Justice Committee on July 7th, 2014

[The Chair, Conservative, Mike Wallace]

I'm just going to put it in as a Conservative slot, if you need one.

Mr. Casey from the Liberal Party, the time is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

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

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

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

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

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

[Nathalie Levman]

Thank you.

Again, I would bring you back to the general principles of criminal law. Definitely one of those persons could be found a party to the advertising offence if a crown could prove knowledge of (a) the existence of the ad, and (b) the fact that the ad was in fact an ad for sexual services.

[Sean Casey, Liberal, Charlottetown, PE]

What if the website is hosted in another country?

[Nathalie Levman]

I don't believe Canada has jurisdiction over websites that are hosted in other countries. That said, my understanding is that websites do cooperate with authorities.

[Sean Casey, Liberal, Charlottetown, PE]

Okay.

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

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

[Donald Piragoff]

Gladue is a general sentencing principle that applies irrespective of whether there's a mandatory minimum or not. Mandatory minimums do not run afoul of Gladue. Gladue is a principle that would be applied in light of the mandatory minimum.

[Sean Casey, Liberal, Charlottetown, PE]

Would you not agree that Gladue compels a judge to explore options other than incarceration when sentencing an aboriginal offender? When the government decides to take away all other options, it is directly contravening what the Supreme Court of Canada said in Gladue.

[Donald Piragoff]

I would not agree with that statement.

[Sean Casey, Liberal, Charlottetown, PE]

Do you accept that the government had a duty to consult first nations when drafting this legislation, particularly when considering the disproportionate impact that the societal problem of prostitution has on first nations communities?

[Donald Piragoff]

The government conducted a broad consultation. There were representatives from first nations communities at some of the consultations.

[Sean Casey, Liberal, Charlottetown, PE]

So you agree that they had a duty to consult and they fulfilled it?

[Donald Piragoff]

I'm not saying whether they have a duty or not. That's a constitutional issue. I'm saying that aboriginal groups were consulted, and I believe that some of them will be testifying before the committee this week.

[Sean Casey, Liberal, Charlottetown, PE]

What value was the $175,000 Ipsos Reid survey to the department in preparing the bill?

[Donald Piragoff]

It was useful information, just as the consultation that the department undertook online was, as well as the in-person consultation that the minister undertook. It was all part of an accumulation of background information and views and comments with respect to a social issue in Canada.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Piragoff, can you expand at all on the words “useful information”? Is there anything more that you can tell us in terms of the value of that Ipsos Reid survey or poll, other than that it was useful information?

[Donald Piragoff]

As the minister indicated, the poll was quite extensive. There were only a few questions dealing with prostitution, so when you talk about $175,000—if that's what was true—there were only a couple of questions on prostitution. There were a whole bunch of questions on other topics.

I believe that's why the minister said there's a certain process for the release of the document. It was not only dealing with this topic.

[Sean Casey, Liberal, Charlottetown, PE]

Can any of you shed any more light on the proposed $20-million expenditure? I'm particularly interested in any specific plans for programs with respect to first nations and aboriginals.

[Donald Piragoff]

The details of the $20 million have not yet been finalized. However, clearly the research does show that there are certain groups that are disproportionately affected by prostitution. That includes marginalized communities, including aboriginal communities. It would naturally make sense for program money to focus on the most vulnerable, so we will be looking at aboriginal communities, at youth, and at those most susceptible to exiting the practice of prostitution.

[Sean Casey, Liberal, Charlottetown, PE]

Subsection 213(1) of the Criminal Code was struck down by the Supreme Court of Canada. It says:

Every person who in a public place or in any place open to public view

...(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person

for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

That was found to be unconstitutional and it has been replaced. What strikes me is the similarity between the two. Here is what it has been replaced with. I understand it's your opinion that this will pass constitutional muster.

(1.1) Everyone is guilty of an offence punishable on summary conviction who communicates with any person for the purpose of offering or providing sexual services for consideration 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.

Would you agree that there isn't a lot of difference between the wording of what was struck down by the Court and what you propose to replace it with?

[Donald Piragoff]

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

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

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

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

[The Chair, Conservative, Mike Wallace]

We'll move to Mr. Dechert from the Conservative Party.

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

Thank you, Mr. Chair.

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

[Nathalie Levman]

I think you're referring to the legislative exceptions to the material benefit offence.

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

Yes.