's position? Would it propose a bill to make the purchase of the sexual services of another person illegal in Canada?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I will take the parliamentary secretary up on his offer of showing me where Professor Benedet indicated that the bill was constitutional. I was at the hearings. I listened very carefully to Professor Benedet, so if he has a transcript, then I will stand corrected.

In fact, the only lawyer, the only person with legal training, who testified at committee that they felt the bill was constitutional was one who represented the Evangelical Fellowship of Canada, and that lawyer was contradicted by her own client. The other lawyers who indicated that the bill was constitutional were the Minister of Justice or those in his employ. Therefore, I will take him up on his offer, if that is not the case, absolutely.

As to the Liberal Party's position with respect to prostitution in Canada, we believe that the government should have passed a bill that complied with Bedford, that complied with the Charter of Rights and Freedoms, and that protected the vulnerable. It did none of the above.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Mr. Speaker, the majority of my constituents have indicated to me, by email and in person, that they believe that biological and pragmatic, and even political, reality as well as human nature indicate that we should legalize it, tax it, and regulate it. The bill, obviously, would make things worse, in terms of protecting women from violence.

My question for this hon. member, after his fine speech, is a political question. Why does he think the Conservatives are bringing forward a bill that is clearly unconstitutional, totally irrational, and makes no pragmatic sense, at all?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, it is really difficult for me to try to get into the heads of the Conservatives and understand the rationale, because I am wired differently.

However, allow me to speculate here, in this sanctum of parliamentary privilege. A tough-on-crime party wants to look around to criminalize whatever and whomever it can. Therefore, the bill would succeed in attaching criminal sanctions to many of the aspects of this complex social problem. The only other thing that I can think of is that it must have some appeal for its base.

Finally, this is something that, quite frankly, just kicks this problem down the road. That is why the Conservatives refused our call to refer the matter to the Supreme Court of Canada. They know it is unconstitutional, but this will get them past the next election.

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

Mr. Speaker, it is my pleasure to speak to Bill C-36. As members know, I am supportive of the bill as a response to the Supreme Court of Canada's December 20, 2013, Bedford decision. In December last year, Canadians received a Christmas present. For the most part, they did not know what was happening as they were busy getting ready for Christmas. The Supreme Court of Canada deemed all of the laws around prostitution unconstitutional. It allowed the government a year to respond to that and there has been a tremendous amount of work that has gone into the bill, including a lot of study of this important legislation. It is possibly one of the most important pieces of legislation and I am totally convinced that it will keep our youth and our people safe.

We heard from a lot of people, including front-line support workers, police services, chiefs, and experts from the legal profession. I must say that Professor Janine Benedet, one of the foremost constitutional lawyers in this country, who had worked on the Bedford case as well, fully expects the bill to be and has said that she firmly believes it is constitutional. As members know, many bills are defeated on a charter challenge. However, without a doubt the bill is constitutional.

I am especially impressed by all of the victims who came to committee and the survivors who came to testify at both committees, because that is what this is all about—survivors finally talking about what happened to them. Human trafficking and prostitution were under the public radar for years. Everyone felt that if young girls or boys sold sexual services that was what they wanted to do. However, at committee we found out it was totally opposite to what the public thought. Why is that? Because more and more families across this country are being impacted by predators who come on as their friends and lure them into the sex trade and then they get into drugs and all sorts of things.

However, they have no voice. Bill C-36 allows those victims of human trafficking and those who have been forced into the sex trade to have a voice and the freedom to come and testify before us. They are the ones who need our attention and protection and we must not forget them.

After sitting around the table listening to these survivors, I would say that every Canadian should read the testimony of that committee because they would learn a lot about what is happening to a lot of children in communities all across this country. We have learned that predators earn about $260,000 to $280,000 a year per victim. That is why they do it. It is all about the money. A lot of the people connected to those predators earn a lot of money too. Hence, what is happening in this country is that a lot of people are protecting their cash flow at the expense of modern-day slavery.

During the hearings, law enforcement agencies also came forward to express their overall support for Bill C-36 and applauded the strong message it sends to all Canadians, which is basically that we will go after the pimps and johns and we will put support systems in place for the victims of human trafficking and those people who have found themselves in the sex trade without ever intending to be there. The police officers agreed that prostitution is an inherently dangerous activity and emphasized a need to prosecute those who profit from the sexual exploitation of others. I spoke earlier about predators making between $260,000 to $280,000 per year, which is a lot of profit. The police also emphasized the need to have in place the necessary tools to protect our communities from the harms of prostitution so that parents do not have to sweep away syringes and condoms from the school grounds of their children.

It is not about arresting victims at all. The only provision within Bill C-36 has to do with schools, playgrounds and pools, right on the grounds themselves. The fact of the matter is that Canadians agree that children should be protected. More and more Canadians in communities across Canada are starting to understand that they are also protecting their own beautiful children and vulnerable children from predators, due to Bill C-36.

We heard a lot of things in committee. We also heard another perspective that said people have rights to choose any profession they want, and, of course, that is true in Canada. However, we listened to the survivors of forced prostitution, human trafficking, and all of those stories that came forward. I cannot help but emphasize the contrast between the stories of the people who said that prostitution is an industry and government is circumventing their rights if it starts addressing it, and the stories of those who have experienced pain, suffering, and victimization while at the mercy of pimps, drug dealers, brothel owners, criminal organizations, and human traffickers. It is just unbelievable. When they bravely came to committee for the first time to tell people what happened to them, it was all we could do to keep our composure.

For someone who has worked with victims of human trafficking and those who were forced into prostitution, it was very profound to see these courageous people get up at committee to talk about it.

Statistics and research show that those who are most vulnerable to becoming involved in prostitution are marginalized, disenfranchised, and vulnerable, and the vulnerable can come from middle-class Canada.

We had many cases across this country where middle-class young people came forward. They were trafficked because of the way that the predators operate. They come on as their boyfriends, and they believed they were in love and that nobody wanted to exploit them. It never crossed their minds, until all their identification was taken away and they were forced to sexually service men or women. Those are vulnerable people.

We also speak to the homeless and those who have suffered abuse as young children or have suffered from addictions. A lot of those young, underaged people who are victimized are not addicts when they go into it. It is to camouflage their pain and to get through the day that it happens.

It is critical that Bill C-36 prioritizes this vulnerable group that people are talking about more and more, to protect them from harm.

It has been seen in many countries, many jurisdictions, that targeting the johns and the pimps is the right thing to do. In this country, human trafficking and forced prostitution was under the public radar screen for a very long time. We hear over and over again that $40 million is not enough. Well, it is a very good start.

Provinces, municipalities, and others need to contribute to this as well. Bill C-36 would address, in a very bold way, a problem that has remained under the public radar screen for a very long time. It is not about taking away some person's right to choose whatever profession they want to be in; that is up to consenting adults. That is not what the bill is about. The bill is about making sure that these vulnerable populations I have been talking about are protected, that they have a chance, even if they are caught in the horrible trafficking or forced prostitution field. Now they are protected because they are able to report the abuse to the police and they are able to get out and be rehabilitated.

I am very proud of Bill C-36. I am very proud of what our government is doing. A lot of people across this nation are listening to this debate and listening to what other people have to say, on all sides of the House. There is a very strong contrast between our government, which is standing up for the vulnerable, and those who are not on the other side of the House.

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

Mr. Speaker, I will start by saying how admirable the work is that my colleague has been doing for the past years with victims of exploitation and human trafficking. I would like to commend her for her leadership on the issue.

My question is mostly technical. All the situations the hon. member has described in her speech are already touched on by the Criminal Code. Article 279.04 talks about exploitation, and article 279.01 talks about human trafficking. I would remind the member that the sentence for human trafficking is life in jail.

None of the police officers at the committee were able to name new tools that Bill C-36 would give them to help victims of trafficking. I would like my colleague to name new legislative tools, not only the money, to help people get away from human trafficking.

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

Mr. Speaker, first of all, my own son is a police officer who works with trafficking victims. He has done that for a number of years. One tool we were talking about the other day that is so important is how victims now have the ability to report abuse to the police.

They would not arrested under Bill C-36. The only place from where they would be asked to move along is in front of schools and playgrounds. That does not mean that they would be formally arrested. In every other place, the victims would have a right to say to the police officer that they have been abused, that this is what is happening to them, and to please help them out. That is a big tool.

What happened before was that the victims were controlled by the pimps and the traffickers. If they went to the police, they were arrested. In fact, before this bill, when there was a takedown, between the pimps and the prostitutes, more prostitutes were arrested than anybody else.

We have to change our language around prostitution. It is modern-day slavery, for the most part. There are very few people who choose to go into something like this. When we stop to think about it, what woman would get beaten, give all of her money to somebody, and then keep silent about it?

This is a huge tool in Bill C-36.

[Adam Vaughan, Liberal, Trinity—Spadina, ON]

Mr. Speaker, my question for the member opposite and to the proponents of this legislation is this. You have identified where you think this bill would be effective—

[The Acting Speaker, Barry Devolin]

Again, I would remind the hon. member to direct his questions and comments to the Chair rather than directly to his colleague.

[Adam Vaughan, Liberal, Trinity—Spadina, ON]

Mr. Speaker, through the Chair, I apologize.

The member has identified that the legislation would attack the system of advertising these services. The legislation talks about the system of reporting to the police and the conversations that would be possible between people who have been trafficked and the law enforcement agencies. The member talked about a series of systemic approaches that need to be changed in order to change the culture around this issue.

However, when it comes to missing and murdered indigenous women, the same government responds to it as an individual situation, that there is no sociological or systemic reason there.

I would like the member, through the Chair, to explain to the House exactly why this is a systemic problem, but the other one is not; it is rather one of individual choices and individual situations.