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

[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 Conservative's 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.

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.

[The Chair, Conservative, Mike Wallace]

All right, there you go.

Committee, we will go vote now in the House.

There is important committee business we need to discuss after the vote in the House. If you could come back right after the vote, we'll have a short in camera meeting about future committee business. We need to discuss what we're going to do with Bill C-36.

Thank you very much. We'll suspend until after the vote.

[Proceedings continue in camera]

Bill C-36—Time Allocation Motion

[Jeff Watson, Conservative, Parliamentary Secretary to the Minister of Transport]

Mr. Speaker, the matter immediately before the House is the use of time allocation, which I point out is routinely used by Liberal majority governments in this country, but also, as I understand it, is used writ large in the mother Parliament back in the U.K.

As the minister has rightly pointed out earlier, this is an efficiency tool in terms of ensuring that the House, in a timely fashion, not only considers issues but makes decisions on them, and it also ensures that these matters get to committee in a timely fashion, so that the detailed study can occur. Not only is debate in the House important, but the discussion and input of Canadians in the broader civil society is important as we deal with an issue that has a lot of diverse opinions among the Canadian public.

I wonder if the minister could comment on the participation of Canadians in terms of consultation before the drafting of this particular bill. I wonder if he could comment further on what he was hearing in terms of specifics from Canadians and stakeholders and how that was incorporated into this particular bill, Bill C-36, that is before the House.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Speaker, just a few moments ago, I heard the minister say that the use of time allocation in debates is not something new, that it is a parliamentary tradition and part of the process. However, what is new is that it has been used 72 times in a very short period of time. This even breaks the Liberals' record. It seems to me that the government wants to be in the Guinness World Records. However, this is a record to be ashamed of, not proud of.

Let me read the title of the bill we are dealing with here. It is 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. I think the title alone shows the legal and technical complexity of the issue. This legislation can have life-or-death consequences for some people. Why are we being muzzled again when we are debating this bill? Why does the government not want to give us the time to do a good job? When will the government stop muzzling Parliament itself?

[Peter MacKay, Conservative, Central Nova, NS]

Mr. Speaker, as a member of the majority government, I am going to suggest to my hon. friend that the use of time allocation is not some sort of new and innovative approach that has been taken by this government. I have been around here for some time, 17 years, much like the Chair, and I have seen this is very often used to keep the House moving and to keep legislation moving through the normal process.

In the case of the bill before the House, Bill C-36, the subject of this debate, the Supreme Court of Canada has specified a one-year period in which this legislation must respond to the gap in the Criminal Code that was created by the Bedford decision.

Therefore, there are expedited reasons to move this legislation forward, to get it through the second reading stage of the process and into committee so that we may have the ability, the somewhat unusual ability, for the justice committee to examine this legislation in greater detail and to hear from witnesses. We are looking at doing a similar process, a simultaneous process with the Senate, so that we can meet the deadline.

When we return in the fall, that good work will be done by members of the justice committee, members of the House from all sides, to provide rigorous examination of the legislation, to provide feedback, to improve upon the bill, to bring it back to Parliament for debate in the fall, and to see that it then finishes the regular process of proceeding through this chamber and through the Senate and passes into law well in advance of that December deadline set by the Supreme Court of Canada.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, what a surprise. This is, what, the 72nd time? It is tempting to repeat the arguments we have been making since the first time the government moved a time allocation motion. This time, the motion is on Bill C-36, which was meant to be a response to the Supreme Court's ruling on certain sections of the Criminal Code.

However, I do not get the impression that this motion is meant to silence the opposition. It seems as though it is meant to hide the debate from the Conservatives' own base. That is what I would like to ask the minister.

Yesterday I read a rather interesting report after the Conservative caucus meeting. It appeared to be saying that the government's strategy was not clear. The Conservatives themselves are divided. Some support decriminalization, some support outright prohibition, and some are not happy with the government's decision because what it is doing is not clear. The government seems to want to hide things and speed up the debate, keep it under the radar and get the committee work done in the summer, when everyone is gone.

This is my question for the minister. Was this time allocation motion moved not to prevent the opposition from speaking, but to prevent his own colleagues from speaking to this bill?

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

moved:

That, in relation to 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, not more than five further hours shall be allotted to the consideration at second reading stage of the Bill; and

That, at the expiry of the five hours provided for the consideration at second reading stage of the said Bill, any proceedings before the House shall be interrupted, if required, for the purpose of this Order and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.

Bill C-36—Notice of Time Allocation

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I do regret to advise that an agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to the second reading stage of 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.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.

Protection of Communities and Exploited Persons Act

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank the minister for his speech even though I feel that he took quite a bit of liberty with the Supreme Court decision. I am not sure his quotes from the court's decision were altogether complete.

This is a very emotional issue for many people. Some have based their careers on this issue, and many others are much less aware and have not necessarily had the opportunity to do the consultations the minister has done. We have repeatedly asked him to refer this bill to the Supreme Court to be sure no mistakes have been made. I gather from the minister's response to journalists—which was much clearer than his response here in the House—that the answer was no and that he had no intention of doing so.

That being said, if he is not prepared to send his bill to the Supreme Court, seeing as this bill has been the subject of much criticism from coast to coast with the exception of a few Conservative voices, is he prepared to share the legal opinions? As the Minister of Justice and Attorney General of Canada, he is obligated to ensure that bills before the House comply with the Constitution and the Charter of Rights and Freedoms. If he has those legal opinions, including the survey his department commissioned, can he forward them to us before the committee begins its study? That will give us a chance to consult them before our study.

I would also like him to define the expression “sexual services” because it is used frequently throughout the bill. What does the government mean by “sexual services” in Bill C-36?

[Peter MacKay, Conservative, Minister of Justice and Attorney General of Canada]

moved 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.

Mr. Speaker, I am pleased to commence the second reading debate on Bill C-36, the protection of communities and exploited persons act, a comprehensive and compassionate Canadian response to the Supreme Court decision in Bedford.

It may come as a surprise to some, but to put this in context, in current Canadian law, neither the sale nor the purchase of sexual services is illegal. That would be known to many in the chamber who are police officers or former police officers, many of whom are joining us for this debate.

It is well known to the member for Kildonan—St. Paul, who has dedicated much of her life to helping those who find themselves in prostitution, and I want to express appreciation for that work.

The existing criminal offences prohibit activities related to prostitution. This bill is in direct response to the Supreme Court of Canada's Bedford decision, on December 20, 2013, which found three of the prostitution-related offences unconstitutional, based upon the court's view that the offences prevent those who sell sexual services from taking measures to protect themselves when engaged in prostitution, which I think can fairly be described as a risky, but previously legal, activity.

That would change, as a result of the bill, in terms of its legality. It was a key consideration for the government's response.

The Supreme Court was clear. Its decision does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.

Significantly, the court recognized not only the complexity of the issue but also the ability of the government to legislate. I am quoting from the decision, at paragraph 165, which states:

The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting the different elements of the existing regime.

Bill C-36 would do just that. It is a brand new approach, one that would transform Canada's criminal provisions of prostitution laws. It is a new approach based upon the prevailing thinking in modern industrialized countries.

Bill C-36 proposes law reform that would signal a significant shift in prostitution-related criminal law policy from treatment of prostitution as a nuisance toward treatment of prostitution for what it is: a form of exploitation.

This is not a life from a Hollywood movie, portrayed in movies like Pretty Woman. It is an inherently dangerous pursuit, often driven by factors such as violence, addiction, poverty, intimidation, and mental illness. These are very often the most marginalized and victimized of our citizens, vulnerable Canadians, often aboriginal, new Canadians, brought into a life of prostitution at a very early age and most often through no fault of their own.

The bill is about protecting vulnerable Canadians, as encapsulated in the title.

Let us be clear: we do not believe that other approaches, such as decriminalization or legalization, could make prostitution a safe activity.

The evidence, including the evidence submitted to the courts in the Bedford case, shows that prostitution is extremely dangerous no matter where it takes place. It also proves that decriminalization and legalization lead to increased human trafficking for the purpose of sexual exploitation. Failing to ensure the consistent application of criminal law to the wrongful acts of prostitution is simply not an option.

The Supreme Court gave Parliament one year to respond to its findings in Bedford. We have introduced Bill C-36 well ahead of time to ensure that the court's ruling does not result in decriminalization, and to have even greater opportunity to examine legislation, and to ensure that even greater harm to vulnerable persons, particularly women and children, does not follow.

For the first time in Canadian criminal law, the bill would criminalize the purchase of sexual services; in other words, it would now make prostitution illegal.

The impact of the new prohibitions would be borne predominantly by those who purchase sex and persons who exploit others through prostitution. The bill is intended to reduce the demands for prostitution, which disproportionately impact on society's most marginalized and vulnerable.

The bill would also modernize existing procuring offences, to ensure that those who exploit others through prostitution are held to account for capitalizing on the demand created by purchasers.

These reforms are informed by new, contemporary legislative measures outlined in the bill's preamble, which include protecting communities and those who are exploited through prostitution from prostitution's implicit harms, which include sexual exploitation, the risk of violence and intimidation, exposure of children to the sale of sex as a commodity, and related criminal activities such as human trafficking and drug-related and organized crime.

Also in the preamble is recognizing the social harm caused by prostitution's normalization of sexual activity as a commodity to be bought and sold; and protecting the human dignity and equality of all by discouraging prostitution, which we know disproportionately impacts women and children.

Bill C-36 proposes two entirely new offences, which I would submit differentiates it from other models as a distinctly Canadian approach: purchasing sexual services and advertising the sale of sexual services. Both are hybrid offences with maximum penalties of 5 years on indictment and 18 months on summary conviction. The purchasing offence would also carry mandatory minimum fines.

The purchasing offence targets the demand for prostitution, thereby making prostitution an illegal activity, and to complement this offence, the advertising offence targets the promotion of this exploitative activity, thereby furthering the legislation's overall objective of reducing the demand for sexual services.

An additional objective is to reduce the likelihood of third parties facilitating exploitation through prostitution for their gain, and the key and operative word here is “exploitation”. Consistent with the bill's treatment of persons who sell their own sexual services as victims, the persons would be immunized from prosecution if they advertised their own sexual services.

Never before have these activities been criminalized in Canadian law, and the bill would also criminalize receiving a financial or material benefit, knowing that it was obtained by or derived from the prostitution of others. This offence replaces the existing offence of living on the avails of prostitution, struck down by the Supreme Court.

The proposed approach has been carefully tailored to address the specific vulnerability of those involved. The material benefit offence strikes a careful balance and ensures that those who sell their own sexual services have the same ability to interact with others as anyone else, while also recognizing the dangers, harms, and risks involved in allowing the development of economic interests in others' prostitution.

Legislated exceptions clarify that the offence does not apply to non-exploitative relationships. For example, those who are in legitimate living arrangements with persons who sell their own sexual services, such as children, spouses, or roommates, would not be caught under these sections. Neither would those who offered goods or services to the general public, such as accountants, taxi drivers, or security companies. Moreover, the material benefit offence would not apply to those who offered goods or services on an informal basis, which could include such things as babysitting or even protective services.

To be clear, Bill C-36 also recognizes the risks associated with allowing persons to benefit from the profits of others' prostitution. A person who initially poses as a benevolent helper may become unscrupulous in order to maximize profits that are contingent on the provision of sexual services for others. We know this happens. For that reason, the bill stipulates that none of the exceptions to the material benefit apply where the person who received the benefit engaged in coercive measures, such as using violence or intimidation, abusing a position of trust or power, or engaging in conduct that amounts to procuring or receiving a benefit in the context of a brothel.

This approach affords some room for sellers of their own sexual services to take steps to protect themselves in response to the concerns raised by Supreme Court of Canada in Bedford, while also ensuring that the criminal law holds to account the pimps or anyone else in an exploitative relationship, working through prostitution.

The bill also proposes to modernize existing procuring and child prostitution offences. The proposed procuring offence reformulates existing offences with respect to procurement—paragraphs 212(1)(a) to (i)—to ensure consistency with the new material benefit and purchasing offences.

Procuring, as we know, is a serious offence that involves inciting or causing others to sell sexual services. That is why this legislation proposes to increase the maximum penalty to 14 years from 10 years imprisonment.

Bill C-36 modernizes and reformulates child prostitution offences as aggravating forms of offences related to the purchase of sexual services, receiving a material benefit and procuring. In addition, it increases the applicable sentences. The maximum penalty for the offence prohibiting the purchase of sexual services from children would increase to 10 years imprisonment from the current five, and the mandatory minimum would increase from six months to one year for repeat offenders.

Offences related to receiving a material benefit and procuring involving children would have a maximum sentence of 40 years and a mandatory minimum of two and five years, respectively.

Moreover, through these amendments, the government would send a clear message to those who exploit vulnerable persons and, in particular, inflict trauma and revictimization on women and children.

All of the offences that I have just described comprehensively address the exploitative conduct engaged in by those who create the demand for sexual services and those who capitalize on that demand.

Bill C-36 does not stop there. It recognizes and addresses the harms that prostitution also causes to communities. It would achieve this objective in two ways. It would impose higher mandatory minimum fines for purchasers if they commit the purchasing offence in public places that are near schools, parks, religious institutions, or places where children can reasonably be expected to be present. This is the same description found in the Criminal Code in other sections. There is an already well subscribed definition of a public place. This approach would also provide an additional measure of protection to those who are vulnerable in our communities.

The bill would also comprehensively protect children from exposure to the sale of sex as a commodity. In that regard, it proposes a new summary offence that would criminalize communicating for the purpose of selling sexual services in public places where children can reasonably be expected to be present.

The bill recognizes the vulnerability of those who sell their own sexual services by immunizing them from prosecution for any part they may play in the purchasing, material benefit, procuring, or advertising offences vis-à-vis their own sexual services.

As I mentioned, children, on balance when doing the calculation, can also be considered vulnerable, so the bill seeks to strike that careful balance, part of that being the provision of a tool that would allow law enforcement to ensure that children are not harmed through exposure to prostitution. Parents in particular will be relieved to hear this.

The bill also proposes related amendments that would complement its approach to prostitution. First, with the definition of a weapon, this part of the Criminal Code has been somewhat overlooked in the public debate on this legislation. This section is intended to ensure that offenders who possess weapons of restraint, such as handcuffs, rope, or duct tape, with the intent to commit an offence, or use such weapons to commit a violent offence, are held accountable. I suspect that much of the focus on this stems from the horrific circumstances that we know occurred in the Picton case in British Columbia.

This amendment has implications for three offences: possession of weapon for dangerous purpose, section 88; assault with a weapon, section 290; and sexual assault with a weapon, section 291. This approach will better protect all of the victims of these offences, including those suffering from extreme exploitation as prostitutes, who are particularly vulnerable to sexual assault and assault.

Bill C-36 would also ensure consistency of penalties between human trafficking offences and the proposed prostitution ones. We know that prostitution and human trafficking are related criminal activities. It follows that the penalties for both should reflect the severity of that conduct. That is why this bill proposes to increase the maximum penalties and impose mandatory minimum penalties for receiving a material benefit from child trafficking and withholding documents for the purposes of committing child trafficking. The maximum penalty for both child-specific trafficking and prostitution material benefit would be 14 years of imprisonment, with a mandatory minimum penalty of two years. The maximum penalty for withholding documents for the purpose of committing child trafficking would increase to 10 years, with a mandatory minimum sentence of a year.

The bill would also amend the offence prohibiting trafficking in persons to impose mandatory minimum penalties when the victim is an adult. The mandatory minimum penalty would be five years if the offences involved kidnapping, aggravated assault, sexual assault, or caused death, and four years in all other cases. The offence prohibiting trafficking of children already includes mandatory minimum penalties.

These are reforms proposed by this bill, but why are they necessary? In particular, what do we know about prostitution in the country today?

Although the incidence of prostitution is impossible to truly ascertain, given its clandestine nature, we know from research that prostitution occurs in all parts of the country, most often on the street but also through escort agencies, in massage parlours, in private apartments and houses, and in strip clubs, hotels, and restaurants. It is facilitated through the Internet and print media advertising.

We know that 75% to 80% of those involved in prostitution are women. As I mentioned earlier, many come from the most marginalized groups of society and share common vulnerabilities, such as childhood abuse, neglect, poverty, and addictions, and they lack the education and skills necessary to exit prostitution.

Research indicates as well that a large number of those who provide sexual services entered prostitution when they were mere children, and that they experienced sexual abuse prior to their first prostitution experience. Furthermore, aboriginal women and girls are disproportionately represented among those who are exploited through prostitution.

There is simply no getting away from the fact that prostitution is an extremely dangerous activity. Studies before the courts in the Bedford case have shown that prostitution is multi-traumatic. It regularly involves physical violence, sexual violence, forceable confinement, and drugs, and involvement in prostitution often causes post-traumatic stress disorder, which can result in permanent harm.

Communities are also negatively affected by all forms of prostitution. Used condoms and drug paraphernalia may be discarded in public places, such as parks, playgrounds, or school grounds. Other community harms may include noise, impeding traffic, children witnessing acts of prostitution, harassment of residents, unsanitary acts, and unwelcome solicitation of children by johns.

Prostitution also poses other risks because of its link with human trafficking, as mentioned, which is another form of sexual exploitation, as well as its link to drug-related crimes and organized criminal groups that thrive in that environment. Two recent international studies indicate that there is cause for concern in these areas. These studies show that jurisdictions that have decriminalized prostitution have often experienced increases in human trafficking and further violence, which is unacceptable.

The risks and harms associated with prostitution are readily acknowledged. However, the issue of which legal framework should govern adult prostitution remains highly contentious. The results of the government's extensive public consultations indicate and demonstrate that Canadians are still divided on this issue, but overall the results show that the majority of Canadians consulted prefer a criminal law response, one that involves the criminalization of purchasers of sexual services and of those who exploit prostitution for their own gain.

In addition to the legally oriented response through this legislation, we have also, in a compassionate and Canadian way, brought forward additional resources to partner with provinces and organizations throughout the country that provide front-line services to help prostitutes to exit from prostitution by giving them choices and alternatives that would allow them to leave this exploitative field and find a better life.

Noting the time, I urge all members to support this important piece of legislation. There will be ample time to examine it at committee. There will be an opportunity to hear from Canadians further on this important matter. The objective here is clearly to protect the vulnerable, to protect our communities, and to move, for the sake of all those involved, to a better place and a better life.

Justice

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

Mr. Speaker, Bill C-36, like all legislation, is reviewed by Department of Justice officials in terms of its constitutionality. The bill certainly does meet the requirements of the Constitution and the Charter of Rights and Freedoms. Members will have an opportunity to debate the bill in the House later this week and later at the justice committee. It will become apparent to them that the bill addresses all of the issues raised by the Supreme Court and provides for those involved in sex work to do it safely.

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

Mr. Speaker, as the member knows, Bill C-36 is our government's response to the Bedford decision. In our view, it meets every test of the Supreme Court decision and will be upheld by the Supreme Court in accordance with Bedford. It is the role of the government to propose legislation, and it is the job of all parliamentarians to debate that legislation. We are looking forward to the debate here in Parliament later this week.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, it is the minister's job to make sure that the laws that he files in the House are charter compliant and constitutional.

The Supreme Court was clear in its unanimous ruling. The prostitution laws are unconstitutional because they endanger the safety and lives of those who are in this line of work.

The government's response must respect the Charter and the court's decision. Many experts have raised serious concerns about the constitutionality of Bill C-36.

If the minister thinks that his law will stand up in court, why does he not make his legal opinions public?

Instruction to the Standing Committee on the Status of Women (violence against women)

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, women have the right to full equality and women have the right to live their lives free of violence. These two principles are inseparable because with the threat of violence there can be no substantive equality. The government can and must do more to support women's equality, especially when it comes to addressing violence against women. It is everyone's responsibility to reduce violence, but it is the particular responsibility of parliamentarians to take substantive action in this direction.

Motion No. 504 is well intentioned, however, when one realizes how widespread violence against women is in Canada, we feel it does not go far enough. Half of all women in Canada have experienced at least one incident of physical or sexual violence since the age of 16 and this number has remained stagnant over the past 40 years.

In first nations, the statistics are worse. Women are much more vulnerable with homicide rates seven times higher than that of non-aboriginal Canadian women. In the recent reports by the RCMP, there are nearly 1,200 cases of missing or murdered indigenous women in Canada.

Both Amnesty International and the United Nations have called upon the Canadian government to take action on this issue without success. Women in countless organizations across Canada have called upon the government to take action.

The Conservative government has claimed to have taken real action to combat violence against women, yet it has refused to develop a national action plan. In fact, in 2006, the government changed the Status of Women Canada women's program, making it impossible for Status of Women Canada to fund the work of organizations when it relates to advocacy, lobbying, or general research on women's rights issues. The UN Committee on the Elimination of Discrimination Against Women has expressed concern on the impact of changes to the Status of Women agency, in particular on access to services by aboriginal and rural women.

The minister who changed the women's program mandate at the time, Bev Oda, said, “"We don't need to separate the men from the women in this country. This government as a whole is responsible to develop policies and programs that address the needs of both men and women."

First and foremost, the government must recognize that gender inequality is the root cause of violence against women. We know that women are 11 times more likely than men to be a target of sexual offences and three times more likely to experience criminal harassment. With these facts in mind and with the prevalence of violence against women stagnant in Canada while all other violent crime rates drop, does the government still believe that we do not need to work toward meeting the needs of women in this country?

As parliamentarians, we have the ability to enact a national action plan that would address the severity of violence against women, yet the government has taken no action in this direction despite the recommendations numerous organizations have made. In the absence of a national action plan, responses to violence against women, including education and prevention programs, are fragmented and inconsistent.

In order to fully address the root causes of violence against women, I urge the government to immediately pick up Motion No. 444 and consult with civil society in order to create a multi-sector national action plan. With Canada in the international spotlight, we must respond. We call upon the government to immediately commit to funding legal aid, shelters, transitions houses, social housing, health services, advocacy, and research in order to prevent and treat violence against women for all women in Canada.

In regard to Motion No. 504, I urge the government to make the necessary provisions that would allow for the issues associated with violence against all women to be addressed. First, we ask the study to include the examination of programs as well as policy. Second, we ask that the study look at best practices in Canada and abroad. Other countries like Canada, such as Australia, have taken strident steps toward a national action plan and their methods are working. We should take this opportunity to learn from them.

There is near consensus among Canadian civil society and violence against women service providers that a national action plan is urgently needed. Indeed, the Canadian Network of Women's Shelters and Transition Houses is spearheading meetings to discuss the creation of such an action plan. However, civil society, women's advocates, and service providers cannot accomplish this task alone. The federal government must be a leader at the table. It is incumbent upon the House to listen to what experts and front-line workers are telling us. Right now they are saying the same thing: we need a national action plan.

The Canadian Network of Women’s Shelters and Transition Houses wrote in its report:

It is clear that in the absence of a National Action Plan, responses to VAW in Canada are largely fragmented, often inaccessible, and can work to impede rather than improve women’s safety....A strategic and sustainable step toward meaningfully addressing VAW in Canada is to establish a multi-sectoral NAP that adheres to the guidelines and principles set out by the UN Handbook for Legislation on Violence Against Women...and the UN Handbook for National Action Plans on Violence Against Women...

The fact is we can study component pieces of the solution to violence against women and it will only be a drop in the bucket of the work that must be done, right now, to end violence in women's lives. Education and prevention are critical, but we must move beyond that.

A national action plan would be coordinated with governments across the country. It would set out a framework to be followed over the course of many years. It would uphold Canada's commitments to the Convention on the Elimination of All Forms of Discrimination against Women as well as the Beijing Declaration and Platform for Action. It would be based in evidence, new research and extensive consultation with experts and communities. The plan would include evaluation and accountability measures for government and civil society alike.

With all of this working together, it will have a real effect on women’s lives and the lives of all of those who depend on the well-being of women in our society.

We have international examples of national action plans. Belize, Liberia, Peru, France, Australia, Spain and many more have comprehensive and coherent programs of activity.

I have spent the past year travelling to different parts of the country in order to hold consultation sessions with the people in Canada who are at the front lines of fighting violence against women. I sat down with the directors of emergency shelters, transition houses and drop-in centres. I listened to lawyers, advocates and social workers. I heard the concerns of sexual assault service providers and rape crisis line workers. I met with women who were survivors of violence themselves. Across the board we heard the same thing: the government does not provide enough funding or support to even come close to ending violence against women.

I cannot name or quote these individuals, for fear that the government may slash what little funding their organizations are receiving, but I will paraphrase some of the messages we heard.

Service providers are subsidizing the government with unpaid hours of labour. Two people work for one person's salary in order to provide desperate women with the bare minimum of what they need to exit violence. One of the organizations said, “We tell women that it is possible to leave a violent relationship and start her life again, but the reality is that without sufficient housing, legal aid and welfare that simply is not true”.

I heard from others that, “Repeated cuts to this sector have devastated our capacity to work together as a community to provide the best services”, and “We cannot advocate for women to the government when we are barely able to keep our doors open”.

We heard again and again about how frustrating and insufficient the Status of Women Agency was since the Prime Minister made those substantive changes to its granting system. Short term, two year grants ensure that best practices will necessarily end with no hope of renewal. It means that service providers are in constant grant-writing mode instead of working to help women. The fact that organizations are explicitly forbidden from applying for advocacy and research means that all their work is short-sighted and never allowed to address the major systemic barriers.

Perhaps most telling is that for a time, the government took the word “equality” out of the Status of Women's mandate. The absence of that one word speaks volumes about the regressive attitude the government has taken toward women.

I also want to point to the most recent bill, Bill C-36, which aims to save prostitutes. We in the NDP have expressed our high concern that this new legislation places sex workers in danger and we believe it does not uphold women's charter rights.

For a government that constantly claims to be standing up for victims, it refuses to give vulnerable people what they need to achieve equality. Therein lies the fundamental difference between the NDP and the Conservative approach to women. The government paints women as victims who are in need of protection, but we know women must be empowered to claim their full rights. Women in Canada deserve better. We deserve commitment and leadership from the government to end violence against women.

In conclusion, I move, seconded by the member for LaSalle—Émard:

That the motion be amended by replacing the words “education and social programs” with the words “education programs, social programs, and policies”.