Justice Committee on July 10th, 2014

[The Chair, Conservative, Mike Wallace]

Thank you, Ms. Smith-Tague, for your time, and thank you for those answers.

Our final questioner for about four minutes is Monsieur Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair, and thank you to all the witnesses for your testimony. It's very helpful.

I want to talk to Ms. Big Canoe about the Gladue principle. You obviously followed what one of the justice officials, Mr. Piragoff, said. I got the impression from his testimony that he was saying that the Gladue principle was a constitutional override that applied to all laws. Have you done some research on that as to whether or not he's right? There seems to be a school of thought that it is.

[Christa Big Canoe]

Mr. Chairman, if I may answer the member's question, it's not a constitutional override per se. The Gladue principle is derived from another provision in the Criminal Code. The Supreme Court of Canada enunciated it first in Gladue, and then reiterated more recently in Ipeelee in 2012, what those principles are and what a court has to take into account. Where there's a problem is when you look at sentencing. You'd almost, by analogy if I may, look at it as a conflict of laws of sorts, not on the same scale as the jurisdictional ones, but as it relates to two provisions, and specifically as it relates to the sentencing or other applications of Gladue to aboriginal offenders.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

What is wrong is the overrepresentation of—

[Christa Big Canoe]

The overrepresentation is actually well known and documented in terms of.... This is where Ipeelee, the decision by the Supreme Court, comes in, recognizing those principles in sentencing, and even beyond sentencing, when they have to be considered. So one of the questions the committee should be asking is this. Does this legislation look to or meet some of those principles, particularly as it applies to any of the mandatory minimums or criminalization such as 213?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I follow your thought. I was going to ask you if the law was made specifically subject to the Gladue principle would it have changed your point of view with the law? But I get the impression that you're against criminalizing the johns and the pimps because somehow you believe that it will increase the risk of danger for the prostitutes. That was my take on it.

[Christa Big Canoe]

There are two issues there, actually. The one is, yes, you characterized that correctly. But also, because there are not good definitions around the exploitive nature or relationship, where there are relationships that are not exploitive, there's potential to also prosecute or criminalize aboriginal people who are in non-exploitive or support capacities of sex workers. You don't prevent overrepresentation or over-incarceration by incarcerating more aboriginal people.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I think there are some exceptions to that, but I take your point.

I'm a little taken aback, because, look, the very object of this is to put an end to paid sex, and we've heard time and time again that prostitution is equal to human trafficking. You know, there have been very few convictions on human trafficking laws—it's very recent—but I'm told there are 187 cases before the court. So we have the aspect of 213, which basically I guess would permit to charge the women. We've heard the testimony of many police officers, Mrs. Pond being one of them. Okay, they charge them to separate them from the pimp to get their testimony, to basically form the foundation of an exit strategy for the women.

If we don't have that power, what is the most persuasive way for aboriginal women to somehow get out of the market, to have that exit strategy? Please don't say “more money”. Specifically, are there programs in your mind that are effective?

[Christa Big Canoe]

Mr. Chairman, if I may answer the member's question, thank you for asking it, because I think the committee needs to recognize that an exit strategy does not have to tie to criminality or to the Criminal Code or to police enforcement. It's often situated with the best agencies, or aboriginal agencies, or agencies that are familiar with the organizations and the communities, so that's one means. There's always a money pitch, right?

But even without the money, it shouldn't be a mechanism of criminal law to assist the social determinants of health, to assist the right programming. So in criminalizing it, we actually do harm. It touches on section 7, life, liberty, and security. If you're incarcerating the sex worker or as other people are defining them, the victim, in order to save them or protect them, you're still breaching their constitutional section 7 rights. There has to be a better means, a better mechanism. Exiting should be done at the choice of sex worker, and with the communities that are best equipped to handle their geographical or demographical groups.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

That being the case, what in your mind is the most effective way of accomplishing the exit strategy? I know that's a tough question, but we're here to listen and learn.

[Christa Big Canoe]

Fair enough. I'd have to look to my practice experience and knowledge of community. One of the big driving factors is accepting clients and individuals as they are and in the place they are in. When we have clients who want assistance, we provide assistance and referrals to shelters and other services. But when they don't want that type of assistance, we're not forcing it upon them.

So I don't have a perfect answer for that question, because it's not an easy question.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

No. Could I ask your indulgence to reflect on it a little bit and forward your views to the clerk, please?

[The Chair, Conservative, Mike Wallace]

Thank you.

Thank you very much for those questions and answers. That is our time for this panel.

I want to thank our witnesses for joining us today. This is the last day we will be having witnesses come to talk to us about Bill C-36. Your testimony today was excellent and helped us tremendously.

With that, we will adjourn until the next meeting, which is at one o'clock. Thank you very much.

The meeting is adjourned.