Good morning. Aboriginal Legal Services of Toronto would like to thank the members of the committee for inviting us to make submissions regarding this bill.
ALST, the acronym we use, is a multi-service legal agency serving Toronto's aboriginal community. Our only clients are aboriginal clients, or families who have aboriginal interests. Our guiding principles include that aboriginal individuals require equitable treatment in the Canadian justice system, access to legal and related resources within the justice system, as well as understanding of the system and their options within those systems. Aboriginal Legal Services' Anishinaabemowin name is Gaa kina gwii waabamaa debwewin, which translates into “All those who seek the truth".
The Supreme Court of Canada has granted us intervener status in 15 cases in which systemic issues affecting aboriginal peoples were addressed. As it relates to this bill, Aboriginal Legal Services' most noteworthy intervention was in R. v. Bedford. I was the counsel for Aboriginal Legal.
Aboriginal Legal Services objects to the passing of this bill because of the acute aboriginal overrepresentation in the criminal justice and penal systems, and the overall impact this bill will have on a number of aboriginal sex workers, their families, and communities.
We agree with a number of positions taken by POWER and Pivot in their written submissions, and the Lowman submission, “Tripping Point”. Because we do agree on some of those points and because I have limited time, I will only focus on two areas of concern today. We do not believe that Bill C-36 is consistent with the Gladue principles, nor is it charter compliant and consistent with precedent.
There seems to be a suggestion that two completely different and incompatible views have been presented to this committee: one from current or former sex workers, saying that the work is fine, empowering, and a completely autonomous choice; and the second view saying that sex workers are vulnerable, poor, addicted, and just surviving. From our perspective as front-line workers, not only in the Canadian justice system but in providing services—aboriginal community, justice-driven services—we say that these can both be true.
They can both be true because different people have different experiences. As my colleague and co-counsel on the Bedford intervention, Ms. Emily Hill, has pointed out to me, this committee should mostly be worried about the impact of the law on the second group, which everyone seems to agree includes an overrepresentation or disproportionate number of aboriginal people.
Another important point that Aboriginal Legal would like to make is that the government can do everything it's planning to do to support exiting for those who choose to, without also criminalizing sex workers. Neither of these groups of sex workers should be criminalized or put in harm's way because the law fails to account for their lives, liberty, or security of the person.
Our main concern that we believe the passing of the bill will raise can be talked about in two parts. The first part focuses on overrepresentation and Gladue principles, and the second part focuses on sex workers' rights to ensure safety.
Before we begin our discussions on these two points, we submit that laws and policy are not benign. We've heard in the media and through some of the witnesses here that it's not the law that rapes or hurts individuals. But we have to recognize that law and policy are not benign. Historically, laws in Canada have been used as tools of oppression that have attempted to assimilate aboriginal people. The state's legal and policy attempts at eliminating aboriginal people are significant. The treatment of aboriginal people in law and policy has arguably led to poor social determinants of health and hosts of issues that aboriginal people experience.
This was cited in “Forsaken”, the report by the Oppal commission:
The long-term impact of these colonialist policies continues to be keenly seen and felt by the over-representation of Aboriginal peoples in nearly every measured indicator of social and physical suffering in Canada.
Law is not benign; law is purposeful, and law impacts us both beneficially and negatively.
Looking at the first part, when I was talking about aboriginal overrepresentation, this bill as it currently exists will criminalize sex workers through the communication provision. There is an overrepresentation of aboriginal sex workers—which all the witnesses seem to agree on—engaged in street-level and survival sex work. The acute overrepresentation of aboriginal women in the penal system, and the harm that incarceration or institutionalization causes aboriginal women, also applies to their families and communities. What we know of specific statistics is that three out of five federally sentenced women are aboriginal women.
What we also know is that a lot of those aboriginal women start off with minor records and administrative breaches that accumulate over time and see them coming back into the system, so that when they are charged with something they get longer sentences. This is known. It's well-documented. It's in a number of reports on aboriginal men and women.
One thing that we're excluding here, because the preamble and a lot of the submissions are focusing only on women, is that we also know there's a disproportionate number of aboriginal men and transgendered individuals as sex workers. It's important to understand that aboriginal men and women are affected when they're over-incarcerated. They serve longer custodial sentences, usually to warrant expiry; that means to the end of their sentences. They experience higher levels of discrimination while they're in custody and they're more likely to receive high-security assessment by virtue of being aboriginal.
These same factors are the factors that see enforcement and police over-policing certain parts of town that have aboriginal people. These are the same factors that relate to the discrimination that we saw in the Oppal report and in other reports such as the Aboriginal Justice Inquiry in Manitoba.
The Correctional Service of Canada is not meeting legislative goals. The disproportionate numbers of street-based sex workers, including those engaging in survival sex, are aboriginal and will be affected if criminal charges occur. The survival sex workers are the most vulnerable and the most marginalized of all prostitutes, and aboriginal survival sex workers experience higher levels of violence both in terms of incidence and severity.
In the past, we've presented submissions before the Senate on various bills that have recently come in. The omnibus bill, C-10, and more recently, Bill C-394. Essentially, our largest concern is that passing this act will result in the retreat, or undermining, of the principles as set out in section 718.2(e) of the Criminal Code, which the Gladue principles derive from. One of the biggest things that we're concerned about is the increased reliance on minimum sentences. This means there's less opportunity for appropriate and fit sentences, and this prevents judges from considering them as sentencing options.
For those who are incarcerated in the penitentiary system, which is three out of five aboriginal women who are federally sentenced.... Let me restate that. Three out of five federally sentenced women are aboriginal. For those who are incarcerated in the penitentiary system, realistically, they come out worse than they went in. We know this. They come out maybe no better, but often worse, with gang affiliations and substance issues and abuses they didn't have, and then they're released into the community without proper programming. The Supreme Court of Canada, in Gladue, stated that:
It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system.
On Monday, Minister MacKay responded to one of the member's questions in that regard. He said that the law was consistent with Gladue, or that all laws have to be consistent. We respectfully disagree. The law, or the bill, hasn't taken into account the acute impact it will have on overrepresentation of aboriginal people if the communication clause that will criminalize sex workers is left in.
Based on what we know, incarceration in incremental amounts does not deter aboriginal offenders. That includes people who sell sex. The law, as it exists, and the law, as it exists pre-Bedford, doesn't deter the actual sale of sex. Arguably, what will happen is that criminalizing one element of it will do what happened in Vancouver, or the Downtown Eastside, where we saw aboriginal women largely, but a lot of sex workers, pushed into the darkened corner. These are the types of submissions that POWER and Pivot made in their written submissions, which we agree with.
In Bedford, our intervention focused on the constitutionality of section 213 of the Criminal Code. It was our position that the communicating provision violated both section 2 and section 7 of the charter and that such violations were not saved by section 1 of the charter. We also had the position that the state had a much larger role in depriving street-level sex workers' rights to life, liberty, and security of the person and that the limited choices available to survival sex workers were constrained as a result of government action, the law, and the law not being benign.
One thing that we learned in Bedford, and we've heard talked about, is gross disproportionality and it's the only thing I'm going to focus on due to my limited time. Bedford spoke to the gross disproportionality between the infringement of the law and the objects of the legislation.
The object has been recognized to protect the neighbourhoods that experience harms associated with street-based sex work. That's what was determined in Bedford. The court said that the court must balance the harms that those neighbourhoods face with harms that street-level sex workers face.
We, at the time, submitted that the inconvenience and discomfort do not reach the same harm level as that experienced by sex workers who experience violence, sexual violence, and death. Quite frankly, we don't see a difference between what the bill is proposing and the law that was struck down as being grossly disproportionate.
Simple wordmilling by saying that it's about safety and not about nuisance is not enough. It's not the true measure a court will have to balance in determining constitutionality of charter rights, and it will always have to balance the safety of the person at risk.
I'll close with what Chief Justice McLachlin said at paragraph 121 of Bedford, which is:
Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society. It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law.
It is our opinion that the scope has not narrowed so much. This committee should ask themselves whether the legislative object has really substantially changed, or has there been some wordmilling.