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.

Second Reading

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

Mr. Speaker, I am pleased to rise today and speak to Bill C-36, the protection of communities and exploited persons act. As my hon. colleagues know, this bill is the first of its kind in Canada. It is historic. For the first time in Canada's history the buying of sexual services would be illegal. For the first time, women trafficked into prostitution would not be treated as nuisances, but with dignity. For the first time, the Government of Canada would provide robust funding to help women and youth escape prostitution and their traffickers.

I want to begin by addressing one of the key myths that is being spread by the pro-legalization lobby. What Canadians have been told over the past week in the newspapers and other media is that prostitution is a legitimate occupation for women and that it is entirely separate from sex trafficking and exploitation. This is a lie. Prostitution exploits women, youth, and vulnerable populations. It escalates gender inequalities by turning women's bodies into a commodity to be bought, sold, rented, and exploited by men. In short, prostitution provides an avenue for abuse and violence.

Research of prostitution in Canada and abroad reveals that women in prostitution, whether by coercion or by choice, experience alarming levels of violence and abuse. One of the clearest links between prostitution and human trafficking is found in a recent empirical analysis of human trafficking trends in over 150 countries. Researchers at the University of Goettingen's Department of Economics found that, on average, legalizing prostitution increases human trafficking inflows.

The inseparable link between prostitution and sex trafficking has been recognized and adopted across political lines in Canada. In 2007, the report of the Standing Committee on the Status of Women, of which I was the vice-chair, adopted this position. “Turning Outrage into Action” said:

Like the majority of witnesses appearing before us, we came to the conclusion that prostitution is closely linked to trafficking in persons.

That is our own parliamentary report. It goes on to say:

We believe that prostitution is a form of violence and a violation of human rights. The Committee feels that the prostitute’s consent is irrelevant, because you can never consent to sexual exploitation.

This position was supported by the Conservative, Liberal, and NDP members who sat on the committee. The members for London—Fanshawe, York West, and Ahuntsic all sat on the committee with me and will remember the compelling evidence that we heard from survivors.

Let me be clear. Prostitution is the avenue or means for pimps and traffickers to sell women and youth. We cannot separate this fact, and we cannot separate prostitution from sex trafficking. Prostitution is the means for sex traffickers to profit off the exploitation and abuse of others by pimps. If Canada wants to seriously reduce sex trafficking, it must target those who drive prostitution through demand, namely, the johns. It must also target those who profit from and facilitate it, namely, the pimps. That is why Bill C-36 would make buying sex illegal for the first time, and it would significantly strengthen provisions against pimps and traffickers.

It has been appalling to hear from pro-legalization lobbyists over the past weeks that criminalizing the demand would make things more unsafe for women in prostitution and that it would have devastating consequences. This argument is absolutely absurd. One study that interviewed 100 prostitutes in Vancouver found that violence is the norm for women in prostitution. Sexual harassment, verbal abuse, stalking, rape, battering, and torture are the points on a continuum of violence, all of which occur regularly in prostitution.

This violence is perpetrated by johns and pimps. Let us be realistic. When looking to buy sex, a john is not concerned with whether the prostitute is free, underage, or trafficked, nor is he going to ask. In his mind, he wants to buy sex because he has been taught that it is acceptable to buy people to be used at his disposal. That is why we want to target johns.

There has been a paradigm shift that is so important in this country. Canada's approach must recognize that prostitution itself, not just violence, is a form of violence.

For over a century, the violence and the exploitation of women and youth in prostitution have been ignored. The historical approach to prostitution in our great country has never recognized the harms of prostitution. It has focused only on hiding it from public view by incorporating offences based on the nuisance of prostitution in the Criminal Code. Regarded as public nuisances, prostituted individuals were arrested and criminalized at much higher rates than the men creating the demand for commercial sex.

This profoundly misguided approach to prostitution and the treatment of prostitutes changed in this month, on June 4, 2014. This shift in the approach to prostitution is clearly evident in the preamble to Bill C-36, which states:

....the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity...

The preamble also highlights the goals of the new legislation:

...to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children...

The average age of entry into prostitution in this country is between 14 and 16 years of age. These are children.

Second, the preamble says:

...it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution...

Third, the preamble says:

...Parliament wishes to encourage those who engage in prostitution to report incidents of violence and to leave prostitution.

Another indicator of this fundamental paradigm shift is in the location of the new offences in our Criminal Code. Previously, before this bill, all prostitution-related offences were located in part VII of the Criminal Code, under “Disorderly Houses, Gaming and Betting”. The new offences target the purchase of sexual services and target pimps. These offences will now be located in part VIII of the Criminal Code, under “Offences Against the Person and Reputation”. This is a distinct acknowledgement that the act of buying sexual services is an offence against an individual. It is an offence against the most vulnerable individuals in our society, who are enslaved by a violent pimp, poverty, or drug addiction.

It is for this reason that this new approach will be supported by $20 million in new funding, including support for grassroots organizations that help individuals exit prostitution. It is essential that with new legislation we provide support to organizations that help women escape prostitution from all circumstances.

As a nation, we are at a crossroads in this country at this moment, but this is not an experiment in which we can play with the lives and freedoms of future generations. The other option for Canada is to legalize or fully decriminalize prostitution. This approach will also lead Canada into a fundamental paradigm shift to regulate prostitution like any other industry.

It is an appalling shift that would have a severe negative impact on women and youth. I am shocked that such legislation has been advocated by prominent members of the NDP front bench and adopted as party policy. That is also what I am listening to this morning from the Liberals.

Legalization has also been adopted as an official party policy by the Green Party of Canada, to the dismay of many of its members. On a blog post on the official website of the Green Party, Green Party blogger Steve May offers the following critique of this Green Party policy:

I believe it is the wrong policy for our Party at any time, but especially at this time when so many voices, such as Victor Malarek's, are now just starting to be heard about the fiasco which sex trade legalization has caused elsewhere in the world.

We do not have to wait 10 to 20 years to see how legalization of prostitution works out. We only have to look to countries that legalized prostitution 10 to 15 years ago. Let us look at Germany, where prostitution has been fully legalized and regulated as an industry since 2001.

The deputy chairman of the German Police Association stated:

...politicians have shot themselves in the foot by implementing this law. Even though it was well intended, it has only strengthened the criminals.

Some prosecutors, also from Germany, have admitted that it made their work in prosecuting trafficking in human persons more difficult.

Also, in 2013 Germany's leading online paper, Der Spiegel interviewed a retired detective, who stated:

Germany has become a centre for sexual abuse of young women from Eastern Europe, and a playground for organized criminals from all over the world.

German police and women's groups now view legalization as little more than a subsidy program for pimps that makes the market more attractive to human traffickers.

Today there are over 400,000 prostitutes filling brothels located along the borders of that country. Brothels openly advertise “sex with all women as long as you want, as often as you want, any way that you want”, “sex, oral sex, oral sex without a condom, three-ways, group sex, gang bang”. Women are reduced to a sexual commodity to be used by sex buyers and disposed of when they are done. This is the future that the official opposition, along with the Green Party, is proposing for Canadian women and youth.

Let us look at another implication of the policies of the NDP and the Green Party, and now we have heard from the Liberal Party as well. If prostitution were to be legalized and treated as an industry, women would be expected to apply for all job openings before being eligible for EI, so if our daughters have just been laid off, they would be expected to apply at the local brothel before being eligible for EI. That is not the future I want for my daughters and it is not the future that Canadian parents want for their children.

We should also look at the New Zealand model, which has been brought up quite often. It is often cited by the pro-legalization lobby as a perfect example of decriminalization. However, this is far from the reality of the facts.

The National Council of Women in New Zealand stated that “The only winners from the prostitution reform act 2003 are men” and that they are “still seeing girls as young as 13 and 14 years old on the streets selling their bodies”.

The council also said that researchers found that human trafficking in children had increased since 2003, especially in ethnic minority groups. Over 10 years after decriminalization, New Zealand's aboriginal populations were still significantly overrepresented and among the most vulnerable in street prostitution. We know this is also true for Canadian aboriginals, and it would only increase under legalization.

In 2012, the Prime Minister of New Zealand stated that he did not think the act had achieved a reduction in street and under-age prostitution at all.

A shift toward the legalization or normalization of prostitution in Canada is advocated by prominent NDP members and the Green Party. This would be disastrous for women's equality and for our aboriginal populations and other populations. It would turn the clock back years for women's equality.

When Bill C-36 was tabled a week ago in the House, I was stunned to see how many journalists became constitutional legal experts overnight. They seem interested in speaking to the well-paid representatives of the pro-legalization lobby, who decried the bill as the worst thing that could ever happen to women in prostitution. We should not kid ourselves. Huge profits are made by a few people in prostitution, and the adult industry stands to lose a lot of income.

The media largely ignored the front-line agencies that work with women in prostitution, the families of victims, and, most importantly, survivors themselves. I want to share their voices and experience with the House.

Katarina MacLeod, a survivor, says:

As an ex-prostitute who spent 15 years being raped and degraded daily, I had no one to turn to and there were no resources. ... Prostitution damages your mind body and soul. This why I am in total support of Bill C-36 which offers these woman an exit strategy....

This is from the daughter of a prostituted woman:

I was very relieved to hear that Bill C-36 is going to be implemented. ... I am glad our voices are being heard. My mother was a prostitute and I want no women or her children to have to experience that damage. I am in agreement with bill C-36 since it will be getting at the root of this issue, which is the people who purchase sex. As well as providing help for the women to exit this lifestyle, which is very necessary.

This is from the parents of a young woman who was brutally beaten by her pimp and later found murdered. They wrote to the Minister of Justice saying:

...it is our belief and our experience that tells us that if buying sex and selling others for sex was illegal, our daughter would still be alive and would be living a fulfilling and satisfying life. We strongly urge you to use this opportunity to enact new laws that would severely penalize those who buy sex, (the johns) and sell others for sex, (the pimps). Please act to protect the vulnerable and stop the exploitation and violence against young women and girls.

I want to note that front-line agencies and women's groups have raised a concern about the clause that would prohibit the selling of sex around public places where youth can be found, like schools and community centres. Some have said that the intent of this clause is focused on preventing youth from being solicited by johns, and this is a very good thing.

However, front-line agencies—who, I must emphasize, are strongly supportive of everything else in this bill—are concerned about unintended consequences that the clause could have on vulnerable women in prostitution. These are valid concerns, and I hope they will bring these concerns and suggestions forward when Bill C-36 is studied at committee.

It is my hope that Bill C-36 will be supported by members on all sides of the House. Having spoken to many MPs privately, I know support for the approach proposed in Bill C-36 does indeed cross party lines. There are many good people on all sides of this House who are supporting this bill. As parliamentarians, we share a collective desire for Canada to be a leader on human rights in the international community.

Proponents of legalized prostitution claim that it is the only option for a progressive society. I disagree. A truly progressive society encourages the equality and dignity of women, not the prostitution of women. I want to build a Canada that targets predators and pimps, helps vulnerable individuals escape prostitution, and upholds the dignity of women. We can do better for women and youth, and we must.

We have always heard about the Bedford case, and we hear voices across the way saying, “Oh, it is going to have a constitutional challenge.” I must remind those members that it was actually the Supreme Court that sent it to Parliament to build something new. This is what the Supreme Court said: “It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime”.

The Supreme Court of Canada did something very wise. Instead of bringing down the law and saying, “This is the law”, it allowed 12 months for Parliament to reflect. I have to tell the House that thousands of people are watching these speeches today. Thousands of people are listening to individual MPs and what they are saying. Thirty-one thousand responses came. In my office today I have postcards that I have not even talked about. There are 36,000 signatures on petitions and over 50,000 signatures on postcards. This is Canada; I do not know all these people.

I have worked with sex workers and trafficking victims for a very long time. Since this bill was tabled, I have had a myriad of emails. Very many people want to come to the committee and support Bill C-36. They talk about maybe making little tweaks so we could do better.

The country is listening. The country is listening to the fact that here in Canada, members on all sides of the House have to ensure that we target the johns and ensure without a doubt that we provide programs and exit systems for prostitutes and trafficking victims, because behind the scenes the story that does not get out is about the bullying, the terrible threats, the coercion.

I heard from one 16-year-old girl whose boyfriend paid for a lot of things for her and then said, “You owe me $4,000 and you have to service Glen in the next room”. He was a trafficker. She was not going to do it. She said, “You're my boyfriend. I don't have to do that”. He said, “Yes, you do. I know where your sister goes to school. I know where she does her sports activities. We will get her if you don't do this”, and so that 16-year-old did it.

She got out. She is out of the trafficking ring now, and she is speaking out. We hear these voices all across this country.

This Parliament has to be responsible and support Bill C-36.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank the member for her passionate speech. I would not expect any less. Anyone who knows her or has seen her in action during the study of her private member's bill by the Standing Committee on Justice and Human Rights knows how passionate she is about the human trafficking issue.

Now I am seeing her in another light, as we are focusing on prostitution and the action to be taken in the wake of the Bedford decision. I will present my arguments a little later. First, she spoke to us about treating victims with dignity. I will ask her the question that came to mind in English, so that she can answer right away, since she will not have missed a single word of it.

How does clause 15 amount to treating the prostitutes with dignity? I am curious to know her opinion on that matter.

She is a proponent of the Nordic model. Everyone who is a proponent of the Nordic model said that it is needed. We cannot just have the Nordic model, where we criminalize the johns, the buyers, without putting substantial amounts of money into getting the prostitutes out of the business. How can she look at me seriously and say that $20 million for a country like ours, with a problem that big, is enough money? It is laughable, and all the people who would support the bill are in shock about that.

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

Mr. Speaker, it is easy to look at her, because I am very proud. This is not the Nordic model. It is a made-in-Canada model. Speaking of that $20 million, my goodness, look at how big Canada is and how big the United States is, and when the United States first did this, it first put in $10 million. We put in $20 million, right off the bat.

This is a wonderful first step. I am proud of it, and I will look anyone in the eye because the paradigm has shifted. We now look at the survivors, the victims of human trafficking, with dignity and compassion. That is what our government has done. It has showed compassion. We also targeted the johns. They do not get off scot-free anymore

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, there were actually more than a few things in her speech with which we could agree. The Liberal Party is in support of the measures that are contained in the bill that govern human trafficking. If they could be hived off, that would be something we could support. What we do not support are the potential constitutional problems.

The member spent much of her speech talking about the awful situation in countries that have legalized or decriminalized prostitution, such as Germany. There were options available to the government. She spoke passionately against one, legalization or decriminalization. The other option, which the government has chosen, which is really the approach used in Russia, with a few tweaks, is a prohibitionist model. Would she not agree that there were other options in the middle that would be closer to what the Supreme Court of Canada directed and would more properly and more adequately protect those who are vulnerable?

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

Mr. Speaker, I think his question is a little misguided. Actually, this is what the Supreme Court said:

It will be for Parliament, should it choose to do so, to devise a new approach, [a made-in-Canada approach] reflecting different elements of the existing regime.

I have talked about many different countries. We live in the best country in the world. The true north, strong and free, is right here in Canada. What our government has done has the right balance. The right balance is targeting the johns. The right balance is a compassionate view and an acknowledgement of what has happened to the victims and the survivors. The $20 million is a great first step to make it happen.

[Steven Blaney, Conservative, Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, I feel privileged to ask a question of the member for Kildonan—St. Paul, who is a model and a source of inspiration for our government in its fight against human trafficking and for the victims of prostitution.

I want to commend the remarkable work of our colleague. We are very proud to stand with her in this party. She has been a great source of inspiration. She met this morning with people who have been victims of prostitution and have been able to exit. I would like to hear this from the member. Is it important for our government to put exit strategies in place for those victims of prostitution? What is the profile of those individuals? Who is the typical person this bill is aimed at supporting and helping?

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

Mr. Speaker, I thank my colleague, the public safety minister, for this very important question, and I commend all of his great work on this file.

I have met with many trafficked victims. Trafficked victims are vulnerable, beautiful, young women and, these last five years, more and more young boys. The bill would provide them the freedom to be able to leave prostitution or the claws of human traffickers and start new lives. This bill would also make the buying of sex illegal, so the traffickers would not be the big bullies anymore. They would be marginalized.

Canada has made a tremendous statement. It has said that this country will not allow youth—because the youth enter prostitution, on the average, between 14 and 16 years of age—and others to be bought and sold. There is no typical person. It is the predator who looks at the opportunity to draw them in.

[Maria Mourani, Independent, Ahuntsic, QC]

Mr. Speaker, I would like to thank my colleague for her speech and all the work she has been able to do.

I think it would be important to add a few things. I listened to my opposition colleagues, and after analyzing the Bedford decision and the bill from start to finish, I think that it would hold up constitutionally. I will explain why.

The Bedford decision states that in the current legal context, we cannot criminalize the practice of prostitution. The decision also tells legislators to decide on the legal context that will be put in place to deal with prostitution. The government decided to declare prostitution illegal.

In doing so, the government has established its right to criminalize certain players as pimps and johns. In addition, the government gave immunity to prostitutes. In my opinion, this approach is the fairest for Canada. It presents a Canadian model and, on that point, I hand it to them.

However, I disagree with criminalizing prostitutes in a public place. When immunity is adopted, it must be provided across the board, be it in massage parlours or in public places.

I would encourage the government to reconsider its position because criminalizing johns acting in public view is enough. Criminalizing pimps acting in public view is enough.

There is no need to criminalize prostitutes working in public places. This is how we can give these women, the most vulnerable people on the streets, the opportunity to report the people who assault them.

I would like to propose a friendly amendment.

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

Mr. Speaker, I thank my colleague across the way for her support of the bill and her very good comments.

This bill has a really good balance. I was a school teacher for 23 years, and people had to report to the office when they came in. There were pedophiles outside the fence who would lure the older girls. With this bill, we would be protecting the children too. It is not so much the prostitutes; it is the johns. The johns not only solicit the prostitutes or the trafficked women, but if they see attractive girls, they will go after them as well. It the bill has a nice balance. There is no arresting of the prostitutes, but that is something we need to bring to committee and hammer out at committee, where those concerns can come forward.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, this is not exactly a clear-cut debate. The member for Ahuntsic was saying that the government had decreed that prostitution was illegal, but that it was not saying that prostitution is now illegal in Canada. Selling is okay, but buying is not, and under some circumstances, selling is not okay.

With Bill C-36, the government tried to take considerable liberties, but it did not have the courage or the deep conviction to do what the member for Kildonan—St. Paul would like to see. The member took great pains to talk about all aspects related to pimps and vulnerable people, but she did not give very good answers to questions about the major problem with Bill C-36: clause 15. This clause criminalizes the very women, the very victims that the Conservatives go on and on about wanting to protect.

Positions aside, we all take our role seriously. I take my role as the official opposition's justice critic seriously, especially when I have to go before the NDP caucus, where it is not always easy to make recommendations.

The member for Kildonan—St. Paul is quite right in saying that we all have concerns about prostitution and human trafficking. However, it is not always easy to enforce laws that comply with the Constitution and our charter, since this government is extremely secretive.

Instead of sharing its information with us, the government introduced Bill C-36 at first reading, which was a response to a Supreme Court ruling. We are not asking for 15 legal opinions. We only want one opinion of the Supreme Court assuring us that the clauses of Bill C-36 are in compliance. This would make us fell more confident that we had a solid foundation. We are often forced to rely on our own resources, which are not government resources, to try to fulfill our common obligation as members of the House.

We sometimes have to enforce laws and set aside our own personal convictions. The other day, a news report made it clear just how passionate the member for Kildonan—St. Paul is about this issue. I understood her personal and religious convictions, and I respect that. However, in my role as justice critic, I need to examine laws and sometimes set my personal convictions aside. That is part of my role as representative for the people of Gatineau.

The government is so secretive that it is more than happy to use this expeditious process on an issue as important as prostitution, the world's oldest profession. Good luck to anyone who thinks they can get rid of it. We are all working to ensure that one day no one will feel the need to turn to prostitution. We hope that one day people will choose this line of work solely because of their own personal choices or beliefs. We are doing everything we can do achieve that, but no method in the world is perfect.

The government did a quick online consultation but no one has no idea how scientifically valid it is. It did not deny the fact that pretty much anyone was able to say whatever they wanted, whenever they wanted. We do not know where the responses came from; we do not have all of the details.

However, the government is not making that scientific poll public, and it will not release it unless it is forced to do so. I believe that it will not share the information before the end of July, based on how the minister has responded to questions in the House.

We will likely be examining Bill C-36 by then, given that it is subject to a time allocation motion. We will vote on it tomorrow, if not today. The committee will meet in early July, so that leads me to believe that we will have the opportunity to study the bill, but without that information. I find that unfortunate.

As I said, we rely on our resources. This bill is important to me; I want to do the right thing.

When I make a recommendation to my colleagues, I want it to be based not on my convictions and my own impressions, but on a careful analysis of the Bedford decision and on consultations. Like many here in the House, I consulted a lot of people. Many people wanted to talk to me about every aspect of this issue.

I heard from those who are advocating decriminalization and others who want prostitution to be legalized. Groups came to talk to me about the Nordic model. I heard from sex workers. Some of them like the idea of the Nordic model, others do not. I met with nearly every individual and every group that will come in July to tell us what they think about the issue.

I always shared my concerns with everyone I spoke to, and I think that we came to a consensus about the issue of safety.

As for the issue of safety, I believe it is very important to repeat the points made by the Supreme Court of Canada. The government and various Conservative members who spoke before me took a bit of liberty when quoting the Supreme Court. They attributed to the Supreme Court some things that it did not necessarily say, or they omitted, probably because it is to their advantage, certain aspects or certain words in some phrases, which are worth their weight in gold.

When we go out into our constituencies and people talk to us about prostitution, they all refer to the Bedford ruling. What is the Bedford ruling? I think it is important to review the main principles established in the Bedford ruling to determine whether Bill C-36 is in keeping with the ruling and whether it will pass the test included in that ruling. I am reading from the ruling:

...current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C-46, which criminalize various activities related to prostitution, infringe their rights under s. 7 of the Charter...

Despite Bill C-36, section 7 of the charter still exists.

What are the three provisions?

...s. 210 makes it an offence to keep or be in a bawdy-house; s. 212(1)(j) prohibits living on the avails of prostitution; and, s. 213(1)(c) prohibits communicating in public for the purposes of prostitution. They argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing certain safety measures—such as hiring security guards or “screening” potential clients—that could protect them from violence. B, L and S also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s. 2(b) of the Charter, and that none of the provisions are saved under s. 1.

Everyone knows that the charter can be violated. If it is all right in a free and democratic society, it passes the test of section 1. Those were the arguments made by the three plaintiffs in the case.

I will spare you everything that was said in the Supreme Court, but suffice it to say that the three plaintiffs won on every count. Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code were declared incompatible with the charter. The declaration of invalidity was suspended for one year, giving the government time—

[The Acting Speaker, Barry Devolin]

I am sorry, but the time provided for the consideration of government orders has expired. As a result, the hon. member for Gatineau will have 10 minutes remaining after question period.

The House resumed 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.

Protection of Communities and Exploited Persons Act

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, it is always a little irritating for those who are watching us and were here for the first part, but not the second part, or vice versa.

I was explaining that this government has aborted this, so to speak, in the sense that the Conservatives have not mentioned the Bedford decision much. They quoted one line from the decision to justify their Bill C-36.

It is important for hon. members in the House to clearly understand what the Supreme Court of Canada said about the three sections in question, those challenged by the claimants and the respondents/appellants on cross-appeal. According to the Supreme Court:

The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7…The prohibitions all heighten the risks the applicants face in prostitution—itself a legal activity.

Earlier, I heard one of my colleagues in the House say that she was very pleased to hear that prostitution is now illegal. However, Bill C-36 does not go that far. With all due respect to the Conservatives and some other members, the bill before us does not make prostitution illegal.

The Conservatives left a few little loopholes because they know that this bill may also be a problem. It would be interesting to debate the issue of whether prostitution can be made completely illegal in Canada. I am going to do as the courts and judges would do: I am going to reserve judgment because the question is not before the court. The Supreme Court ruling goes on to say:

They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky—but legal—activity from taking steps to protect themselves from the risks. That causal connection is not negated by the actions of third-party johns and pimps, or prostitutes’ so-called choice to engage in prostitution. While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

...compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness. That is, they do not look to how well the law achieves its object, or to how much of the population the law benefits [or harms]. The analysis is qualitative, not quantitative. The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad [that is the heart of the matter]; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7. [The test is stringent.]

...the negative impact of the bawdy-house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards.

I was a little worried by some remarks I heard on panels I participated in. The Parliamentary Secretary to the Minister of Justice in particular suggested that, at any rate, a brothel, even though it is kept by people who are consenting, is not a place we want to see, that it is a nuisance and a form of exploitation. That is not quite what the Supreme Court tells us.

It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad. Third, the purpose of the communicating prohibition...is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

I have often heard that from sex workers. They told us how important it is for them to communicate. As strange as it may seem for those who are not part of that industry and have never even gone anywhere near it, it is important for those women to be able to have a kind of reference system. In some places, they talk to each other in order to make sure that they are not putting their lives in danger.

The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships. The impugned laws are not saved by s. 1.

Allow me to quote the Supreme Court's most important conclusion. The government always likes to read this sentence and this sentence only: “It will be for Parliament, should it choose to do so, to devise a new approach…”. Sometimes, it says the rest of the sentence very quickly: “…reflecting different elements of the existing regime”.

In fact, however, the paragraph reads as follows:

Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as…

This is the most fundamental point. The Supreme Court of Canada has not told the government that the Minister of Justice can do whatever he likes and that as long as he comes up with something different from what is in the current Criminal Code, it will be fine, that is his perfect right. That is not what the Supreme Court said. It says that it is not precluding the government from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.

As a result, since setting limits on prostitution is a complex and delicate subject, it is up to Parliament to act, should it choose to do so. That is the door that the Supreme Court has left wide open for Parliament. The Criminal Code already includes provisions prohibiting the exploitation of minors. We are going to hear a lot of talk about that from the Conservative benches, since they will want to prohibit that. However, it is already in the Criminal Code. Given that human trafficking is prohibited by the Criminal Code and that it has been recently improved with the bill that my colleague from Kildonan—St. Paul introduced, we can refine it all.

The Supreme Court did not necessarily require the government to introduce something in the coming year. However, if it did not do anything, the three sections deemed unconstitutional would die a natural death because they put the health and safety of sex workers in danger.

What did the government do? It took a hammer and started hammering at random, saying that it would make a few changes so that everyone would think it was solving the problem with prostitution. I would have liked to at least feel that the Conservatives took this seriously when the minister talked about $20 million during his press conference.

I remember the discussions I have had with people from the Women's Coalition for the Abolition of Prostitution. They told me how important it was. I want to quote Kim Pate, who is a member of the coalition:

Decriminalizing the women and holding accountable the men who buy and sell women and girls means nothing if women's economic, racial and social inequality is not addressed.

The Conservatives are still criminalizing prostitutes and investing a measly $20 million. It is ridiculous.

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

Mr. Speaker, that is the most creative speech I have heard on the subject for a very long time. I realize that in 2004 the member opposite was a Liberal and then decided to be an NDP candidate in 2006. She does not keep up with the NDP policy. For instance, the NDP premier and the NDP justice minister in Manitoba have highly endorsed everything. The justice minister asked for criminalizing the purchasers of sex, continuing to criminalize the activities of those who prey upon the victims, and providing meaningful support to the victims. That is everything that we have in Bill C-36.

When I listened to the speech, it brought back to memory Mrs. Emerson from Gatineau. She trafficked three girls and got seven years for doing that. There are a lot of people in the member's area who strongly support Bill C-36. Today, there are a lot of people listening. What about the members of her caucus? I know some of the members of her caucus fully support this bill. Could you talk to me about the challenges that you have in your caucus--

[The Speaker, Andrew Scheer]

Order, please. I do have to remind the hon. member for Kildonan—St. Paul not to use the second person, but the third person, and to go through the Chair.

The hon. member for Gatineau.