Thank you, Mr. Chair.
I'd like to thank all the previous witnesses for their very moving stories and recognize the courage that it takes to join this difficult discussion even when we may have different policy perspectives.
The BC Civil Liberties Association is an autonomous non-partisan charitable society established in 1962. Our mandate is to defend, maintain, and extend civil liberties and human rights in Canada. We intervened in Bedford v. Canada and we have publicly opposed the criminalization of sex work and related activities since 1978. We believe the decriminalization and regulation of sex work will afford those involved in sex work the dignity, safety, and autonomy that they deserve.
As the court remarked in Bedford, some people do make the free choice to engage in sex work, and their choices should not be criminalized. Other people, the court observed based on the findings of the trial court, do not have meaningful choices other than sex work because of financial desperation, drug addiction, or compulsion. The criminal law in our view is not the tool that should be used to extricate people who do not want to be in sex work from their circumstances. In either situation criminalizing these people, their clients, and their associated activities puts sex workers' health and safety in danger and pushes them underground into the same precarious situations that have grounded the decision in Bedford. We think that it would replace the unconstitutional criminal provisions recently invalidated by the Supreme Court with new criminal provisions that would be similarly unconstitutional.
We do think that the significant harms that can be associated with sex work, many of which we have heard very movingly about just in the past few minutes, including terrible abuse, violence, and exploitation, can be and should be properly dealt with using existing criminal provisions.
I'd like to use my limited time to focus on a few discreet issues, but I would like to say at the outset that we take the position that the new provisions taken together are likely to violate the sphere of personal autonomy protected under section 7 of the charter and the freedom of expression guarantee in section 2(b). Further, we do not believe they will be found to be justified under section 1 of the charter. We adopt Pivot's position from yesterday in these respects.
Contrary to what's been suggested in the media often, and I think in discussions here, the Supreme Court did not place on Parliament an obligation to legislate. The declaration of invalidity was suspended for a year in order for Parliament to consider what the court called a complex and delicate matter and because of the public concern that would result if suddenly the provisions were washed away without any public debate or consideration. We think it is clear from the court that there is absolutely no legal requirement to replace the struck-down criminal provisions with other criminal provisions. We would also say there is no policy requirement either.
That is not to say of course that Parliament can't place certain limits on sex work including time and place, and there may be very good reasons for which to do that.
In the rest of my remarks I'm going to focus a little bit on some of the pieces that we think are unconstitutionally vague about this bill.
At the outset the Supreme Court has made clear that a vague provision is one that doesn't sufficiently set out the area of risk to people who are conducting themselves under the law and neither does it give sufficient instruction to officials and sufficient grounds to courts to limit enforcement discretion. There are so many pieces in this bill that are unclear and I'm going to zero in on just a few.
In terms of the prohibition on communications, as the committee will know proposed subsection 213(1.1) states that it's an offence for anyone, including sex workers, to communicate in a public place or in any place open to public view that is or is next to a place where persons under the age of 18 can reasonably be expected to be present. What does that mean? Is that any building next to a public road? What counts as being present? Passing by in a car? Walking past? This is a huge area of discretion that is being left to the police, the Crown, and the courts.
Justice Canada says that even social networking sites could count if children might be reasonably able to view them.
The Department of Justice put out a technical note a few days ago saying that existing criminal law provides guidance on language like this. But if you look at the provisions that they mention the situations there are very different. Those provisions relate to prohibition orders on sexual offenders and conditions on sureties to release suspected sexual offenders. Critically the Criminal Code in those sections—and you can look at them, it's section 161(1) and section 810(1)— is substantially more precise. It specifies public parks, swimming areas, daycare centres, school grounds, playgrounds or community centres where persons under the age of 16 years are present or can reasonably be expected to be present.
There was a whole Supreme Court case on this, which found that the original language that Parliament had passed was too broad and unconstitutional. It's that precision that makes a huge difference.
Here, because this communications provision specifically targets sex workers, sex workers effectively will remain criminalized in their activities in what is potentially most of any city, downtown or suburb. The claim that this bill will not criminalize sex workers is simply not sustainable. Making matters worse, the minister has stated that this provision could even be used to criminalize underage sex workers who work in pairs because someone else who's under the age of 18 would be present. Justice lawyers, on the other hand, have said the opposite. Now, this disagreement alone confirms the confusion around this provision. The BCCLA naturally doesn't condone underage sex work, but we don't think vulnerable minors should be liable to criminal prosecution, either. In the result, we think that this provision will be constitutionally overbroad.
Turning to the material benefits provisions, I understand that there was some discussion in the committee over the last few days about what counts as a “commercial enterprise”. Proposed subsection 286.2(4) creates some exceptions from the material benefit prohibition, but proposed subsection 286.2(5) creates an exception to the exception, one that is confusing, vague, and problematic. What it says is that, essentially, if you're receiving a financial or material benefit knowing that it's from sex work, you are exempt, if you're a family member, a roommate, a spouse, in what's called a “legitimate living arrangement”. But you can be liable if you receive that benefit in the context of a commercial enterprise. There's no clarity as to what that means in the bill.
Justice Canada's technical paper says that not just brothels and strip clubs are considered commercial enterprises. It could include all kinds of associations, including informal ones. So informal groups of sex workers working for themselves but working together, sharing certain services, sharing space in common, could very well be counted as commercial. Justice's paper says that, well, they don't think that individuals and cooperatives would be included, but on the language in the test set out by the courts for defining commercial enterprises, I can see no reason why sex workers might not be targeted by this, potentially, if they come together in some sort of cooperative or organization. For this reason, the bill continues to render it nearly impossible for sex workers to improve their health, safety, and working conditions by working together cooperatively, because it appears that anyone who derives a benefit through such an arrangement could be caught by the exception to the exception and that they may be criminalized for receiving material benefits.
This is an instance, we think, where it's not acceptable to just rely on the assurances of the crown or police discretion to say, well, we don't mean to do that; we're not going to enforce it in that way. The Supreme Court has made it clear, in a case called Taylor, that rights and freedoms guaranteed by the charter cannot be left to the administrative discretion of those employed by or retained by the state. The law has to stand on its own. We can't rely on police discretion to render it constitutional.
Ordinarily I might say this could be clarified in an amendment, but there are so many problems with this bill that we think the only proper approach is to withdraw it, not to have piecemeal amendments.
Finally, I'll move to advertising. Under proposed section 286.4, the bill makes it an offence to knowingly advertise an offer to provide sexual services, but it provides an exemption for advertising one's own sexual services. It's pretty clear, we think, on the face of this bill, that this criminalizes any publication or website owner that carries such advertising. Newspapers, websites, TV, Internet service providers, or anyone else who carries ads will be prohibited from doing so. The implication here is that it will be effectively impossible to work indoors because it will be effectively impossible to let anyone know about your service. The Supreme Court of Canada confirmed that working inside was the safest way for sex workers to conduct their work.
We also think it could make criminals out of any sex workers who work collectively and advertise collectively, because they would then be participating in advertising someone else's services, not just their own. Of course the provisions around seizing newspapers and shutting down websites we think will be potentially quite challengeable under the freedom of expression provisions of the charter.
To conclude, the BCCLA recognizes the myriad social problems surrounding the sex trade today, but we continue to maintain that the criminalization of sex work is not the solution to these problems.
By advocating that Parliament not use criminal law to address sex work generally, the association does not condone coercive or violent activities related to sex work. We don't condone trafficking or juvenile prostitution. But rather than attempting to legislate moral standards, we believe that a regulatory system should aim to reduce harm against all citizens equally. Removing the sex trade from the ambit of the criminal law would properly recognize marginalized sex workers' rights and allow them to reclaim the dignity, autonomy, and safety that every citizen deserves.
Thank you very much.
