Evidence of meeting #33 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was workers.
A video is available from Parliament.
Professor John Lowman Professor, School of Criminology, Simon Fraser University, As an Individual
Yes, I can. Can you hear me?
Prof. John Lowman
Thank you very much.
In addition to speaking today, I've submitted a written brief that is much more detailed. I'll review some of the material in that written brief and make some extra points.
To introduce myself, I've worked on various research projects on prostitution since 1977, mostly in British Columbia. I've done nine different studies for the Department of Justice Canada, and I was on the board of a service organization for sex workers on the Downtown Eastside, called PACE.
My main interest in speaking to Canadians about prostitution, and particularly legislators, is the hope that policy and legislation are based on reliable and accurate information. I'm hearing all sorts of claims made about research today, none of which would actually stand scrutiny.
Of course, research can't answer all of the problems that we're talking about, so I should also say what my own political value judgment is with regard to prostitution. I believe that the state should not prohibit consenting adult sexual activity, especially in situations where it endangers sex workers. I therefore disagree with those who say that 90% of prostitution doesn't involve choice, although much of it involves highly constrained choice. Some prostitution is entirely opportunistic. Some is sexual slavery, and the law should criminalize sexual slavery in every circumstance that it should occur.
However, like most service and manual workers, sex workers make the choice to prostitute in situations that they do not choose, i.e., the capitalist political economy, colonialism, gender power structures, racism, and so on. The vast majority of the population make those choices in situations that they do not choose, but we don't see criminal law as the solution to those inequalities.
Let me start by saying a few things about evidence claims on which the prohibitionist position is based. I've heard it said again here today that the average age of entering into prostitution is 14. In my written brief I've reviewed the literature, and I've also gone over the review of the literature that was conducted in Bedford v. Canada. That is a preposterous claim. There is only one piece of research that supports it. It is a study of juveniles; it excluded adults. If you look at the research, which includes both adults and juveniles, the average age is generally 18 or well above that.
You also see examples of prohibitionist discourse using certain kinds of research and then generalizing it as if it represents prostitution more generally. You'll often hear Melissa Farley's research quoted, as indeed is Joy Smith's “The Tipping Point”. She talks about 100 Canadian sex workers and what their profiles look like.
The women on the Downtown Eastside do not represent prostitution more generally. The research literature says that most women are not trafficked. Obviously there are many different experiences, and some of them are truly awful. However, if we want to talk about the nature of prostitution across the whole of it, we need to understand that there are many different kinds of prostitution.
I would also note that Farley's work, which is often quoted by prohibitionists, was also entered into Bedford v. Canada. Justice Himel concluded that Farley's advocacy contaminated her research. I think that bears repeating.
Let me say something about the logic of demand-side prohibition. Demand causes prostitution, it is argued, so therefore if you get rid of demand, ultimately you will get rid of supply. It ignores economics 101. Supply and demand interact. We live in a culture that commodifies female and male sexuality at every turn. Explicit sexual imagery is only a few key strokes away, and our culture produces the demand for sex. It similarly produces sexual capital on which supply rests. Race, class, and gender structures mean that sexual capital is the only capital available for some people.
Let's take economics 101 and look at what it would do for the made-in-Canada approach to prostitution prohibition. In one of the first studies of prostitution conducted in Canada, when clients were asked what prompted them to purchase sex, 41% of respondents said it was the availability and/or visibility of sex workers.
Although the protection of communities and exploited persons act prohibits third-party profit from prostitution, its section prohibiting advertising exempts a person advertising sexual services on their own behalf. Demand-side prohibition holds that the state should not hold sex sellers criminally responsible because they are victims of men. However, as much as prohibitionists deny that sex workers ever exercise choice, many and I would suspect most sex workers don't agree that they are one-sided and only victims, even if some of them are victimized. They see themselves as agents acting on their own behalf, taking advantage of their sexual capital. They do not want to exit prostitution unless they do so on their own terms. Consequently, they will continue to advertise and sell sexual services, and legally so under the new regime. However, anyone who takes the bait will have the force of criminal law brought to bear against them, in which case they say the made-in-Canada prohibition amounts to state-sponsored entrapment of men.
Asymmetrical prohibition will be subject to a section 15 challenge because it criminalizes mostly male sex purchases but not sex sellers, the large majority of whom are female. A section 15 challenge was coming down the pipe in the Pivot charter challenge, by the way. That issue was going to be argued if that challenge had proceeded.
What about supply? Demand is a necessary but not sufficient condition of prostitution. Focusing on demand means that the state will not have to address the factors that produce supply, we just blame the men. So colonialism, poverty, substance addiction, unemployment, gender employment structures, economic opportunity structures, and a culture that produces sexual capital will be left as they are.
For the people who rely on their sexual capital to subsist, demand-side prohibition will only exacerbate their problems, not least because patterns of law enforcement will not change. Since 1985, when the communicating law was enacted until the law struck it down, 93% of all prostitutions charges were a street prostitution offence. Two main factors produced this enforcement pattern.
First, it reflects patterns of complaints police receive about prostitution. Nearly all of them are about the street trade. Indeed, in every public opinion survey ever conducted, one area of clear consensus—and of course Canadians are deeply divided over the legal status of prostitution—is that prostitutes shouldn't be on the street. Of those polled in the June Angus Reid survey, which also shows that the majority of Canadians do not support Bill C-36 by the way, 89% of Canadians in that poll said that prostitution should not be on the street.
The second main factor explaining that law enforcement profile is the difficulty of “procuring bawdy house/living on the avails” charges. They are time-wasting. It's difficult to get evidence. Convictions were difficult, not least because sex workers have no interest in testifying against the people with whom they work. Police also knew that charges against off-street locations would reproduce exactly the same problems that put prostitution on the street in Toronto and Vancouver in the 1970s, when police closed down off-street prostitution.
How much would that pattern of enforcement change under the new law? It wouldn't change very much. That is because, if we look at Sweden, most of enforcement, especially during the first years, was against people on the street. What are the police going to do in Canada to enforce this law against off-street clients? Are they going to set up bogus escort services? Massage parlours? Are they going to entrap people?
We come to a legislative Gordian knot. I too am opposed to the legislation, which talks about criminalizing a sex worker “in a public place, or in any place open to public view...where persons under the age of 18 can reasonably be expected to be present”. We heard the way to deal with the problem of street prostitution was to prosecute the clients, and we heard Mr. Pickton's name mentioned.
As it happens, in the 1990s, the police in Vancouver deliberately set up a red light district in an industrial area. They deliberately had a policy. There was a news release, and I can send you a copy if you'd like. Their entire objective was not to lay charges against the women but to focus entirely on the men who buy sex. That particular area, the red light district—that industrial zone—which is where this particular provision of the legislation would try to force prostitution, became the killing field of Vancouver. That's where Mr. Pickton picked up most of his victims. That's how successful this kind of legislative regime was when it was tried in Vancouver, as it was in the 1990s.
Prof. John Lowman
I have two recommendations.
First, we've had the government arguing that this legislation would pass constitutional muster. It's the same government that argued that the laws that were impugned in Bedford passed constitutional muster. The government was completely wrong on that score. It is important that the government send this legislation to the Supreme Court for an opinion about its constitutional integrity.
Second, if you want to control things like street prostitution—and one of the catch-22s that the government faces is the high public support for controlling street prostitution—if you have a system of bylaws, zoning laws, you don't need the criminal law.
One of the things you'd understand if you had studied prostitution law enforcement in Vancouver over the last 30 years is that police can move it at will to wherever they like, with one condition. It's not that they tell people where they cannot work, but where they can work. When they tell them where they can work, they can move them overnight.
Thanks very much for your attention. Decriminalization is the way to proceed.
Conservative
The Chair Conservative Mike Wallace
Thank you, Professor, for that.
Now we will move to the rounds of questions. I do ask committee members to indicate who your question is for so that the witnesses can be ready to answer.
Our first questioner, from the New Democratic Party, is Madam Boivin.
NDP
Françoise Boivin NDP Gatineau, QC
There's so little time and so many questions. It is incredible.
I talk fast, but I can't talk as fast as Émilie Laliberté. That is the ultimate fast.
Émilie, I'll start with you since we haven't heard much from sex workers themselves ever since this whole debate began. I want to give you an opportunity to speak to certain things you probably didn't have a chance to address. You can have two minutes to answer.
How will this bill make it more dangerous for you to conduct your business? I'd like you to explain that to the committee and to respond to some of the comments the professor from the University of British Columbia made. Forgive me, but I can't remember her name.
NDP
Françoise Boivin NDP Gatineau, QC
She said that you were all exposed to violence and that you weren't treated equally, contrary to section 15 of the charter.
Spokesperson, Canadian Alliance for Sex Work Law Reform
First of all, Ms. Benedet did not distinguish between victims of trafficking and consenting adults in the sex industry. As my colleague Naomi Sayers made abundantly clear, those who are forced to provide sexual services against their will are victims of exploitation. That isn't sex work. The Criminal Code contains a host of provisions to deal with that reality: offences related to organized crime, human trafficking, illicit trafficking, domestic violence and extortion. In short, the Criminal Code contains enough provisions to address violence in those situations, which are appalling. As I see it, this bill does exactly the same thing as the previous provisions that were deemed unconstitutional, and even goes further.
Thank you, by the way, for giving me a chance to respond to Ms. Benedet's comment. She said police would now be able to go after clients on the street.
I am the spokesperson for the Canadian Alliance for Sex Work Law Reform and I have also been a liaison officer, so I've provided outreach support to street workers. I am a sex worker. I've worked with thousands of people in the sex industry in Montreal. What I saw after the police carried out mass arrests in the Hochelaga-Maisonneuve area was an increase in violence towards sex workers on the street.
It's false to call that approach a new tool. Provisions already existed under section 213. Clients were arrested on the street for soliciting someone for the purchase of sexual services. Male, female and transgendered sex workers on the street were forced to hang out on dark corners for longer periods without being able to communicate with potential clients to establish an agreement. Sex workers had to get in clients' cars as quickly as possible because clients were worried about getting caught by police, not to mention the risks and violence the workers were exposed to as a result. The Montreal-based organization Stella documented that phenomenon through its list of bad johns. Power, an organization that works with sex workers in Ottawa and Gatineau, also documented the same phenomenon. The same thing was observed in Vancouver, as outlined in two recently released reports discussing the change in tactic police there adopted in 2013 to target clients. The resulting reality for sex workers between 2013 and 2014 has been documented and it exposes them to more violence.
NDP
Françoise Boivin NDP Gatineau, QC
The parliamentary secretary often says to us and various witnesses and groups that nothing prevents sex workers from safely conducting their activities at home. What do you say to that?
Spokesperson, Canadian Alliance for Sex Work Law Reform
If children live next door, will I be able to see my clients at home, when a child could go out on their balcony, for instance? Forgive me, but that's ridiculous. It makes no sense. A person under the age of 18 could be present anywhere. Mr. MacKay confirmed that this morning when he said that children could even come out of hotels. It's another way to criminalize anyone in a bawdy house and anyone working indoors as well as those working on the street.
NDP
Françoise Boivin NDP Gatineau, QC
When you're sitting there at home legally advertising your services—and we don't know exactly what that means, but the courts will tell us, as the minister mentioned this morning—where is the client? The bill doesn't set out any exceptions when it comes to the purchasing of sexual services. Mightn't a client who responds to your ad and purchases your services be exposed to entrapment, as Professor Lowman pointed out in his brief? What do you think? The bill may simply be a sweeping attempt at entrapment as far as committing an offence goes; the client could answer a legal ad, go to your home, where waiting police would pick him up for committing a crime.
Isn't there some form of—
Spokesperson, Canadian Alliance for Sex Work Law Reform
Police solicitation?
Spokesperson, Canadian Alliance for Sex Work Law Reform
In fact, it makes me wonder about the message the government wants to send Canadians. Is its priority to spend its entire morality budget, the entire policing budget, the entire public safety budget on putting undercover officers in hotel rooms to arrest clients? Or is its priority to tackle violent offences and enforce existing Criminal Code provisions to stop exploitation?
NDP
Françoise Boivin NDP Gatineau, QC
Thank you.
I still have one last question, and it's for Mr. Russomanno.
Sorry if I made a mistake on your name.
I think you asked a question, and I'm going to send the question back hoping for an answer. How do you define sexual services in this Bill C-36? Is it clear to your mind, because as a lawyer I'm not sure I'm clear on the definition? There's no real definition. Could it cover, I don't know, lap dancing? What are we treating exactly with Bill C-36? Is it clear, and if it's not, isn't it a danger to bring that to the courts and will it be a good defence at some point in time?
Member and Criminal Defence Counsel, Criminal Lawyers' Association
The short answer is that I think it would obviously include lap dancing. That sounds like a sexual service to me. Just a preamble here, when we talk about leaving things to the court to interpret, there's a cost associated with that when we arrest people and then we let the courts figure it out. That's just a preliminary thing.
With respect to sexual services, the one reference point I have is with respect to our law on the offence of sexual assault, that the sexual nature of the touching, for example, is subjective in the mind of the victim. So that's one potential reference point. Will it be the person who is providing the sexual service who decides whether it's of a sexual nature or not? I'm not sure. It seems vague to me, and it perhaps would even go further than lap dancing. I'm not sure. For example, if an underwear model has her picture taken, is that a sexual service? It seems to me that she's being provided consideration, and whether or not that's a sexual service is going to be left to the courts again. But there's definitely a cost associated with that.
Conservative
The Chair Conservative Mike Wallace
Thank you for those questions and answers.
Our next questioner is Mr. Dechert from the Conservative Party.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair, and thanks to each of our witnesses for being here. I think you brought some really important information to the committee, especially those of you who have been involved in this trade in the past.
A lot has been said about the age at which women and men and others who get involved in prostitution typically get into the business. Ms. Nagy, I think in your opening comments you said that you know that many do between the ages of 12 and 17. Ms. Benedet, you mentioned quite a few join the profession under the age of 18. Some such as Professor Lowman disagree with that.
Ms. Sayers, when did you first get involved in the sex trade? What age were you?
Spokesperson, Canadian Alliance for Sex Work Law Reform
I was 18, and I was still in high school.
Conservative
Founder and Front-Line Victim Care Worker, Walk With Me Canada Victim Services
I was trafficked under the age of 20, but the majority of the victims we are working with now are 16, and I'm not making that up.