Justice Committee on July 7th, 2014

[Anne London-Weinstein]

I'd like to address that question if I may, on behalf of the Criminal Lawyers' Association.

If I understand Professor Benedet's view, I think it's that a person who is engaged as a sex worker is essentially always operating from a position of inequality. I understand the argument but I'm not sure that's a presumption that we can safely rely on in every circumstance when we're dealing with adult females.

Of course when you take the corruption of children in sexual acts and sexual prostitution, that's not going to be something that any Canadian in a free and democratic society, upholding the values that we do, is going to endorse. But the issue is really, when we're trying to deal with inequality in relation to children or we're trying to remedy some of the social ills that we're dealing with here, is the criminal law the best and most effective and precise tool that we can use? My submission would be that it is a very rough tool to either remedy inequality, or to deal with the issue of child prostitution.

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

You mentioned choice, so I'd like to ask some of our panellists about choice.

Ms. Nagy, is it your view that the majority of women in this industry freely choose to be in this industry?

[Timea E. Nagy]

The correct way for me to answer that is that the majority of the women that we have seen—which is about 300 in the last four years—were forced into prostitution.

We do not deny the fact that there are women in this industry who entered into this industry of their own will, just as I did when I needed money for food and when I almost became homeless.

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

If you need money for food, or if you need money because you need a place to live, is that a free choice?

[Timea E. Nagy]

It's absolutely not.

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

Ms. Sayers, you mentioned that a lot of indigenous women rely on the sex industry to get the money they need to survive. Is that a free choice? Do they freely choose to do this, or if they had a free choice to do something else, would they do something else?

[Naomi Sayers]

Would you do your work without being paid?

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

No, of course not—

[Naomi Sayers]

You have your answer.

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

—but I have chosen from a number of things available to earn a living.

If this is the only way for them to survive, is it really a free choice? That's my question.

[Naomi Sayers]

“Choice” and “free” are such value-laden terms. To say that somebody has a choice is speaking from a privileged position. We don't question other workers whether they freely choose their job and we shouldn't be questioning sex workers whether they freely choose their job.

[The Chair, Conservative, Mike Wallace]

The next questioner from the Liberal Party is Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

Professor Lowman, first of all thank you for your spirited defence of evidence-based decision-making and your critique of the Farley research.

I was interested in your comment with respect to the legal challenge from Pivot on the basis of section 15 of the charter. I am aware that this challenge is effectively stalled or parked, and I would think there's a real question as to whether it's going to go forward given these most recent developments.

Can you explain for the benefit of the committee that challenge and your view of a future challenge on the basis of section 15?

[Prof. John Lowman]

I have two different points. The Pivot challenge when it came to section 15 was talking about the way the protective service potential of the police is not extended to women in sex work so they do not get equal treatment under the charter.

I think a different kind of section 15 argument is likely to arise in the proposed legislation because you have a situation where you're basically saying one party in a transaction, which in a legal sense is a consenting transaction, has no responsibility for it, and the other party is given full responsibility for it.

So as far as I can see, given that many women involved in prostitution do not agree with the prohibitionists' analysis of choice—yes, choice is constrained, but that's true for most manual and service workers, agricultural workers, seasonal workers, and on and on—what you're going to see is the argument that if the police set up bogus escort services in order to get buyers to contact them and make an offer to purchase a service, remembering that the advertising of that service if it's a person doing it for themselves will be exempt from the law prohibiting advertising, you essentially have a form of entrapment because you potentially have a person who has never bought sexual services before.

As I say, supply and demand interact. When we study clients and ask them reasons for purchasing sex, 41% talked about the visibility and availability. If you have an institutionalized system that does nothing about availability, it seems to me you have institutionalized entrapment.

[Sean Casey, Liberal, Charlottetown, PE]

Professor Benedet, we heard Professor Lowman talk about the advisability of a reference to the Supreme Court of Canada with respect to the constitutionality of this legislation. We heard from the minister in very clear terms this morning that is not going to happen. I don't know if you were here for his testimony.

Do you have a view on that?

[Prof. Janine Benedet]

It depends on how you understand the evidentiary record for such a case. He'll say, “Well, let's just refer this to the Supreme Court of Canada and they can tell us whether it's constitutional or not.” The evidentiary record that was amassed for the prior challenge had a lot to do with patterns of enforcement and implementation over a very long period of time. The idea that we can simply just take all that evidence and reuse it under a new bill seems odd to me in a challenge that seems to be so deeply rooted in the way that the legislation is enforced and what its effects are. I would have assumed that there would need to be a fairly significant period of time in order for that evidence to be amassed, and not simply relying on the police saying, “Well, we're doing that anyway, so here are the effects of that or not.”

I can see the argument that we've just had a constitutional ruling, in a sense, on this legislation, so here's the new bill; why don't we skip the stage of going through all the levels of court and refer it right to the Supreme Court of Canada? But I do question then what the evidentiary record is going to be, which is based on the actual enforcement and implementation of this bill.

I don't know if it's all right for me just to say a word about this argument about entrapment. I've read the case law on entrapment. I teach criminal law, and I can tell you that the rules about entrapment are nowhere near as broad as Professor Lowman seems to be suggesting they are. The police can't just go out and set up sting operations, whether for drugs or prostitution. Right now they're doing exactly the kind of thing we're describing for underage prostitution and there are clear rules about when the police can set up a kind of bogus sting operation and when that crosses the line into entrapment. It's not like this is a new concept or that there isn't already an established body of jurisprudence.

The same thing is true for sexual services. It's there in the legislation dealing with underage prostitution. There's a body of jurisprudence that has interpreted that term where there is some kind of doubt.

I find it very odd to say that because most of the buyers, really all of the buyers, are men and most of those in prostitution are women, it is sex discrimination to prosecute the buyers. We don't do that for sexual assault where over 90% of those charged are male.

The gendered nature of the industry is what makes it so discriminatory against women. I find it very strange and not consistent with substantive equality principles at all to turn that on its head and say that by targeting men for their acts of sex discrimination, we're discriminating against them in some form of reverse discrimination. That's not a version of section 15 of the charter that I recognize as it's been applied to sexual harassment in the workplace, sexual assault, and a whole other number of gendered acts of sex discrimination.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Mr. Russomanno, I have just a practical question. If a reference to the Supreme Court, as suggested by Professor Lowman isn't on—and it's pretty clear from the minister that it's not on and we hear from Professor Benedet that there may well be other good reasons that is not on—what can we expect in the medium term? I'm going to ask you to assume a couple of things. I'm going to ask you to assume that when the minister says he's open to amendments, he isn't, and that this bill is going to pass as it currently is. I expect at the next stage there will be a challenge. Take us through what happens from there.

The Bedford litigation started in 2007 and was finally struck down in 2014. What are we looking at in Canada in terms of legal challenges and the likely timeline, given those premises?

[Leonardo S. Russomanno]

In Bedford, as we know, there was just a massive evidentiary record that was amassed by Professor Alan Young and others. Presumably this would be challenged very soon after the legislation came into force. One of the first charges laid, I'm assuming, would lead to that challenge, and it's on that evidentiary record that the challenge would proceed. I know that, based on Bedford, based on just the sheer size of the evidentiary record itself, I don't think we could approximate the same sample size, if I could put it that way, of evidence as we did in that case, and that undoubtedly there would have to be reference to other jurisdictions that employ models that are similar to the one that's being proposed here. I don't think there is anything that is exactly the same. I supposed you can call this uniquely Canadian.

The asymmetric criminal model, as we know, has been employed in Sweden and other jurisdictions. Presumably there would be evidence coming out of those jurisdictions as well and an argument as to how you could transfer the interpretations of the evidence in those jurisdictions to our uniquely Canadian approach.

[The Chair, Conservative, Mike Wallace]

Okay, thank you.

Thank you, Mr. Casey. Thank you for those questions.

Thank you, panellists, for those answers.

Our next questioner is from the Conservative Party, Ms. Smith.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Thank you, Mr. Chair.

I'd like to ask two questions, one to Professor Benedet and one to Timea Nagy.

Professor Benedet, can you make further comment about the constitutionality of the asymmetrical offence in Bill C-36, the purchase of sex, as opposed to the decriminalizing of the victim for the most part. Can you comment about the constitutionality of that and compare it to some of these others that are in the Criminal Code right now?

[Prof. Janine Benedet]

If I understand the question correctly, you have to recall that most of the provisions that were challenged in Bedford, leaving the pimping provision aside, which I think has a slightly different analysis to it, applied to both buyers and sellers, if I can put it that way. One of the arguments that I made to the court was that we ought to look at those actors separately in looking at the effects of this provision. The court chose not to do that. Of course, the challenge was brought by three women who either were in prostitution or formerly in prostitution and now wanted to operate prostitution businesses and profit from the prostitution of others. The focus was very much on liberty and security of the person with respect to those women.

If we change the analysis and say that we now have a distinct offence here that criminalizes the purchaser—someone is charged under that offence—it's going to be that buyer whose constitutional rights are at issue. We may have a situation in which women come forward and say, “Well, we want to bring some kind of a challenge that the criminalization of him violates our rights”. It's certainly a step removed from the way that the challenge was constructed in Bedford. There's no “security of the person” interest for the buyer. His security is not at issue. His liberty is at issue, in the sense that he's being criminalized—that's true of all criminal legislation—but that's a far weaker interest than a “security of the person” interest. You're balancing that against much clearer and better objectives.

One of the things that the Supreme Court rejected was an argument by the crown, particularly the Ontario crown, that we ought to kind of infuse concerns of dignity and equality into the objectives of the old laws. The court said, “No, that's shifting the purpose; we're not going to do that. If those objectives had been there, that's a different kind of analysis.” That was certainly quite influential, and I think very present, in the Ontario Court of Appeal's decision as well.

Those are the kinds of factors that I think do change the analysis. My concern is that if we retain the provision that criminalizes women on the street when they're in places where young people are likely to be present, it undermines the argument you're going to make about the buyers, that we consider this to be exploitation, to be discrimination. We're focusing on the actor who's responsible for that discrimination and exploitation.

I don't think that requires proving that 100% of women in prostitution are beset with every possible inequality we can imagine and that they started as young people. Really, it's an impossible task. It's ultimately fruitless. The question is what the legislation is doing for those who make up that supply, and why is that supply drawn so disproportionately from racialized women, aboriginal women, women with histories of state care and sexual abuse? It doesn't have to be exclusively...in order for that argument to be an important one in the constitutional analysis.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Ms. Nagy, we've heard a lot about how everything needs to be decriminalized to make things good for the women so that they're safer.

I'd like you to comment on that, and also what happened in New Zealand when it was legalized. We have a pattern there, don't we? Can you make comment on that?

[Timea E. Nagy]

I want to start by saying that as I sit here listening, I zone out. I'm leaving my body and listening to the argument they are making. I believe this isn't really a debate about our next legislation. This is a debate about where Canada as a society will go next. This is a debate about whether you, if you're a mother, are okay with your daughter coming to you tomorrow and saying she thinks she would like to be a prostitute when she grows up.

I'm having a really hard time listening to the debate using words like “sex work”. This is not work. When I go to work and I get punched in the face, held down, and a gun is held against my head to the point that I have to go the bathroom and lock myself in, hoping that someone will save me, or get beaten—there are women whose jaws have been dislocated—I don't like to call that work. What I do today I call work. I think what you do, that's work. But when you go to work and every day there's a chance of your being exploited, beaten, and taken advantage of, I don't think we should call that work. For our next debate maybe we should change our language, because this is very offensive.

To go back to your question, Mrs. Smith, decriminalizing, this is how I would like to answer that question. Overall I think, because of where I'm coming from, and because of the front-line work that I.... I work with the police on a daily basis. We see the victims of human trafficking, and yes, of course, we see the women who are there of their own will, but they are well over 20 or 25. They have already accepted that this is the choice they have made, but those choices led from some very poor circumstances. They had been victimized before.

I think overall we need to make a stand as a society on where we're going next and what we would like our next generation to accept, where we would like our next generation to go, and what they think would be right for them to do, selling their body or going to university and college.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Also we've heard a debate about.... As Ms. Sayers says, she's never met anyone under 18. Yet we find that from the John Howard Society study on prostitution, 14 to 16 is the average age of entry, as you said, Ms. Nagy, about the young people you've worked with. From the childhood victimization journal, the Journal of Interpersonal Violence, 89% enter into prostitution before the age of 16. They're 13 to 19 years old on entry in Canada, An International Handbook on Trends, Problems, and Policies.

I know that Professor Lowman or others have stated different comments, but 52% entered before the age of 16. This is from a study to stop violence, Canadian research on violence against women. The studies go on and on, validating what you've said, is what I'm saying.

That being said, we talk about this turning point. I think you were very eloquent when you were talking—

[The Chair, Conservative, Mike Wallace]

Mrs. Smith, if you have a question you need answered, ask it right now or else your time is up.