Yes, we're sharing our time.
With Ms. Porth, I also speak on behalf of Pivot Legal Society and Sex Workers United Against Violence society. I'm a lawyer who has represented SWUAV over the last more than 10 years in their legal efforts to decriminalize sex work.
The committee is here because the Supreme Court of Canada struck down a series of harmful laws in the Bedford case, but so far this week we haven't heard very much about the case. There are some clear principles in Bedford that must govern the enactment of any new law that makes criminal laws on sex work, and those principles must guide this committee. We'll deal with three of these.
First, there's a principle from Bedford that says that a criminal law that gets in the way of a sex worker's taking steps to improve the safety of her work is unconstitutional because it interferes with the security of the person. The Supreme Court of Canada found this in relation to the communicating law and said that if the law had stopped one person from taking basic steps to avoid being picked up by a serial killer, that harm was established.
There, the law was the former communicating law, but this bill proposes to enact that exact same law essentially without any meaningful amendment. Yesterday in the hearing, there was actually a good amount of consensus among witnesses with different views on how to legislate in this area about the communicating provision, saying that it is in fact unworkable for various reasons: it's vague, it's contrary to Bedford, it's harmful to sex workers, and it's probably unconstitutional.
In Bedford, the court similarly concluded that a law that overreaches its purpose and captures third parties who provide helpful assistance and not harmful exploitation is unconstitutional, again because it gets in the way of a sex worker's right to take the necessary steps to improve the safety and the dignity of her work. But with Bill C-36, the procuring and the materially benefiting provisions are still going to isolate sex workers and will mean that they are unable to enter into business relationships that are deemed part of a commercial enterprise, even if those relationships are safety-enhancing. This is exactly what the court was concerned with in Bedford when it struck the “living on the avails” provision. This new law resurrects that concern.
The second principle from Bedford that must guide you is that access to indoor spaces is safer. The courts at all levels agreed in the Bedford case that being able to work indoors is less dangerous, based on all of the evidence. This is because it allows sex workers greater control over the conditions of their work and their environment and allows them access to more safety strategies. Yesterday, comments were made in the hearing suggesting that it doesn't matter whether sex workers get to work indoors, because sex work will be dangerous wherever it takes place, because the cause of the harm is the purchaser, not the laws that restrict their operation.
But with respect, those points are incorrect both in fact and in law. These arguments were rejected by the Supreme Court. The courts all agreed that indoor work is safer, after considering a massive record of expert evidence.
Furthermore, the court determined that the law doesn't have to be the only cause of the harm; it has to have a sufficient causal connection to the harm. The principle is that Canadian laws cannot contribute to the dangers faced by sex workers. This law will do that.
The third principle that I highlight is that the laws must be understood as working together as an interlocking scheme. In Bedford, the court expressly directed the government that, if it decided to legislate in this area, it must do so with an understanding of how all the laws worked together. To properly understand how this legislative scheme will work in practice, you can't just look at the potential effects of one provision without understanding how it will interact with another.
With Bill C-36 you must think about how, for example, the advertising restrictions and the criminalization of the purchase of sex are going to work together. We say that together those mean that sex workers will not be able to work indoors.
So I urge this committee to examine that decision and consider these principles and come to the same conclusion that I do, which is that Bill C-36 does not comply with the word or the spirit of Bedford.
Some 220 lawyers and legal academics have written to this committee and to the government and have expressed their concerns that the bill risks breaching a number of charter rights. This committee must remember that you have an important constitutional purpose: lawmakers are required to ensure that laws are consistent with the constitution before enacting them, and you must take the time necessary to do that. Canadians are trusting you to ensure that you do not pass another law that makes the same mistake of putting sex workers into grave or graver jeopardy. But with this bill, the government is acting with unjustified haste and without sufficient consideration. Doing that is creating a new and even more harmful and unconstitutional legal regime.
Bill C-36 will not stand up to constitutional scrutiny on that basis, because its provisions are over-broad, they are vague, as has been the subject of much discussion in this committee, and they create harms that are grossly disproportionate to their objectives.
We urge this committee and Parliament to reject this bill. It would cause the same and potentially graver harms to sex workers as those under the laws that have been struck down. We're not just warning you about the law's flaws in academic legal terms. These are flaws that will result in violence and tragedy for the community of sex workers I represent, women who have faced horrendous forms of violence as a result of Canada's prostitution laws. I know that is not an outcome that anyone in this room would like to see.