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.

[The Chair, Liberal, Randeep Sarai]

I'm going to call this meeting to order. Welcome to meeting number three of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the motion adopted on Tuesday, February 8, the committee is meeting to review the Protection of Communities and Exploited Persons Act.

Today’s meeting is taking place in a hybrid format, pursuant to the House order of November 25, 2021. Members are attending in person in the room, and remotely using the Zoom application. The proceedings will be made available via the House of Commons website.

With regard to a speaking list, the committee clerk and I will do our best to maintain a consolidated order of speaking for all members, whether they are participating virtually or in person.

There's one witness still trying to connect, but otherwise, I would like to welcome our witnesses.

I will be using cue cards, so if you are in the last 30 seconds of your remarks, and you see it, I will give you a warning without interrupting you. When you are out of time—I do not want to be rude—I will put up the out-of-time card.

I would like to call Cathy Peters as our first witness. If you could speak for five minutes, we'll then have the next witnesses speak for five minutes each as well, and then we'll have a round of questions.

Ms. Peters, please go ahead.

[Carolyn Botting]

I agree that they are similar, but they're not the same. I had a train of thought and I lost it.

Sometimes they go hand in hand.

I'll just reiterate my biggest concern. Where is the protectionary law? If Bill C-36 is a protectionary law, then human trafficking is the trafficking side, and they are not always one and the same thing.

[Larry Brock, Conservative, Brantford—Brant, ON]

That is consistent with my interpretation that each jurisdiction has a different focus in terms of how it applies the law. It should come as no surprise that provincial objectives and provincial statistics probably differ as well.

Taking that one step further again and contrasting Ms. Wesley's statement in her testimony so far, she also says it would be an error to conflate Bill C-36 with human trafficking.

I think, to an extent, you probably would agree with me that it's not really conflating the two issues. The two issues are really hand in hand, at least from a prosecutorial standpoint. I've seen numerous instances when, once victims of human trafficking had gone through that ordeal, they ultimately decided to continue selling sexual services on their own after they freed themselves from their abuser.

[Carolyn Botting]

I'm certainly no expert on the statistics, and I don't have any data to support what you have said. I also love Ms. Wesley's passion for the work she does.

My understanding of Bill C-36 is that sex trade workers are not charged under this law. At least in my city, we do not target the sex trade the way Ms. Wesley suggests, and we don't target the sex trade workers. We have not for years. We are targeting the abusers who are involved with the most vulnerable. Very often, that's youth.

My question, if I may ask, would be how does Ms. Wesley suggest we protect the youth who are involved if we don't have laws against those who procure them and they haven't met the threshold of human trafficking?

The other thing that we do in our city is work with the victims or with the sex trade workers, if they want to work with us, to provide them safe resources. We do not force them to testify the way we historically did many years ago.

I began working in this field in around 2003, and I was working on the prosecution side—I believe my first was 2005 or 2007. We do not have the practice of forcing those involved in the sex trade industry to, one, co-operate with us or, two, testify.

My biggest concern with repealing this law completely would be how we protect people when they don't fall within the laws of human trafficking, sexual assault or assault, but are simply being recruited and there's no law to protect from that.

If a girl or boy came to their school resource officer and said, “Hey, this girl in my group home or school is really attempting to get me involved and I need help,” where's the law that applies to that situation, and how do we prevent it? That's how I would respond to that question.

[Larry Brock, Conservative, Brantford—Brant, ON]

Ms. Wesley, among other things, pitches and makes the strong argument that Bill C-36 and the legislation that was adopted is more harmful to sex workers than the stated objectives. I have information before me from the Library of Parliament that would suggest that there might be a disconnect in that particular statement, and I'd like to hear your thoughts on that.

Statistics Canada, in 2021, published that crimes related to the sex trade found a decrease in reported injuries and homicides of sex trade workers after Bill C-36.

Would you agree, with your background in policing, that the changes made by that bill have made individuals who sell sex for money safer? Please explain why or why not.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

I want to thank the witnesses for joining us today.

Earlier, I tried to get a sense of the situation from the Department of Justice officials. However, it was a bit difficult for them to express a personal opinion, which we understand. I suppose that it will be a little easier to get that perspective from you, since you have been on the ground since Bill C‑36 was passed.

Have the three main goals of the legislation been met? If so, was there any negative impact?

Ms. Wesley, you spoke about the negative impact on women and girls in the profession, for example. Could you elaborate on that impact?

[Nathalie Levman]

As I said, the case law comes to very different conclusions. We have conflicting results, and I've explained that already, but maybe I can note, as you'll likely recall, that during the study of Bill C-36 some parliamentarians did express their view that Parliament isn't precluded from imposing limits on where and how the sex trade may be conducted. That's from the Bedford case itself, in particular to protect the vulnerable and society from the harms they view as being associated with the sex trade.

These parliamentarians noted that the premise of any charter assessment has changed, because Bill C-36's objectives are significantly different from those of the previous regime. The bill would make the sex trade illegal. Bedford was dealing with a regime in which the transaction for sexual services was legal. It was a legal activity, as the Supreme Court clarified.

Parliamentarians—those in favour of the bill, of course—also noted that the bill attempts to balance the interests of those who choose sex work and are in a position to take steps to protect themselves with the interests of those who are not, by criminalizing purchasing and third party involvement while also ensuring that sex workers aren't prevented from taking certain steps to protect themselves as identified by the Supreme Court of Canada in its Bedford decision.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

The Bedford decision, which precipitated this action by Parliament, was fairly sweeping in wiping out all the provisions that criminalized those involved in sex work.

I'm asking for a legal opinion, not a personal opinion. How would you say the court cases that are now coming forward are dealing with the Bedford decision versus Bill C-36? In other words, are any of those cases focused on whether Bill C-36 and its current provisions are consistent with the Bedford decision?

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Those who have followed the public positions I've taken on this will know that I was hopeful we could involve those most directly impacted by the law, and that is the sex workers themselves, in the design and in setting the scope of this study.

What you've just told me now confirms to me the importance of the testimony we're going to hear from those witnesses, because what we have is really just a review of case law and police charging statistics, and we don't really have, from Justice, the comprehensive review that we'd really need on this bill.

Again, I'm not casting that at you. I'm just saying that we don't have that available here. I know the committee will keep in mind, as we continue to invite witnesses to the committee, that we really need to have a good balance that includes those who are most directly affected by the legislation.

Ms. Levman, when you reviewed the objectives of Bill C-36, the original bill, you reminded me of what my original objection was. The bill really comes from a prohibitionist stance, so its objectives are to stamp out, reduce and remove sex work. Those are laid out in the objectives as you described them.

Would you agree with me that that is the premise behind Bill C-36?

[Nathalie Levman]

We did partner with the crime statistics division of Statistics Canada to do the Juristat. A Juristat was done just prior to the enactment of C-36 for a comparison. Soon we will be releasing a report on the experiences and characteristics of those who were served by the organizations that received the funding that was attached to Bill C-36.

We also, of course, always monitor jurisprudence, secondary sources and research, etc. That is a normal part of our work, so that we can understand what's going on and how the bill is impacting others from the point of view of stakeholders.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

I understand.

Thank you.

I gather that parts of Bill C‑36 have been ruled unconstitutional at the trial level because the provisions make it harder to protect the health and safety of people who sell sexual services.

Do you have any recommendations?

Very hypothetically, how could these parts be improved if they were declared unconstitutional?

Can you make any suggestions?

[Nathalie Levman]

I tried to give an overview of the relevant data that speaks to all of this, including the Juristat from Statistics Canada and the jurisprudence. We have numbers for charges under each offence that can be reviewed in the Juristat itself. I think that the Juristat could be very helpful to this committee in assessing the impact of Bill C-36.

Does that assist you? It's not my role to provide a personal opinion.

[Nathalie Levman]

I've already gone over the available data for the committee for members' information, but I'd be very happy to speak to the bill's objectives, which are, of course, articulated in its preamble as well as in the parliamentary record, which includes the Department of Justice's technical paper on Bill C-36, because it was tabled before both committees that studied that bill.

The record indicated that the bill's ultimate objective is to reduce the demand for sexual services, with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible. The record also indicates that the Nordic model generally, and Bill C-36 in particular, is aimed at protecting the equality and dignity of women and girls, because the model views the sex trade as disproportionately and negatively impacting this group, in particular the most vulnerable among them. The Nordic model also posits that the sex trade both reflects and perpetuates structural and systemic discrimination against women and girls.

The parliamentary record also points to a range of harms that are perceived to be caused by the sex trade, and the legislation is aimed at addressing those harms. They include harm to the individuals involved, in particular the most vulnerable, who may not be sufficiently empowered to protect themselves; harm to women and girls generally by treating them as a commodity; and harm to all of society on the basis that societal inequalities negatively impact everyone.

The record also indicates that the bill was intended to avoid the harms that some perceive to be caused by decriminalization and legalization, such as a larger sex trade and higher rates of human trafficking.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

I want to thank the witnesses for joining us today. I appreciate it.

Ms. Levman, Bill C‑36 had three goals. You talked a bit about them. The bill aimed to protect people engaged in prostitution, who are considered victims of sexual exploitation; to protect communities from the harm caused by prostitution; and to reduce the demand for sexual services.

Based on the data that you have managed to collect in recent years, since the passage of the Protection of Communities and Exploited Persons Act in 2014, do you believe that these goals have been met?

I want you to provide an overview of the situation.

[Nathalie Levman]

I can really speak to you only about the knowledge that we have right now. Safety issues were front and centre when Parliament was considering Bill C-36.

Parliament, back then, acknowledged that some people choose to engage in sex work and that that's likely to continue to be the case, even in a regime that's designed to end the sex trade. The record indicates that it's for this reason that the legislation doesn't prevent individuals from implementing certain safety measures, in particular those identified by the Supreme Court of Canada in its Bedford decision.

In particular, the parliamentary record indicates that the legislative exceptions to the material benefit offence mean that sellers of their own sexual services may interact with others on a personal or commercial basis in the same way as anyone else, including if they want to rent particular locations or hire persons to provide services for fair market value. The bill's immunity provision means that they will not be held criminally liable for providing sexual services independently and co-operatively, including by pooling resources to pay for services that are excepted by the material benefit offence.

Acknowledging that these are live issues before the court, I would close my remarks there.