Justice Committee on July 10th, 2014

[Gwendoline Allison]

Thank you for your concerns about that.

I will just point out the infirmity with the Bedford case, particularly with respect to my clients, Asian women. As I said in my opening statement, there was a complete dearth of evidence as it related to Asian women and prostitution and the harm suffered by them. There was no analysis of equality law in Bedford.

So my concern about going to a constitutional reference would be with what the evidence would be or what the record of the evidence would be without it. I would say that without a proper evidentiary record that takes all of these considerations into effect, I would not be in favour of moving for a constitutional reference.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. McConaghy, you stated your concerns with respect to proposed section 213. We heard from a witness earlier today who advocated for an expunging of the criminal records of anyone who now carries a conviction under the laws that have been determined to be unconstitutional. Given your views on section 213 and the impacts upon victims and the impact of a criminal record, what would be your view of an amnesty such as that?

[Brian McConaghy]

I would agree with it. If it's convictions for prostitution that have been traditional and historical in our country, I don't think they have particular value, given all this committee has heard this week in terms of the vulnerabilities and the difficulties that women have getting out of that trade. To add a criminal record on top of those difficulties I don't think is appropriate, and I don't think it serves the public good.

[The Chair, Conservative, Mike Wallace]

Okay, thank you very much for those questions and answers.

Our next questioner is Mr. Dechert from the Conservative Party.

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

Thank you, Mr. Chair.

Thank you to each of our guests for being here today.

Ms. Allison, I want to speak to you specifically about employment law. I'm pleased that you're here because I think you're the only employment law specialist we've heard from all week, and I think that is pretty important.

We've heard from a number of people that if parliamentarians choose to do nothing; if we allow the laws that were impugned in the Bedford decision to fall away with the expiry of the suspension in December, there will be a flood or a panacea of employee benefits to sex workers across Canada. You pointed out that most employment law is in provincial jurisdiction, as I appreciate.

First of all, a number of people have told us that they have in the past worked or that they currently work for an escort agency today and have for the past number of years.

In your view, are they actually in an employer-employee relationship with the escort agency? What is the nature of the contractual relationship?

[Gwendoline Allison]

It's one of an independent contractor, to the extent that.... Well, there are two issues. With escort agencies they're the agents, so there can actually be service providers to the women who are in prostitution, because they manage it from that.

That is one of the concerns we have with decriminalization of buying: that you could have.... None of these issues has been really researched to date, and it's a novel point coming forward, but one of the concerns you might have is that these bodyguards, who sometimes are called pimps, could actually end up being employees or service providers to the women who are in prostitution.

The women in prostitution are, in almost every location that I've considered so far, independent contractors, not employees, so they're not getting EI or CPP or pension benefits. Not only that, but they're responsible for paying their taxes and are responsible for paying the contributions to any worker's compensation scheme. So their protection under occupational health and safety regulations and worker's compensation depends on their participation and their payment into that too.

When you consider that in the context of the most vulnerable employees, the ones who are on the street or those who are operating from their homes, their protection will depend on their payment in.

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

Right. So conversely and perversely, you're suggesting that the pimp or the bodyguard might end up as an employee of the sex worker and therefore it would be the sex worker's obligation to fulfill all of the employer's obligations as we typically understand them.

We know that employment law and employment law standards, labour standards and regulations, and occupational health and safety standards differ pretty significantly from province to province. It's not entirely consistent across Canada.

You mentioned that in Germany and in the Netherlands and perhaps in other places, most sex workers are actually independent contractors. They are not in an employee relationship with the owner of the brothel. They simply rent space in the brothel.

[Gwendoline Allison]

That's right.

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

So in those countries, in Germany and in the Netherlands—we'll take those two examples—what kinds of employee benefits do they receive?

[Gwendoline Allison]

They don't have any. They don't have minimum wage. They don't have overtime. They don't have employee sick benefits, or anything like that.

In Germany prostitution is legalized, so they do have the ability to register and become employees. But so far it's been taken up by very few women who've actually registered for those kinds of benefits.

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

So in your considered view, if we were to legalize prostitution tomorrow, what do you think would be the situation for most sex workers in Canada? Would very many of them be in an employment contractual relationship or would they be independent contractors?

[Gwendoline Allison]

They will be independent contractors.

Some who work in managed brothels—if they were to take it to court and to challenge it—will be able to convince either the employment standards branch or the court that there's so much control over the work that they've done that they are actually employees. But they would have to enforce that themselves. There would be no government body that would say that.

In fact it would be one of the few unregulated businesses in Canada. If you were to decide to do nothing or allowed to decriminalize it, it would be completely unregulated. There are no occupational health and safety provisions there.

Also in respect to human rights laws, it will have knock-on effects on all women. Because if you're telling society or telling women that it's no longer unlawful to impose a condition of employment to have sex as part of your employment—which is what it is—then that will have a knock-on effect against all women in employment when that kind of consideration becomes lawful.

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

Well that's interesting. I hadn't heard that before.

[Gwendoline Allison]

We fought for years to get away from the “coffee, tea, or me” world, and decriminalization of the buying of sex can take us back into that world.

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

Right. So in terms of occupational health and safety, I'm not an employment law specialist but it seems to me my recollection in my years of practice in Ontario is that each industry is assessed an occupational health and safety premium. Certainly in the province of Ontario, it's based on the record of safety and injury in that area.

So we know from all of the evidence we've heard all week that the sex industry is a very violent, dangerous occupation and virtually every sex worker, with the exception of very few that we've spoken to, have encountered violence and injury at some point in their career.

So if someone were then to become an employee or even an independent contractor and be required to make payments to the provincial occupational health and safety organizations, how would that be assessed and how expensive do you think it would be to properly insure somebody under occupational health and safety laws in Canada?

[Gwendoline Allison]

Well there are two aspects to that. First of all, in B.C. at least, massage parlours, steam baths, and escort agencies are already included in coverage as part of the leisure industry. Their base rate is 50 cents per $100 in assessable payroll to a maximum wage per worker of $77,900. I haven't conducted a wide-ranging study of how that compares, but that's a fairly high premium rate for that.

So if you were to count in all of the other forms of prostitution—and it's not just violence. There's post-traumatic stress disorder, mental disorders. There are repetitive strain type injuries. There's pregnancy. Those are all occupation-related hazards of the business. So it wouldn't just be the violence, which in itself is horrific.

So yes, the rates in my submission would go through the roof. They would be borne by these women who are independent contractors who are actually subject to a different scheme. They have to apply separately and their rates are even higher within the current system, so they would have to do that.

But compliance is a problem and it's simply that people aren't complying with the law as it is. The cost of compliance will actually be a deterrence, especially for the vulnerable women, to go ahead and try to get that protection even if they could.

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

I'd suspect it would be difficult to imagine the average street sex worker who may have other issues—drug and alcohol addiction, mental illness, and other issues—to then be able to comply with all this complex law, make the premium payments on time, and therefore derive the benefits.

[Gwendoline Allison]

Well, and every premium payment they make means they have to service another man to pay for those payments.

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

Good point.

Vision care, dental care, employee assistance programs, employee source deductions, employee hours and standards—it's probably not there.

Yesterday, thanks to a witness on the Liberal list, we heard from the Adult Entertainment Industry Association here in Ontario that represents strip clubs. We were introduced to the owners of two strip clubs here in the Ottawa area.

Do you know what the situation is in British Columbia on whether the performers in the exotic dance industry are typically employees or are they independent contractors as well?

[Gwendoline Allison]

They're typically independent contractors. They're the entertainers. When you look at the sorts of boards on the association, you'll see there are classifications for entertainers, classifications for employees who are bar staff, bouncers—those are staff—and then you have clients. So they're considered part of the entertainment, although I do believe that when you had the foreign worker analysis for women coming in to join these clubs that they were actually employees, because they had to be.

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

So at least they got those claims in.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

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

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

Thank you very much, Mr. Chair.

I also want to thank all the witnesses for sharing their expertise to enlighten us.

What you are doing today and the work you do in your communities is extremely important. Thank you very much for that.

I want to begin by reassuring everyone who feels that the Conservatives are not using the charter properly. Sometimes, the charter is very important to them.

I introduced in the House of Commons a bill whose scope is international. Almost all Canadians agree that this bill is necessary, as it is likely to promote the respect of human rights. Yet the Conservatives decided to vote against that bill because they felt it was unconstitutional. Occasionally, the Conservatives love bringing up the charter to avoid certain situations.

[Françoise Boivin, NDP, Gatineau, QC]

That's good publicity for your bill.

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

If my six Conservative colleagues are so concerned about human rights issues, I invite them to vote in favour of my bill. The vote will probably be held next December. Let's band together to save Bill C-583. I invite them to read that bill, which is extremely interesting. In my opinion, the bill is not unconstitutional, but we can debate that in the House of Commons.

My question is for Mr. Kirkup.

A woman testified this morning and did a very nice job. She analyzed the Bedford ruling and focused on section 121.

I do not know if this means anything to you. The Supreme Court of Canada stated the following:

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. As this Court said in Malmo-Levine....

The court said that

the balance must always go to the individuals at risk and touched directly by the legislation.

A lawyer also indicated that

it's constitutionally too broad based on the fact that there's no definition whatsoever of what is publicity, what is a public space, what is a commercial enterprise.

Can you comment on those two statements, which were made by witnesses who appeared before this committee?