I'd like to thank you, Mr. Chair, for having us here. It's obviously very important that we have this dialogue on a very important piece of legislation.
The Criminal Lawyers' Association focuses on the constitutional aspects of Bill C-36, and in particular whether it may survive a section 7 or a section 2(b) freedom of expression constitutional challenge. On that basis, we are opposed to this legislation. In our view, Bill C-36 is bad policy and bad law. The evidence that was heard at the application level that was unanimously accepted by the Supreme Court of Canada is indisputable. That evidence is unchanged with respect to Bill C-36 and what it seeks to do. Regardless of the loftier legislative objectives of Bill C-36, the same harms remain when one takes the approach of asymmetric criminalization, in my respectful view.
In advocacy in our court rooms, lawyers like to think about facts as whether they are challengeable or indisputable. When you have facts for evidence that cannot be moved, that's indisputable, then you have to absorb that evidence. You can't ignore it. It comes to mind when we look at the evidence that was heard in the Bedford application and that was unanimously accepted by the Supreme Court of Canada.
It's beyond a shadow of a doubt that criminalizing the sex trade contributes to harm for sex workers. We're talking about the most vulnerable people in our society, especially when it comes to sex workers who are in the street, and this legislation does absolutely nothing in my view to address that problem.
The objectives that are stated in Bill C-36 are quite different from what was seen in the Bedford case. Instead of a primarily nuisance reduction objective that we saw in previous legislation, we have these loftier objectives of eradicating prostitution itself, of discouraging people from entering the sex trade, of protecting sex workers themselves, of encouraging sex workers to go to the police when they suffer from acts of violence. This bill is trying to eradicate the sex trade itself.
Something that doesn't connect with me is that it's trying to protect sex workers by driving them underground, by pushing them into the dark alleyways, by pushing them away from public view. There was already evidence about what means sex workers employ to protect themselves. For example, communication and how sex workers screen potential clients to avoid potentially dangerous situations. The provisions in Bill C-36 in my view do not do anything to address these harms, and the harms will continue.
Now we have a new setting where we have the same ill effects, but we have loftier objectives. So I'm going to try to word this in terms of a section 7 challenge, because that seems to me a primary avenue of challenge. As we know in the previous legislation there was a challenge under section 7 on the basis of gross disproportionality and overbreadth. So we look at any section 7 challenge in two parts. First, does the legislation deprive the applicant of life, liberty, or security of the person? In my view, it's established fact that criminalizing the sex trade does deprive sex workers of their right to security of the person.
Now we look at whether or not that is how it's related to the objectives of the legislation. So under the previous legislation we had, for example, for communicating in public or keeping a common bawdy house, the objectives of reducing nuisance in neighbourhood disruptions, and the court reached a rather easy conclusion in my view that when you compare those two, when you compare the objective of reducing nuisance to the effect of actually contributing to the harm that's visited upon sex workers, that's just no contest. The court found very easily in my view that the effects were grossly disproportionate to the legislative objective.
Now we have a loftier set of objectives, which we've seen in the academic literature, and we've drawn heavily upon in our research. Academics have referred to the InSite decision, the safe injection decision, when looking at the principle of fundamental justice of arbitrariness. So once we've established that there's been a deprivation of security of the person, is that deprivation in accordance with the principles of fundamental justice? In my view, this legislation is vulnerable to a challenge on the basis that it's not only grossly disproportionate to the albeit loftier objectives, but it's also arbitrary. In other words, the goal in no way bears any relation to the effects.
The goal of public safety, the goal of encouraging sex workers to report incidents of violence to the police, is in no way going to be realized. The evidence is clear that when sex workers are not permitted to communicate—this is a primary mechanism that they use to protect themselves—for those who are most vulnerable, those who are in the street, that is going to contribute to the danger. That will lead to a finding of arbitrariness, in my view.
This is something that an academic mentioned in an article recently in The Globe and Mail. Kyle Kirkup, who is a lawyer and doctoral candidate at U of T wrote, “Got a complex social issue? There’s a prison for that”. That is the overriding sense that I get from this legislation. The criminal justice system is a very blunt tool, and it's simply not equipped to deal with this very complex social issue.
The other challenge that is ripe for reconsideration is under subsection 2(b), freedom of expression. This was last challenged in a 1990 case—the prostitution reference. The Supreme Court, in Bedford, has indicated there is a possibility that cases that have been previously decided by that court may be reconsidered when faced with new facts and arguments.
When one looks at a subsection 2(b) challenge, you are really looking at what underlying value can be seen from the form of expression. The kind of expression that we're looking at, communicating in public, is protective expression. This isn't just commercial speech. Again, the evidence is very clear. Sex workers communicate in order to protect themselves. In my view, this goes to the core values that underlie the freedom of expression that we are all supposed to be guaranteed.
It comes down to whether it would survive a section 1 challenge. In my view, it would fail to do so on the basis that it's not proportionate at all, that it will further contribute to the harms visited upon sex workers.
How does Bill C-36 protect the most vulnerable in our society? It doesn't do that. In my view, it simply adds to the harm that's visited upon sex workers.
What is the evidence? The evidence is that it contributes to the harm. As a society, I think we have an obligation to protect those who are most vulnerable. Bill C-36 utterly fails to do that.