Justice Committee on July 9th, 2014

[Josh Paterson]

Thank you, Mr. Casey.

We don't take a great deal of comfort in the constitutionality of this section as I said in my remarks. We do think it is overly broad.

Certainly part of the language here was borrowed from elsewhere in the code, but the government has unfortunately left another important part behind. We're only borrowing half of that provision, and if this provision here were to say something that narrowed it so closely to swimming pools or daycare centres, perhaps I might come to a different conclusion as to how I think this would go constitutionally.

As it stands, even indoor venues could potentially be caught by this because they only need to be next to a public place where children might reasonably be expected to be found. I have a hard time thinking of anywhere—for example here in downtown Vancouver or in Ottawa, or anywhere else in a major urban centre—that might not somehow fit into this great, capacious definition that's been provided for us here.

[Sean Casey, Liberal, Charlottetown, PE]

One of the constitutional aspects that troubles me that you didn't speak to or I don't think you spoke to, and I would invite you to do so, is that there's a reverse-onus provision in the material benefits section, which I would argue violates the presumption of innocence. I can refer you to the section, but I expect you have it. Do you have any opinion, any comment to offer with respect to a potential charter challenge in this respect?

[Josh Paterson]

Thank you for the question, sir.

Anytime there is a reverse-onus provision, we're put in potentially more difficult constitutional waters. I'm just pulling it up here on my computer. Of course, there is a presumption in that section that you are guilty of a criminal offence under certain conditions, and the courts tend to frown on those kinds of presumptions. We have as a tradition in our law, the presumption of innocence rather than the presumption of guilt, is generally what the law favours. It's certainly what we favour as an association, and so we certainly have a concern about that piece as well.

I might add that there were other pieces too in there that we have some significant concerns about. The whole piece around providing services proportionate to their value, this kind of thing, as one of the exceptions to criminality for deriving a benefit—we think that is a very difficult exercise for police, for the crown, for the courts to engage in some sort of economic analysis of whether the service, say the secretarial, or the security, or whatever service of an individual, is hitting the mark in terms of fair market value.

To talk about the negative of that, which is if relationships are clearly exploitative and otherwise criminal, might be a better way of putting it.

The more you read this act, the more things come out where there could be wildly different interpretations, which I think make it very difficult for people engaged in sex work, and make it very difficult for the police to really understand what it is they are being asked to follow.

[Sean Casey, Liberal, Charlottetown, PE]

To the witnesses physically present here in Ottawa, once again we have a unanimous panel of witnesses with respect to the problem in this bill: the extent that it criminalizes sex workers or prostituted individuals, depending on which language you prefer, in section 213. All of you have said, either in your written briefs or in your testimony, that that is a problem.

Some of you may know that the only defence to that we've heard in the testimony this week, other than from the minister and his officials, is that even though we have the right to lay a charge or to give a judicial record of conviction—I'll be careful with my language—to a sex worker or a prostituted person, we don't necessarily exercise that right. We use it as a tool to get to talk them, so we can separate them from their pimps or from their bodyguard, and by holding out the prospect that we're going to charge them, we can get to talk to them.

To each of you, does that make it okay?

[The Chair, Conservative, Mike Wallace]

Who wants to start?

[Trisha Baptie]

May I ask you to clarify it, just to make sure I understand the question? You're asking if we agree with section 213 staying on, because police say they need it in order to exit a woman from a precarious situation, that it's a tool they can use to do that.

[Sean Casey, Liberal, Charlottetown, PE]

Or at least to hold her long enough to talk to her about it.

[Trisha Baptie]

I would say that the police can charge the men as a tool to keep the woman in a situation that may be safer than the one she was formerly in. I don't think there need to be any criminal sanctions against the woman whatsoever in order to provide her some level of safety. I think criminalizing the woman in any way will actually impede the relationship that can be formed between the prostituted woman and the police officer.

I know that, for me, the relationship I had with a police officer by the name of Dave Dickson in Vancouver was because he didn't take us in and because he treated us with respect.

I don't think we need to have section 213 on the books.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

[The Chair, Conservative, Mike Wallace]

Does anybody else want to speak to...?

[Larissa Crack]

I have to fully agree. Within the exiting strategies I used.... I went through a treatment program that had a police officer who treated the women with respect and who worked really hard at making these relationships. He became the middle person between the rest of the police force and the women, just creating these relationships.

It allowed women to talk to them and to open up. Women were more able to go through the court processes...for pimps and for their johns...when they had a police officer beside them who was supportive and understanding, and as she said, treating them like human beings and not criminals.

I think the government has made it clear. It's understood, within Bill C-36, that women are seen as exploited. So to turn around and criminalize people who are exploited doesn't make sense on any level.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

That's the time. I'm sorry, Mr. Casey, but that's all we have time for in your section.

From the Conservative Party, Ms. Ambler.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you, Mr. Chair. And thank you, to all of you, for being here today. We very much appreciate your time, the effort you made to get here, and hearing your stories, which are very important for us to hear.

Ms. Baptie, perhaps I will ask you about something you talked about, the fundamental shift in attitudes. I'm not sure if you used the words “culture change”. But some of our other witnesses have talked about the culture change that's needed, which, as has been pointed out, is pretty much diametrically opposed to what other witnesses are saying.

I have a 15-year-old son, and I would prefer he grow up in a country where buying sex is not legal. We heard this morning from a witness from Australia who said that in Australia it's not that way. It's a case of it being completely acceptable on all sides, that it's all good and that it leads to a freer attitude and to clients who are respectful.

Has that been your experience, or do you think we need this fundamental shift? Do you think it will actually help women and people who are involved in prostitution?

[Trisha Baptie]

I think we have to have a fundamental shift. I think we need a core shift in the way men view women and in the way women are viewed.

I was in Sweden. I actually went to Sweden maybe three or four years ago to do a film with the National Film Board of Canada called Buying Sex. We looked at the shift in attitudes in Sweden since the law had come into play.

I wanted to talk to the teenagers, because they are the ones who had grown up under this new model of law. I wanted to know their views on prostitution. I talked to some painfully middle-class, middle-of-the-road teenagers. They view prostitution as violence against women. It's not something they want to see tolerated in their country. They even went so far as.... One girl said that she wouldn't date a boy who had ever viewed pornography. She had so much confidence in what she could expect from men that she could make that a demand for herself.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you.

Tell me, what do you think when you hear Ms. Kiselbach's story, which is so different from your own, a story where we hear her talk about pimps not being all bad sometimes, and that the relationships aren't all abusive? What do you think about that?

[Trisha Baptie]

I think that is Ms. Kiselbach's experience, and I'm not here to argue with that. I can only talk from my perspective and say that I've never met a pimp who was beneficial for a prostituted woman. You're economically relying on someone else for your well-being,

I don't think that will encourage them to leave the trade or live a healthier lifestyle or anything like that.

[Stella Ambler, Conservative, Mississauga South, ON]

Right, thank you for that.

I do want to give you an opportunity, Mr. Kiselbach. I'm relieved to hear that there are stories, because we haven't heard.... Well, we've heard some sex workers say they chose it and that they're happy about their choices. You're clearly not dim-witted, obviously, and you're happy and healthy, and you've told us that prostitution is not exploitative by nature.

Do you think though that you're a typical case? Do you think you're a typical prostitute, sex worker, or do you think the folks we've heard from, like Larissa and Heather and Trisha, and cases of torture that Jeanne and Linda deal with, are more typical experiences than your own?

[Sheri Kiselbach]

I would actually think—but I don't have great statistics around this—that I am representative of about 80%. I think about 20% are exploited and used, and that's a very sad state of affairs. I don't want anybody to be exploited at all.

But I want to make something very clear. The person I referred to as my “pimp” is not my wording. That was the only way I could get a person to protect me. In the eyes of the law he was considered a pimp, but in our relationship that person was not considered a pimp. I was not exploited or anything like that, but I needed that person to do that.

[Stella Ambler, Conservative, Mississauga South, ON]

Was this a person you worked with who helped you in your business? That's how—

[Sheri Kiselbach]

No, this was someone who was just there to protect me, because after a huge, violent thing that happened to me in which a person was charged with attempted murder, I choose to set boundaries around my sex work and what I would and wouldn't do. I no longer would do car dates, and if a person did not want to come to my home, we didn't go. I had a safety person there for me. Because of the safety person—when I was hurt without a safety person—it changed drastically when that person was there. Other things did happen that were forms of violence, but that person was there to protect me. But, unfortunately, in the eyes of the law, that person could have been, would have been, charged with living off the avails, and procuring, which he was not. It was my adult decision.

[Stella Ambler, Conservative, Mississauga South, ON]

Under Bill C-36 someone who is involved in prostitution would be allowed to hire that safety and security person, a body guard. The bill does recognize the importance of that. I would say though—

Am I out of time?

[The Chair, Conservative, Mike Wallace]

Last statement.

[Stella Ambler, Conservative, Mississauga South, ON]

It's interesting to hear that you have experienced some violence, and I'm sorry to hear that because I did think it was a happier story, but I would ask this. You told us that stigma, not sex work, is what kills in prostitution. Would you agree that in your case it wasn't stigma that hurt you, that it was a human being?

[Sheri Kiselbach]

It was a human being, but it was the way the laws are situated around me that made this human being not be a client but be a predator and have a plan and do that to me, knowing that I am marginalized and have no rights.

[Stella Ambler, Conservative, Mississauga South, ON]

Would you encourage other young women—