Justice Committee on July 7th, 2014

[Nathalie Levman]

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

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

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

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

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

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

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

[Donald Piragoff]

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

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

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

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

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

I think that's an important distinction, one that our friends in the media have missed largely, and one that some of my friends in the opposition have missed.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you again, Mr. Chair.

Thank you to the officials for being here.

I want to clarify a few things. The first is a very simple question. In the online survey that was done, were mechanisms in place to ensure that the only people answering were from within Canada—Canadian ISPs?

[Nathalie Levman]

As I understand, we did receive some submissions from non-Canadians. Those submissions were considered but were not counted in the final count.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

I want to return to the material benefit, where those who might be otherwise exempted aren't exempted if they receive the benefit in the context of a commercial enterprise that offers sexual services for consideration.

Mr. Piragoff has outlined that individual prostitutes having their own places would not be caught. But if you have any kind of a cooperative enterprise, let's say two or three women, or two or three men, working together in an arrangement that is commercial but also designed to enhance mutual surveillance, safety, etc., would that be a commercial enterprise?

[Nathalie Levman]

You're talking about working cooperatively together whereby the only benefit received results from the sale of one's own sexual services. The answer is that Bill C-36 does not criminalize that scenario.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

So as long as they make sure there was no pooling of resources and sharing of income, they would be safe. Otherwise, they'd fall within a commercial enterprise.

[Nathalie Levman]

I think we have to be careful to read the bill with all of its component parts. We have a legislative exception that would apply to a person who offers, let's say, protective services. If people were working cooperatively together and they all contributed a portion towards the protective services that were provided, at a fair value, and that person wasn't at all involved in the prostitution other than acting as a body guard, Bill C-36 would not apply to that scenario.

[Craig Scott, NDP, Toronto—Danforth, ON]

Otherwise, if this collective effort included any kind of on-site manager or a receptionist service, etc., that would be considered commercial.

[Nathalie Levman]

Now we're getting into factual determinations that need to be made by the court.

[Craig Scott, NDP, Toronto—Danforth, ON]

This is the criminal law. We'd like to know a little more. We'd like to have a little more clarity in advance, thank you.

[Nathalie Levman]

As I said, if the third party who was present falls within a legislative exception and the people are working cooperatively together and the only benefit they are receiving from the others is the safety of proximity, Bill C-36 does not criminalize anyone in that scenario.

[Craig Scott, NDP, Toronto—Danforth, ON]

Okay, thank you.

The minister earlier said that the ability to screen clients in public would be available, as long as you take care not to be anywhere near anybody 18 years or under. But we also know that johns, the clients, cannot engage in the purchase anywhere at all, so I'm wondering whether or not you would accept that it's still going to be a fleeting enterprise to be able to screen your clients in public, precisely because the johns are themselves criminalized for being in public with a prostitute and engaging in the transaction.

[Nathalie Levman]

You're right. The bill is clear that because one of the main objectives is to reduce prostitution, deter it, and discourage it, purchasing and communicating for that purpose is criminalized in all places, which is consistent with the objectives of the bill to reduce prostitution itself. A lot of balancing of interests is going on in Bill C-36, and it has to take into consideration many different safety issues.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

The minister in his June 4 press conference said something that I think he confirmed today. He said, “Some prostitutes we know are younger than 18 years of age. If they are in the presence of one another at three o’clock and are selling sexual services, they would be subject to arrest”. I believe he confirmed that today, and I'm wondering if that is the case.

I understood that the Department of Justice issued some kind of correction after the press conference to say he wasn't correct. It seems as if he has reiterated that.

Could we please have a clarification about whether that is true or not?

[Nathalie Levman]

It's an objective test. Where children can reasonably be expected to be present is a qualified, objective test, and so the courts will look at a person in the position of the accused, whether or not that person would have known that children could reasonably be expected to be present.

I recall the minister making a comment in his earlier remarks that a bar, for example, would likely not meet that test. As to whether or not another scenario would meet that test, that would be up to the courts.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

[Donald Piragoff]

Just to clarify that, with a test it's really not material whether a person under 18 is present or not. That would be evidence, but the test is whether it is objectively a reasonable expectation that at that place, at that time, a person under 18 would be there. The fact that someone under 18 is there doesn't ipso facto satisfy—

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is Mr. Dechert.

I'm giving you a couple of minutes.

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

Thanks, Mr. Chair.

Let's just follow on this question for a moment because the opposition has put a lot of time and effort into the concern about two 16-year-old prostitutes out on the street, and each of them knows that the other one is 16. In that situation it's conceivable that the police could arrest one or both of them.

Would you agree with that?

[Donald Piragoff]

Under the existing law, two persons under the age of 18 could be arrested and charged under the Young Offenders Act. Under the new Bill C-36 whether they're together or whether they're alone, what matters is whether they are soliciting in a place where there's a reasonable expectation that children would be present. That's the test. It's not whether children are actually present or not.

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

I understand that point. It's not whether or not the two know that each other is under the age of 18, but whether or not they think it's conceivable that other children might be present, other persons under the age of 18. Is that correct?

Ms. Levman.