Evidence of meeting #37 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, Department of Criminology, University of Ottawa, As an Individual
Oh, yes.
Like the case with living off the avails, people who provide services.... It was always the case, under “living off the avails”, that if you offered services that were not related to the sex work, you were not criminalized. The baker, the doctor were never criminalized even under the previous—
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
This would include the security guard. This would include the receptionist.
Professor, Department of Criminology, University of Ottawa, As an Individual
No, it wouldn't—not if it occurs within a commercial enterprise.
Specifically, the law says:
286.2(5)(e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.
What I understand—and I believe this is the understanding of lawyers who have looked at this—is that if an individual is providing services, including perhaps driving and a receptionist service to an independent sex worker, that person would in fact benefit from the exemption.
But for anyone who provides those services within the context of a brothel, a massage parlour, even a collection of several sex workers working together, that would be a commercial enterprise and it would be criminalized.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
It would be criminalized, in my reading, if it were exploitive. However, if it were entered into on the basis of a fair market value, I would direct you—if you have a copy of the act there—
Professor, Department of Criminology, University of Ottawa, As an Individual
I do.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Great.
—to proposed paragraph 286.2(4)(d), which is the exception, and I'll read it for your benefit:
in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.
The fair market value....
Of course, proposed subsection 286.2(5) goes on to create an exception if somehow they have coerced these people: if they've threatened them, if they have abused them, if they have provided them with a drug, if they have somehow caused them to do it as a result of violence. So—
Professor, Department of Criminology, University of Ottawa, As an Individual
Or if they received the benefit in the context of a commercial enterprise that offers sexual services for consideration....
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Prostitution where they are being coerced, but not in the context—
Professor, Department of Criminology, University of Ottawa, As an Individual
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Well, I take exception. We'll have to agree to disagree but that's clearly not reading what the act says.
Professor, Department of Criminology, University of Ottawa, As an Individual
Well, proposed paragraph 286.2(5)(e) says:
received the benefit in the context of a commercial enterprise that offers sexual services for consideration.
That's one of the exemptions.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
No, I believe your reading is mistaken.
I'd like to go to Ms. Sigurdson.
Yes, of course, organized brothels are exploitive, and that doesn't mean that you can't hire a bodyguard and you can't hire an accountant. It does not mean that you cannot hire a driver if you're paying fair market value, and they're not coercing you. That's the reading there.
I pass to Ms. Sigurdson. You're saying that this act is not a response to Bedford. I would challenge you on that. I would say it's a challenge to Bedford, and it's not only a challenge to Bedford, but also goes further than that in the sense that it's now a paradigm shift. Prostitutes are now being treated as victims far more than ever before, which is a major social change of thought.
The Supreme Court of Canada, Justice McLachlin, said:
Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes....
You've told us that in your view the restrictions on advertising would somehow render it impossible for the prostitutes to work inside. But are you aware of the exception that provides that prostitutes can advertise, providing that it's for their own services? How would that stop them from going inside?
Lawyer, Pivot Legal Society
That would stop them from going inside because one of the problems with that provision is that, like the provision you were discussing with Professor Bruckert, it's not actually well-defined what the government intends to capture by that provision.
Like many portions of this bill, this is a very vague law that has the potential to be interpreted very harmfully. Canadians are entitled to know the law that they are operating under. But it's not clear in the communicating provisions what it means to be in a place where people under 18 might be. It's not clear what type of advertising is captured. It's not clear what a “legitimate relationship” is. It's not clear, actually, what “sexual services” are, as defined in the act.
In terms of the advertising provision, if a sex worker is not able to advertise effectively, and that includes being able to communicate the terms of his or her services, describing the types of work that he or she is willing to do.... As the discussion in the committee has shown, some members are pretty clear that the advertising that's captured includes advertising where a sex worker says expressly what he or she is willing to do.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
But you would know that the canons of interpretation in criminal law would be interpreted very restrictively in favour of the accused.
My suggestion to you is that if the prostitute cannot design a web page, the exception that is provided in proposed paragraph 286.2(4)(d) would exactly entitle someone to hire someone to do the web page for them, provided they paid fair market value and no more than anyone else would get in an ordinary commercial context, and provided that the person does not somehow coerce the person to buy their services in creating the web page.
Lawyer, Pivot Legal Society
And provided that the service is not provided in the context of a commercial enterprise. So we don't know that a sex worker operating independently as a person who advertises her services is not a commercial enterprise. She's making a commercial benefit from selling her sexual services.
The provision you're discussing is one of the elements of the vagueness of this law that makes it unworkable in a way. There have been government lawyers at the committee who have said that it's possible, that we wouldn't be able to render any convictions under these laws, because it would be difficult to make out the elements of proof required.
I do know the canons of legal interpretation, and the first canon is that when you read a piece of legislation, the words that are written are the first guiding information about how you should understand the law. Here the guiding information shows that there's a lot of pieces of information about how this law is going to work that we don't have. That means that there's a lot of discretion.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
A prostitute could sell her own services, provided that she's not being coerced as a result, and benefit as a result, provided she's not being coerced or threatened. She could run her own enterprise and hire those whom she wishes to help her, provided it's at a fair market value. All of this is provided that she is not being coerced, threatened, or somehow gotten to take drugs so that's she's forced to pay for them.
That is my understanding of the act.
Lawyer, Pivot Legal Society
That's not what the exception of the commercial enterprise says though. If that's what the government intends--
Conservative
Lawyer, Pivot Legal Society
—it should make clear that the material benefits section, where it says—
Conservative
Lawyer, Pivot Legal Society
—received the benefit in the context of a commercial enterprise that offers sexual services for consideration, falls under the exception. Subsection 5 does not apply to a person who commits an offence under section 1 if that person received the benefit. It simply says “commercial enterprise“.
If the government intends it to mean a coercive commercial enterprise with certain features, the government is entitled to legislate that clearly, but as it stands this is a vague provision.
Conservative
The Chair Conservative Mike Wallace
Thank you very much. I love a couple of lawyers going at it, but it's time to move on.
Our next questioner from the Liberal Party is Mr. Casey.
Liberal
Sean Casey Liberal Charlottetown, PE
I want to stay with the same topic, with a little bit of a different angle because it appears that there are at least a couple of members of Parliament on the other side who seem to be confused about advertising and hosting advertising.
Dr. Bruckert, this is for you. Ms. Sigurdson, feel free to chime in.
If a sex worker advertises in a newspaper, a website, or a phone service, subsection 286.4 basically finds that the newspaper, website, or phone service has committed a criminal offence. My friends over here would have you believe that there is an out. Is the out or the exception for a fair market value transaction available to a newspaper, website, or phone service in those circumstances?
Professor, Department of Criminology, University of Ottawa, As an Individual
My understanding of the provision about advertising sexual services is that anyone who provides that service.... The sex worker would not be criminally charged with doing the advertising, but there would be no place for her to legally advertise. This is the problem. We're trying to figure out where she could legally advertise. Are we going to have a situation where people are putting cards up in phones booths? It's not even clear if that wouldn't be communicating in public, so that becomes even another grey area.
One of the things Emily Symons was speaking about this morning was the fact that by prohibiting advertising you're also taking other things away from sex workers. They can advertise, but they advertise on places like CERB. Those places offer sex workers spaces where they can communicate, where they can share information on bad dates. So not only are you denying them the ability to advertise, but you're actually taking away a security mechanism as well.
For me, it's very clear that sex workers can advertise, but they won't have any place that will accept their posts.
Lawyer, Pivot Legal Society
That's exactly how I read it as well, that the party that would be captured under that provision would be the host of the advertisement, not the sex worker herself. It would be the entity, or the website, or the newspaper publisher who would be captured because they are doing the service in the context of the commercial enterprise.