Justice Committee on July 8th, 2014

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Back to you, Dr. Bruckert.

I know you were here this morning when we heard the chief of the Calgary police say that a conviction under a summary offence does not result in a criminal record. I don't know if you shared my reaction, but I'd be interested in yours first. Secondly, can you share your experience on what actually does happen when there's a sweep or when people involved in the sex trade are criminally charged

[Prof. Christine Bruckert]

We did research here in Ottawa with POWER, the sex worker rights group, where we looked at what happens here in Ottawa. What we found with the street sweeps is that, first of all, you have to look at the way they police. They lay charges for soliciting, but they also lay charges for a series of other events. What ends up happening, though, is that a sex worker gets taken in and gets held. A client will often get released with a promise to appear, but the sex worker gets held. That means she's actually detained. If she's detained until her bail hearing the next morning, that means she is fingerprinted. There is a record of her detention.

If she gets released, even if she gets charged and say she gets a summary conviction—and I do believe there's a criminal record from that—what ends up happening here in Ottawa and many other cities across Canada is that the sex workers have red zones imposed. These are essentially zones where they're not allowed to go. It becomes, of course, a revolving door. Sex workers breach their red zone conditions and then they become charged with breach of conditions. Breach of conditions is a summary offence, and then they do end up with a criminal record. It goes on like that.

Here in Ottawa we happen to have a very high rate, in fact, I think possibly the highest in Canada, and certainly the highest in Ontario, of breach charges. But the consequences of breaching are very high. Also, I thought it was quite interesting that the police chief spoke a great deal about helping victims, but then towards the end of his conversation he spoke about the need to police and to control the nuisance. That's certainly the mentality, and you do have a lot of over-policing, so sex workers are charged with loitering. They're charged with soliciting. They're charged with a series of different things, which make it very difficult for them to ever get out of the criminal justice system.

I'm not sure if that answers your question.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Ms. Sigurdson, first of all, thank you for this letter of July 7 with the 220 signatures raising concerns about the constitutionality of the bill. I have a practical question with respect to a constitutional challenge, because I realize you and your firm were involved directly in the Bedford case, and that the Bedford case actually started in 2006-07 and the laws were struck down in late 2013. Being a lawyer, you can appreciate a hypothetical question. I want you to assume that this bill is going to pass; that the offer of amendment isn't genuine; that it will pass without amendments; that it will receive royal assent in December of this year; and that, as the Minister has rightly anticipated, it will be challenged. What happens after that? How long do we live with this bill that you and 219 of your colleagues think is constitutionally flawed before it gets its due as well?

[Elin Sigurdson]

The course of these things can take years. The Bedford case and the case that I was also involved in, brought by Downtown Eastside Sex Workers United Against Violence, took seven years. So a brand new case could conceivably take up to that long.

I think that two things to point out in that regard are, first, that the government should take very seriously the fact that this could be subject to challenge because of the responsibility to act constitutionally. But also because the burden of making a new constitutional challenge shouldn't be put on sex workers, civil society, and advocacy groups who are genuinely concerned about the validity of this law, I think the government should revisit its position on advancing this to the Supreme Court of Canada on a reference.

I think the other thing to note in that regard is the December 20 one-year stay period. That isn't a drop-dead deadline for the government to be able to legislate. What happens on that day is that three harmful laws will fall, but it doesn't mean that government is precluded from being able to make law in relation to prostitution. So I say that it's the responsibility of this committee first, and of the government, to ensure that what is being passed passes muster because lives are at stake. This is a really important policy issue that we could be leaders on, but this bill isn't a leadership bill. This is a bill that is going to take us far back.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey, and thank you for those questions and answers.

Our next questioner is Mrs. Smith from the Conservative Party.

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

Thank you.

I just wanted to clarify something. Ms. Boivin said that the French assembly rejected the bill. Actually, the French assembly passed the bill on November 29. It was the French senate that rejected it today. They gutted the bill in committee.

Going on, I have two questions, one for Mr. and Mrs. Smith and one for Diane Redsky.

Linda and Ed Smith, you wrote me a letter. I just give you my profound condolences. The story of your daughter is a story I've heard a lot across this country. It's very common.

You said something very profound in your letter to me in support of Bill C-36. For the first time in Canada we are going after the predators, the johns, and the pimps, and making the purchasing of sex illegal. Do you think that would be very beneficial to Canada? Can you answer that for me?

[Linda Smith]

Sure. I will offer my two cents' worth.

The man who pimped our daughter was known to the police. He was known to be connected to criminals in other places in Canada. He was part of a collaboration of criminals who were running girls. Yet she would not testify against him because he was her lover boy. He controlled her from that perspective.

When we brought forward his name to the police, they started to look for Cheri on the streets of Regina and caught her in a sting. But it was Cheri who was arrested, not her pimp.

To our knowledge, none of the men who bought our daughter have ever faced any charges for using her. And this is our daughter. We feel very strongly that the buyers of sex need to be penalized for their abuse and degradation of women and girls.

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

Thank you so much for your advocacy. And thank you for going into the schools with this awareness program and for working with the johns on this.

My time is limited. I now have to go to Ms. Redsky.

I have to say that the foundation has done amazing things. Congratulations for that event yesterday. The awareness of human trafficking is going to be donated voices of girls who are actually trafficked all across this country.

I have two questions.

The foundation's task force heard from many stakeholders, including police and community-based organizations. I would like you to comment. First of all, were there any minors? In this committee we heard that....

I'm starting to think, just follow the money, whoever is getting money from this. We hear “Oh, there's nobody under 18.” I would like to hear what the task force heard.

Also, you mentioned that the $20 million proposed for the bill is inadequate. I know that the Canadian Women's Foundation is a funder in this area, in its private and public partnerships. Is the foundation looking to continue work in this area, and if yes, how do you see your role?

[Diane Redsky]

Okay. Well, thank you.

First of all, the Canadian Women's Foundation's task force is deeply concerned about what we learned of what's happening in Canada, particularly to vulnerable youth. Youth are specifically targeted by traffickers. The more vulnerable you are, the more you're targeted. I would also say that any girl can be at risk for trafficking.

We've learned through our consultations with the 260 organizations and 160 survivors that what is common is that they were first recruited and lured and trafficked as young as 13 years of age. That is critically important to the work that we're doing.

There's also this misconception in Canada that young women and girls who are forced into prostitution are to blame for their own sexual exploitation. That's part of the big shift that also needs to happen.

We also learned that there's a huge opportunity to look at the child welfare system, and have that consistent across Canada, because that contributes to the little or no safety net for minors when we're looking at safety and protection.

We did release a campaign yesterday. I just want to read one of the voices of the campaign. It is a campaign to donate your voice called Give My Voice. This is a campaign to raise awareness of the realities of sex trafficking. We focused on minors because they are the most vulnerable, and we all really need to have all hands on deck when it comes to protecting young people.

The campaign is designed with quotes given that people can read. This is one of the quotes. This a common reality for young people:

I met him on a subway last year at the beginning of grade 9. He was cute. We started going to parties and I tried drugs with him. Then one day he told me I had to repay him for everything. I didn't have any money, so he forced me to do things with other men. I didn't want to do it, but he says he'll hurt my family if I don't.

The importance of that is to raise awareness about the complexity of the coercion and the force and the intimidation that young people, as young as 13, are experiencing at that age, and which then carries on.

I'll quickly comment on the funding piece, because that is critically important. The Canadian Women's Foundation, since we started working on sex trafficking in Canada just three years ago, has invested $800,000 into the issue. We learned a lot about what's there and what's not there. We know that a $20-million investment may be the beginning, but it's not enough.

Also, we see it as an opportunity for the Canadian Women's Foundation to partner with governments and other foundations. In fact, we were doing that as we were going along the way. While the $20 million sits there—and we would love to see more of it—it is not just a government issue but an issue that affects all Canadians. There's an opportunity for the private sector and other funders to be involved on this issue to end sex trafficking in Canada.

[The Chair, Conservative, Mike Wallace]

Thanks very much. Thank you for those questions and answers.

Our next questioner, from the New Democratic Party, is Madam Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much, Mr. Chair.

To all the witnesses, thank you very much for your testimony.

As my colleague so eloquently explained, France's Senate—to elaborate on what she said—has just decided to get rid of the part of their prostitution legislation that criminalizes those who procure sexual services. Be that as it may, let's put it aside for a moment.

One of the reasons the senators wanted the legislation examined in greater detail was that the resources deployed to go after johns could be far more effective if they were used to combat procuring, human trafficking and sexual exploitation. That may be what prompted them to study the provisions of the legislation in greater detail.

My question is for Ms. Redsky.

What is your take on that idea?

[Diane Redsky]

About having more studies on criminalizing...?

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Well, no. Actually, one of the reasons they decided to strike down one of the articles of the law that was criminalizing clients is that the resources would be more fruitful or effective if they were given to fight prostitution and human trafficking. I simply want your input on that statement.

[Diane Redsky]

I think there are a lot of opportunities to generate revenue for services to eradicate sex trafficking in Canada. There are a variety of ways within provinces, within municipalities, to raise revenue. Again, our expertise is on sex trafficking and looking at ways in which we can use systems that currently exist. In one province we heard only yesterday that there is a human trafficking act under which there is an opportunity for a victim to sue their trafficker. There's also civil forfeiture, which is an opportunity to use those resources and put them into services.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Great. Thank you very much.

My second question would be for Ms. Sigurdson. My colleague talked a little bit about the letter that you signed with 239 other eminent lawyers or organizations. I would like you to elaborate on this letter and its content and what brought together all 240 people to write to the Prime Minister on his approach.

[Elin Sigurdson]

The letter expresses our concern that the bill as designed is not going to achieve positive effects, but is actually going to have unconstitutional effects in much the same manner that the laws before Bedford had. I think this is a rallying call for people in the legal profession for a number of reasons. One is that many of us are very concerned about ensuring that our laws aren't used to make the lives of marginalized people much worse.

Another is that there's a real need for us as a society, and for you as parliamentarians, to have a very strong focus on the rule of law. One of the principles of the rule of law means taking the guidance of the Supreme Court of Canada on what it said was really, really problematic about the old laws, and making sure that this doesn't carry over into the new provisions. This letter essentially states that the combination of laws advanced is going to result in the exact same problems.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much.

I think it's very important because we've seen that over and over again with the government presenting bills that they pretend will help vulnerable people, but actually know are unconstitutional. In effect they've taken vulnerable people hostage, knowing that the law will be contested before the courts so vulnerable people and victims won't have justice. We saw that with Bill C-13 on cyberbullying, where the real victims of cyberbullying will actually not get justice because we already know that this law is going to be contested before the courts.

I think it's an important point that we all share the same vision of wanting victims of sex exploitation and human trafficking to be helped, but even the Minister said it in front of the committee that he thinks his law will be contested. So I think it's an important point to raise, no matter which side we sit on, that victims won't have justice until the government listens to legal opinions or opinions of organizations.

My last question would be for Mr. Cassells. It's actually about the same question I asked Mrs. Redsky, that the French Senate said the resources given to the police to criminalize johns would be more effective if they were given to fight human trafficking and prostitution. What would you say to that?

[John Cassells]

I think it is a very important issue, to go after those who would intentionally exploit our young people—the pimps and the traffickers for sure. At the same time, you don't want to put all your eggs in that basket; you don't want to focus completely on that, because if you can reasonably cut down on the demand.... We have seen in other places in the world demand cut in half over the course of a decade, and when you have that happen, you have to understand that in Canada, our most vulnerable people who are drawn into the sex trade are most commonly teenagers, and their young lives are destroyed. If we can take the countless number of these and cut it in half, that would have a huge humanitarian impact on our own soil.

Yes, I agree, let's continue to strategize as to the best procedures to bring the traffickers to justice. At the same time, if we can make the problem half as big and are going to have half the number of traffickers and half the number of exploited young people, that's certainly the way to go.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner, and I think our last one for this panel, will be from the Conservative Party.

Ms. Ambler.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you.

Mr. Chair, I'd like to share my time with Mr. Dechert.

[The Chair, Conservative, Mike Wallace]

It's your time. You do what you want.

Are you going first, Mr. Dechert?

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

Just briefly, I want to ask a question of Ms. Sigurdson.

Ms. Sigurdson, you took us through the material benefit provision and you mentioned proposed paragraph 286.2(5)(e)—receiving a benefit “in the context of a commercial enterprise”—and said that it is going to make a prostitute who sells her own sexual services guilty of an offence. But you didn't mention proposed section 286.5, which says:

(1) No person shall be prosecuted for (a) an offence under section 286.2

—which is the material benefit provision—

if the benefit is derived from the provision of their own sexual services; or (b) an offence under section 286.4

—which is the advertising provision—

in relation to the advertisement of their own sexual services.

Then, for further clarification, proposed subsection 286.5(2) says:

No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services.

We also have proposed paragraph 286.2(4)(d), which says that anyone can supply any service to another person who is providing sexual services in cases in which that service is proportionate or the fee paid “is proportionate to the value of the service or good” provided.

Why would proposed section 286.5 be there, in your view, if the purpose of the government were to make the selling of sexual services by an individual prostitute illegal?

[Elin Sigurdson]

Let me clarify my answer.

First of all, I don't think what I was describing was a sex worker being susceptible to charges. The question from Mr. Goguen was about what is stopping a sex worker from being able to advertise. The answer is that a person she is retaining to do the advertising—and we were discussing a web designer or a web service—would be someone, as you're indicating, who could be hired in the context of normal terms of a commercial exchange. The problem is that under proposed section 286.5, proposed section 286.4 does not apply to those who are providing those services in the context of a commercial enterprise.

If that sex worker is deemed to be conducting a commercial enterprise—

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

A commercial enterprise, for your edification, refers to an organized brothel, a massage parlour, a strip club; it is not the individual prostitute providing her services or a cooperative between two, three, or more prostitutes working together in their own space, where they're sharing expenses equally. That's what you're not understanding, and to say anything different would, in my view, be absurd.

[Elin Sigurdson]

I understand that this is your vision, Mr. Dechert, but if that vision is not actually expressed in the legislation, who is to say that it is—?