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.

[Donald Piragoff]

Bill C-36 removes the inherent limitations in the existing definition of bawdy house by deleting those limitations, and essentially would allow a sex worker, either alone or collectively with other persons, to carry out activity in a fixed indoor location, provided there is no exploitation or commercialization of any of the individuals involved.

Also, the bill, through the exemptions that Ms. Levman mentioned, would permit a person to rent a place. In Sweden, under the strict Nordic model, persons cannot rent an apartment or hotel room because of the fear that the landlord could be charged. This bill would provide that the sellers of sexual services could purchase any service that is available on the market, like any other person could. They could rent a place. They could deal with pharmacists. They could deal with doctors. They could hire protective services, just like anyone could hire a protective service that is available to the general public if they felt they needed it. The bill specifically deals with the safety deficiencies that the Supreme Court found within the existing law.

I might add that the existing law, of course, is a situation where the sale and purchase of sex is a legal activity. This is providing this protection even though the activity is an illegal activity. This bill actually goes beyond. It says that even though the activity is illegal, this is going to afford protection to sellers of sexual services. It goes beyond what was required by Bedford.

Bedford was dealing with a situation where the activity was legal, and they were asking how you can endanger people who are involved in a legal activity. Now, under Bill C-36, it will be an illegal activity, but Bill C-36 will still provide these people with protection.

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

It sounds to me that if you take the coercion and the undue profiteering of others out of the mix, it will certainly make the lives of the people who are in this business easier and perhaps give them other choices.

Mr. Piragoff, can you outline in a nutshell why you think Bill C-36 addresses the concerns of the Supreme Court in the Bedford decision with respect to the safety and security of the individuals involved in prostitution under section 7 of the charter? Can you just give us in a nutshell why you think this bill is constitutional and will withstand a charter challenge on the provisions laid out by the Supreme Court in Bedford.

[Nathalie Levman]

As the minister said, those exceptions ensure that people who sell their own sexual services can develop legitimate family and business relationships, just the same as you or I. It has a number of different exceptions. I think what you're referring to is the fourth exception, which allows for some informal arrangements where services or goods are not offered to the general public, but they might be offered to a particular person, for example, a friend who is willing to provide some protective services on a weekend, let's say. This was crafted very carefully.

To access that exception, the person has to receive only what would be a fair value for the service provided, and couldn't be involved at all in the actual provision of sexual services, couldn't encourage, incite, or anything like that. So it's exactly the same as if I felt that my security was threatened, and I hired a friend. That is intended to provide an opportunity to implement certain safety measures when engaging in a very risky.... But if Bill C-36 is enacted, it would be an illegal activity.

The legislation is also very careful to recognize that when third parties develop economic interests in the prostitution of others, there's a risk that they may become unscrupulous and exploit, and that evidence is also listed in the bibliography and in the end notes to the technical paper for your reference. To address that very real concern, Bill C-36 takes away the exception if any exploitive circumstances exist. So if that person starts involving themselves in the prostitution of that other person starts inciting or encouraging or procuring using violence, and offering drugs to aid and abet, or—and this is important I think in relation to your comments—if that material benefit is received in the context of a commercial enterprise that offers sexual services for sale, that is considered to be exploitative a priori by Bill C-36. So Bill C-36 doesn't allow the commercialization or institutionalization of prostitution because it considers that to be harmful in itself. The risks, the links to human trafficking, are too high. I would make that point.

That's how the legislation carefully allows for certain measures to be undertaken, but also recognizes the inherent dangers and is careful to take away the legislated exceptions when any kind of exploitation presents itself, as the minister has outlined in his remarks.

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

Thank you, Mr. Chair.

Mr. Piragoff, the minister spoke about exploitation. We've heard lots of commentators talk about the exploitation of the prostitutes, men or women, who are in this business. Bill C-36 focuses on exploitation, on material benefit, that is exploitive in nature. I'm wondering if you can tell us a bit about why you focused on that. Do you feel that by focusing on those who exploit—in other words, a pimp who takes 75% or more of the fee that the prostitute receives as their fee, or the strip club or massage parlour owner who takes a significantly higher portion than the individual would receive from that fee, people who extort money from prostitutes in other ways—how will that in your view make the lives of prostitutes safer and assist them in exiting the business?

[Donald Piragoff]

There's a significant amount of difference. The first difference is the purpose of the legislation. The existing section 213 was interpreted by the Supreme Court as being essentially a nuisance offence. Basically, it was to control nuisance on the street.

Bill C-36's reformulation of section 213's objective is to protect children from the harms of prostitution. It is to essentially prohibit soliciting in front of children because of the harms that may befall children, and also drawing them in.

It is not geared to controlling the nuisance on the street. It is to protect children. It's a different legislative objective, so there's a huge difference.

The other difference, of course, is that it's a lot more narrow in scope. It only applies to places—not any place—where there's a reasonable expectation that children would be present, which means that in the case of any place other than that, a person would be able to solicit legally.

[Sean Casey, Liberal, Charlottetown, PE]

Okay.

You were here when I asked the minister about consistency between Bill C-36 and Gladue. Bill C-36 contains some mandatory minimums and increases some mandatory minimums.

Would you agree that on their face the mandatory minimums contained in Bill C-36 run afoul of the principles enunciated by the Supreme Court in Gladue?

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

To begin I'd like to stay with the issue of advertising.

Could one of you tell me whether you agree with this statement? It's from a document written by Sandra Ka Hon Chu, Jenn Clamen, Richard Elliott, Katrina Pacey, and Tara Santini, with the Canadian HIV/AIDS Legal Network, Pivot Legal Society, and Stella.

Here's the question. Tell me if this is an accurate depiction of Bill C-36:

...any party (e.g., newspaper, website, phone-service, etc.) that is a vehicle for sex workers' advertising their services is guilty of a crime. This makes it virtually impossible for a sex worker to advertise. Even maintaining one's own website leaves the Internet Service Provider (ISP) host exposed to prosecution.

Would you agree with that characterization of what's in Bill C-36?

[Nathalie Levman]

The person who takes out that ad, as long as it relates only to their own sexual services, is immunized from prosecution, which I would note is different from allowing prostitution. In no way does Bill C-36 attempt to allow the practice of prostitution. It merely immunizes from prosecution certain types of behaviour that are frequently engaged in by the persons who are considered to be exploited by the practice of prostitution.

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

Right. I think a lot of people are misunderstanding this. They're saying that this is a total ban on advertising. But as I read it, what's going on today, whereby an individual, if he or she is paying for that ad themselves, if everyone involved is only receiving a material benefit that's commensurate with the services provided on reasonable commercial terms, you can say my name is X. I'm available for a certain price per hour or hourly rate—I can say that—and that's probably not the type of thing that's going to be made illegal by Bill C-36. Would you agree with that?

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

To either Mr. Piragoff or Ms. Levman, on this question of advertising, a number of commentators have got it wrong. I know there are some journalists in the room today who got it wrong in their columns. They made statements like, because this bill makes it illegal to have any form of advertising, they're going to force prostitutes out into the street to advertise their services and, therefore, the bill is unconstitutional.

You pointed out 286.2(4)b), which says that someone can provide their own advertising for their own services and can pay someone on commercial terms to help them with that. That clearly allows the individual to offer their own sexual services. There seems to be some concern about what the advertisement can say. For certain types of advertisements, the prosecutor can apply to the court to have those advertisements removed if they define sexual services in a certain way.

I've taken a look at some of these advertisements, and anyone who has access to the Internet can see them, and typically what they say is rather sad, rather degrading. It says sometimes the person's name, their age, their ethnicity, their hair colour, their eye colour, their bust size, their waist size, their height, and certain other physical characteristics. Then it will give an hourly rate, i.e. so much for half an hour, so much for two hours. If that ad runs, as it does today—you can find it online in many places and in many newspapers across Canada—is that something that would be caught by the provisions of Bill C-36?

[Donald Piragoff]

That's what I'm responding to.

The overall objective of Bill C-36 is to reduce prostitution, discourage entry into prostitution, and to deter participation. It also recognizes that the process of trying to deter prostitution is not an easy avenue, and that in the course of that people who engage in prostitution and selling sexual services need to be protected.

Therefore, Bill C-36 would allow—

[Donald Piragoff]

May I take you back to the objectives that the minister mentioned?

Bill C-36's overall objectives are to reduce the demand—

[Françoise Boivin, NDP, Gatineau, QC]

So what does Bill C-36 do, and which clause answers to that?

[Françoise Boivin, NDP, Gatineau, QC]

Bill C-36 is supposed to respond to the Bedford ruling; hence the sense of urgency on the minister's part. Is that correct? I am just trying to put things into context to make sure we are all on the same page.

In Bedford, the Supreme Court ruled that the provisions I just mentioned jeopardize the health and safety of sex workers because they criminalize what those workers do and create a sense of insecurity and danger since they must carry out their activities in places that are out of sight.

That said, the minister is bound to respond to the Bedford ruling. What process did the department follow in ensuring that response? Did you examine different models, or rather, did you consider only one when you were drafting Bill C-36? Did you consider decriminalizing or legalizing these activities? Did you analyze the Nordic model? How exactly did you arrive at Bill C-36?

[The Chair, Conservative, Mike Wallace]

Thank you, Minister, for joining us on our first panel, introducing Bill C-36 to us, and starting off the conversation that we'll be having all week. We appreciate your time.

I know that your officials are staying, but you are free to go.