Justice Committee on July 10th, 2014

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, we're calling this meeting to order.

This is the Standing Committee on Justice and Human Rights, meeting 43, as of the order of reference on Monday, June 16, 2014, Bill C-36, an act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other acts. As per the orders of the day, we are being televised.

This is our last meeting as a committee on this matter before we go to the clause-by-clause meetings next week.

For witnesses dealing with this issue, we have two individuals here with us: Ms. Allison from Foy Allison Law Group; and Mr. Kirkup, from the faculty of law at the University of Toronto, and I can say a Trudeau Scholar. I can say the actual word. I can say that, yes.

From video conference from Toronto, we have with us from the Canadian HIV/AIDS Legal Network, Ms. Chu. Via video conference from Burnaby, British Columbia, from Ratanak International, we have Mr. McConaghy, and from video conference from Vancouver, British Columbia, we have the Canadian Police Association, Mr. Tom Stamatakis.

Those are our witnesses. As you know and you may have seen, the witnesses or their organization each have 10 minutes to present, and then we have a question-and-answer round.

We will go as the witnesses were introduced.

Ms. Allison, the floor is yours.

[Gwendoline Allison, Foy Allison Law Group, As an Individual]

Thank you very much for the opportunity to appear before you today.

I'm a lawyer and a partner with the Foy Allison Law Group in West Vancouver, B.C. I have 19 years of experience in the field of employment law and human rights law. I have advised a number of women's groups since the outset of my career, and their allies and callers. Two of my clients have spoken here today. I've also acted for both employees and employers, both in the provincial setting and in the federal setting, so with federal undertakings. My most recent work has centred on the implications for employment-related laws should Parliament decide to decriminalize the purchase of and profiteering from sex, or should Parliament decide to do nothing. So hopefully my presentation today will be a bit of the answer of what will happen, or what could happen, should Parliament decide to do nothing.

My particular focus is a consideration of those laws in relation to the Supreme Court of Canada's concerns for the safety and security of those engaged in prostitution, and the recognition that the primary source of the danger to those in prostitution are those who buy the sex and those who profit from the sale of sex. I recognize that employment-related laws are mainly within the provincial sphere of regulation, and out of the control of Parliament. You can't do anything about that, for the most part, but you need to know what it will look like if you decide to do nothing.

In my presentation today I will recognize the gendered nature of prostitution, in that it is mainly women who engage in prostitution and mainly men who buy sex. The Supreme Court also recognized that gendered nature by using the pronoun “she” when writing about prostitution. I will also say at the outset that I reject the contention that prostitution is work, but do intend to focus on that in my presentation today. I agree with my clients that prostitution is a form of violence and the practice of sex inequality and subordination.

In the Bedford case I was co-counsel to the Asian Women Coalition Ending Prostitution and I appeared on their behalf in court. One of the challenges we had in constructing a submission—because we gained intervener status at the Supreme Court level—was that the court should pay attention to how racialized women, and particularly Asian women, are affected by prostitution. Our biggest challenge was the fact that among the many volumes of evidence that was before the court, there was a sum total of one line regarding Asian women in prostitution, and that one line was contained in the affidavit of a police officer, not an Asian woman but a police officer, who deposed that women in bawdy houses were often illegal immigrants and residential brothels contained mainly Asian women.

I know some of you here are lawyers, so imagine how difficult it is to construct a legal argument on a charter foundation when you have no evidence, and that was our challenge before the court.

In the case, Asian Women's position was that the impugned laws were unconstitutional as they apply to those in prostitution, but were constitutional as they applied to those who buy sex and who profit from prostitution, those men who are the primary source of danger to women in prostitution and who's rights of safety and security were not engaged and not an issue in the case.

Now I have three points to make that arise from Bill C-36, two of which I think have been dealt with already, so I would hope to only mention them in passing, and then I'll focus on my main point.

Overall, I agree that Bill C-36 has many positive aspects, and I agree with those groups and individuals who have given their qualified support to it. I applaud in particular the commitment that I heard Minister MacKay make, when he introduced the bill, to a long-term discussion with provincial, local, and aboriginal governments. This will need a multi-level government approach to address the human rights devastation caused by prostitution.

My first point adds my voice to the opinion that the continued criminalization of women in prostitution, as set out in proposed subsections 213(1) and (1.1), is, in my opinion, inconsistent with the stated purposes of Bill C-36, and in particular the purposes of encouraging those in prostitution to report incidents of violence and to leave prostitution.

As an employment lawyer, my consideration is a practical one. Continued criminalization is counterproductive to successful exiting and a long career in other work. Those exiting prostitution already face barriers to entering the workforce, not least of which would be explaining how they have earned income during their years in prostitution. A criminal record is a further and in some cases an absolutely prohibitive barrier to achieving employment.

Those who exit prostitution have many great insights that would make them valuable employees, particularly in social services and in other forms of public service, and in many positions criminal records checks are required. As a B.C. lawyer, I don't have experience and I'm not qualified to opine on matters outside that area, but I do say, by way of example, that in B.C. we have the Criminal Records Review Act, which requires criminal records checks for anyone who works with children or who has unsupervised access to children or vulnerable adults.

Likewise, volunteering is a very valuable and successful method of gaining skills to enter the workforce, which often, again, requires a criminal records check. I've had many visits to my local police station for my volunteering activities. I know they come up quite frequently.

Continued criminalization of those engaged in prostitution will punish them for the inequalities they've suffered, which led them into prostitution in the first place, and keep them there by impeding the chance of a successful exit.

My second point is to support the provisions as they relate to advertising. Given the time involved and given what I want to say about the employment laws, I will rely on what my client, Asian Women, said this morning about advertising and say no more on that front.

My third point relates to the effectiveness of provincial employment-related laws. You've heard from witnesses that Parliament should decriminalize the buyers and profiteers and protect women through labour and employment laws, and human rights laws. In that regard, those provincial laws would be tasked with protecting those in prostitution from the catastrophic harms that they suffer, primarily at the hands of the men who buy them and who profit from them. The ultimate question you have to ask yourself is: are these laws as they are—because you can't change them—up to the task? Can they do so? Can they protect these women? In my opinion they're not up to the task, particularly when you review the laws in comparison with the horrific nature of the violence that you've heard about over the past couple of days, the women you heard yesterday and today and the violence they've suffered.

There are three legal regimes I want to touch on. First is the common law, then human rights legislation, and then the occupational health and safety rules.

First, I say the employment laws are inadequate. They're primarily engaged with compensating people for harms done to them, such as the failure to give reasonable notice of the termination of employment. Second, employment-related laws are focused on the protection of employees, and that is a status that is not obviously conferred on those in prostitution. In the case of those who work on the street and those who work alone from their homes as independent operators, there's no employer. The underlying protections of employment law would not be available to such girls, youth, and women. There is no one against whom to seek protection.

The reality is that most women who work indoors in a decriminalized or legal environment are treated as independent contractors, self-employed businesswomen. That is the case in the bunny ranches of Nevada, the mega brothels of Germany, and the red light districts of the Netherlands where the women rent their rooms from brothel owners. At the Pascha in Cologne, the women rent the rooms for 175 euros for 24 hours. The services are then negotiated directly between the women and the buyers and the going rate is around 50 euros per half hour.

In the interests of time I won't go into what you've heard about the New Zealand model. In my work, which includes writing papers and presenting to the employment law conference of the Continuing Legal Education Society of B.C. on this bill, I did conduct a review of the New Zealand prostitution laws and their effectiveness. In doing so, I communicated with some academics in New Zealand to get a better understanding of how the laws operate there. I'm not going to go into them in my presentation, but I'd be happy to answer any questions with respect to how the employment laws are regulated in that country.

I will say one thing, though. It appears that obviously the Parliament in New Zealand has a broader range of scope of what they can do than Parliament here, because they've obviously considered health and safety, education, and occupational health and safety, and also some local government licensing, which is also outside your jurisdiction.

There's a second element to employment law and that's the corresponding duties between an employer and an employee. An employer has an obligation to provide a safe working environment and not to force an employee to carry out unlawful acts. Employees gain the benefit of protections under employment insurance and on occasion medical benefits and pensions. However, employees also owe duties to employers and I am engaged by employers to enforce these duties: to be loyal and faithful; to act in good faith and not to the detriment of the employer; to obey the reasonable and lawful directions of the employer; to act with all due skill, care, and competence; and not to neglect their duties. Some of those duties do not translate well into the realm of prostitution where the primary obligation of the employee in this consideration would be to provide sex to a third party directed by the employer.

There's an apparent conflict there between an employee's duties to her employer and the provisions in the Criminal Code regarding consent to sexual activity, and in particular the idea that consent cannot be given by a third party.

The Criminal Code provisions raise a question regarding the legality of employment contracts with a fundamental and core duty of the employees to provide sex to the employer's clients. When the question was asked about what a bad day would look like in.... My worst job was in a photo processing plant, which meant spending the afternoon in a dark room with a whole bunch of paper. A bad day for a woman in a brothel would be providing sex to a man who doesn't care, and that she doesn't want to have sex with. I think that's a fundamentally different analysis when you're looking at it as an employment contract.

[The Chair, Conservative, Mike Wallace]

You're about a minute over your time, so if you could try to summarize, that would be great.

[Gwendoline Allison]

I will. I'm sorry.

I would say that the current schemes, and in particular the occupational health and safety schemes, are not adequate, and human rights laws are not adequate to protect women in prostitution.

I would be happy to answer questions about those, too.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Kirkup, the time is yours.

[Kyle Kirkup, Trudeau Scholar, Faculty of Law, University of Toronto, As an Individual]

Good afternoon. My name is Kyle Kirkup. I am a lawyer and a Trudeau Foundation scholar at the University of Toronto faculty of law. My research examines the role that Canadian criminal law has played, and continues to play, in regulating gender and sexuality. As part of the research, I have conducted qualitative interviews with sex workers and sex work community organizations in Canada.

I want to make three related points about Bill C-36.

First, I want to underscore the considerable harms that will be created by its sweeping list of provisions that directly or indirectly criminalize adult sex work.

Second, I want to situate this legislation in its larger context. The underlying logic behind Bill C-36 is not new. Canada, like so many countries around the world, has a long and misguided history of criminalizing sexual activities on the basis of morality.

Third, I want to explain why we should resist the claim that creating more criminal offences, more sentences, and putting more people in prisons will ever be an effective way to respond to the complex substantive equality issues that are raised by adult sex work. Instead, I want to encourage the government to listen carefully to what current sex workers—women, men, and transgendered people—are actually saying about what they need to work safely and with dignity. It is not another ill-conceived criminal law.

Let me start by briefly talking about the considerable harms that will flow from Bill C-36. The legislation draws heavily upon the so-called Nordic model of criminalizing the clients of sexual services, but it goes much further, particularly with its advertising and communication provisions. We might call this made-in-Canada approach the Nordic model's bigger, deadlier cousin.

Fifteen years after passing the act, Sweden is nowhere near ending the demand for sex work. Claims that we have heard this week suggesting that the Swedish model has been some sort of a panacea are simply not supported by sound, methodologically rigorous evidence. With Bill C-36 we now see Canada going down a similar, albeit even more misguided path than Sweden. The legislation may have a new title, a new preamble, and a new goal of targeting the purchasers and not the sellers of sexual services, but make no mistake about it, Canada's new legislation will replicate the same harms that led the Supreme Court of Canada to strike down the former laws in Bedford.

As Chief Justice McLachlin noted in the unanimous opinion:

The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

With clients anxiously trying to avoid police detection, street-based sex workers will continue to have little time to take precautionary measures such as writing down a licence plate number before moving to risky, more isolated locations. Unable to communicate in locations where persons under 18 can reasonably be expected to be present—virtually everywhere in my respectful submission—sex workers will face the constant risk of arrest by the police. With significant limitations placed on third-party advertising, sex workers will find it difficult to work in safer indoor locations.

In light of the legislation's disproportionate impact on vulnerable members of Canadian society, its potential arbitrariness, its overbreadth, its gross disproportionality, and its curtailment of freedom of expression, there are serious questions about whether this bill will withstand the inevitable constitutional challenge. While we wait for Bill C-36 to be struck down in whole or in part, we leave current sex workers in deeply precarious conditions. How long do we have to wait for them to tell us what they already know; that the criminal laws aren't going to make them safer?

Instead of again going down the path of creating constitutionally suspect criminal laws, I urge the government to consider regulatory models such as those developed in New Zealand. Since 2003, New Zealand has set up a system that prioritizes human rights and labour protections while also giving municipalities, and working with municipalities to create, health and safety and zoning regulations. If Parliament is serious about providing sex workers with meaningful options, including exiting the sex industry, the New Zealand model is much more effective in connecting them with service providers.

Second, I want to situate Bill C-36 in Canada's long history of using the criminal law to regulate morality. I want to do so by drawing some parallels between the shared struggles of gay, lesbian, bisexual, and transgendered communities and sex workers. Like the over 80 countries around the world that continue to criminalize LGBT lives, Canada has a long history of using the criminal law to regulate sexual practices that take place between consenting adults.

In recent Canadian jurisprudence, however, we are now seeing courts moving away from using the expressive power of the criminal law to condemn these practices. Perhaps most notably, in its 2005 decision in Labaye, the Supreme Court of Canada held that consensual sex between adults in a swingers' club did not constitute criminal indecency within the meaning of subsection 210(1) of the Criminal Code. As Chief Justice McLachlin remarked in that decision:

But over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices.

In From Disgust to Humanity: Sexual Orientation and Constitutional Law, University of Chicago law professor Martha Nussbaum makes a similar claim. Writing about the regulation of gays and lesbians in the United States, Nussbaum argues that the politics of disgust has been and remains at the root of opposition to the recognition of civil rights. In the place of disgust, Nussbaum calls for us to recognize the humanity in all members of society, including those who engage in non-normative sexual practices. Our histories are qualitatively different, of course, but there are shared struggles with the disgust that has too often been directed at LGBT people and sex workers.

The Canadian government's attempt until 1969 to use the criminal law to abolish homosexuality, and its attempt today to abolish adult sex work, is rooted in a similar, underlying logic. If we threaten people with enough criminal punishment, the argument goes, we'll eventually get them to just say no, whether it be to gay sex or to adult sex work.

When we hear the Minister of Justice make reference to “the perpetrators, the perverts, [and] the pimps”, he is indeed proposing criminal laws that rely upon disgust instead of sound, evidence-based public policy. Rather than focusing our attention on flawed approaches that prioritize criminalization, we should be reframing the discussion to one about human rights, to labour protections, and to safety.

As many people in this room can attest, Canadians are deeply skilled at regulation. Indeed, we regulate everything.

Third, let me end with a few words about the danger of attempting to use the blunt force of the criminal law as a public policy tool. As I observed in an editorial on June 4 in The Globe and Mail, when it comes to criminal justice policy perhaps the government's slogan should be “Got a complex social issue? There’s a prison for that.” With Bill C-36, Canada is set to continue down the harmful, ineffective, and constitutionally suspect path of pursuing “tough on crime” legislation, all the while purporting to secure substantive equality for women.

As we have this important public policy conversation we must not lose sight of the many criminal provisions that we have on the books to respond to the important concerns about exploitation and violence that we've heard this week. These offences include human trafficking, kidnapping, forcible confinement, uttering threats, extortion, assault, sexual assault, aggravated assault, aggravated sexual assault, and a series of gang-related offences.

In the face of these wide-ranging, existing criminal laws, it seems misguided in the extreme to attempt to protect vulnerable members of Canadian society by enacting legislation that makes adult sex work more dangerous. As a society, we should be concerned about any labour practices, and there are many of them where people are not afforded basic human rights and have not been able to make meaningful choices about the work that they do because of gender, because of race, because of disability, because of sexual orientation, because of socio-economic status. But the sound, evidence-based public policy response is not to rush to create new offences to respond to the deep complexities of adult sex work.

Rather, let me urge the government to listen carefully to what current sex workers are actually saying about what they need to work safely and with dignity. It is not another ill-conceived criminal law, and it is not Bill C-36.

Merci beaucoup.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Kirkup, for your presentation.

Now we will go to the video conference from Toronto, with the Canadian HIV/AIDS Legal Network. Ms. Ka Hon Chu, the floor is yours.

[Sandra Ka Hon Chu, Co-Director, Research and Advocacy, Canadian HIV/AIDS Legal Network]

Thank you.

My name is Sandra Ka Hon Chu, and I'm the co-director of research and advocacy at the Canadian HIV/AIDS Legal Network.

We're a human rights organization that works to promote the rights of people living with and affected by HIV and AIDS in Canada and internationally. The legal network intervened before the Ontario Court of Appeal and the Supreme Court of Canada, in Bedford, and has studied and worked on issues concerning sex work and human rights for over a decade.

I'd like to thank the justice committee for providing my organization with this opportunity to make a submission, which will focus on the impact of criminal law on sex workers' health and human rights, and draw the committee's attention to the growing global consensus that criminalizing sex work, including the purchase of sex, is poor public health practice, as well as a great violation of sex workers' human rights.

In the legal network's written submission, I described in greater detail the health impacts of specific provisions of Bill C-36, which I won't go into now. We also produced a legal brief on Bill C-36, called “Reckless Endangerment”, which was circulated to all members of Parliament, outlining how the law could be applied to sex workers and others. In particular, our analysis of the bill suggests that sex workers would be captured by the criminal law even if the prohibition on communicating is removed.

Based on research in Sweden, Norway, and municipalities in Canada, which already operate on a policy of pursuing clients rather than sex workers, it can be expected that the various provisions of Bill C-36 would do the following. It would undermine a sex worker's ability to screen and identify clients and negotiate the terms of a transaction, including with respect to safer sex; displace sex workers to isolated spaces to avoid police detection where they have little ability to insist on condom use; and displace sex workers from health and social services, particularly in cases of court or police-imposed red zone orders. These often prevent sex workers from certain neighbourhoods where many crucial health and social services exist like food banks, shelters, and health clinics.

It would also erode sex workers' bargaining power, and place pressure on them to see more clients and to provide their services without being able to demand safer sex; prevent venue managers and others from promoting sexual health because condoms may continue to be seized as evidence of illegal activity; and impede sex workers' ability to work indoors and with others, which significantly enhances their ability to control their working conditions, including the ability to negotiate safer sex.

If sex workers are incarcerated as a result of this bill, which could realistically occur, this could disrupt their access to medical treatment and place them at greater risk of contracting HIV and other infections. This would have a particularly severe impact on sex workers who are indigenous and racialized and who already comprise a disproportionate number of people in the prison population in Canada.

Conversely, research conducted internationally has demonstrated that the decriminalization of sex work supports safer working conditions and enhances sex workers' health and safety. I'd like to draw your attention to just a few of the many studies that exist on this issue.

A UN global review of research on sex workers and their clients found that laws that directly or indirectly criminalize sex workers, their clients, and third parties can undermine the effectiveness of HIV and sexual health programs, and limit the ability of sex workers and their clients to seek and benefit from these programs.

A 2010 analysis of data from 21 Asian countries revealed that—

[The Chair, Conservative, Mike Wallace]

Ms. Chu, could you slow down a bit so we can do a better job of translating?

[Sandra Ka Hon Chu]

Sure.

[The Chair, Conservative, Mike Wallace]

I'll make sure you have your time.

[Sandra Ka Hon Chu]

Okay, thanks.

A 2010 analysis of data from 21 Asian countries revealed that in places where laws exist to prevent discrimination against sex workers, sex workers have greater knowledge and use of HIV-related services and lower rates of HIV. Researchers concluded that not only do legally punitive working environments threaten the rights and health of sex workers, but may further exacerbate HIV epidemics.

A UN review of sex work in New Zealand and the Australian state of New South Wales concluded that decriminalizing sex work has empowered sex workers to demand safer sex and to refuse particular clients and practices, increase their access to HIV services and sexual health services, and is associated with very high condom use rates and very low rates of sexually transmitted infections. HIV transmission within the context of sex work is understood to be extremely low or non-existent. Prior to decriminalization, sex workers were less willing to disclose their work to health care providers or to carry condoms for fear of it being used as evidence for conviction.

In decriminalized environments, the sex industry can be subject to the same general laws regarding workplace health and safety and anti-discrimination protections as other industries. As borne out by the evidence, decriminalizing sex work is necessary to ensure that sex workers can work free from health and safety risks and is critical to advancing public health objectives.

Reinforcing the imperative to decriminalize sex work is the fact that sex workers are entitled to protection under all recognized human rights standards. As a number of human rights bodies have affirmed, the criminalization of voluntary, consensual sexual relations among adults in incompatible with the respect for human rights, which Canada has a legal obligation to uphold, and which must guide the interpretation analysis of the charter.

Among these rights are the rights to work and enjoy safe and healthy working conditions to the highest attainable standard of physical and mental health; the right to liberty, life, and security of the person; the right to freedom of expression; and the right to equal protection of the law, without any discrimination.

In line with international human rights law, global health and human rights bodies have increasingly called for the decriminalization of sex work. These preeminent bodies include UNAIDS and the United Nations High Commissioner on Human Rights, the World Health Organization, the special rapporteur on the right to health, and the Global Commission on HIV and the Law, which after a massive systemic study concluded that since its enactment, the Swedish law criminalizing the purchase of sex has worsened rather than improved the lives of sex workers.

The UNAIDS advisory group on sex work noted that there is no evidence that “end demand” initiatives reduce sex work, improve the quality of life of sex workers, or tackle gender inequalities.

Whatever one's position on the morality or desirability of sex work, there seems to be a consensus among the witnesses that there is a pressing need to protect sex workers' health and safety. However, a concern for the health and welfare of sex workers is profoundly inconsistent with the criminalization of sex work. Laws must be grounded in evidence and human rights. The overwhelming evidence concerning sex work demonstrates that the criminalization of sex work—both directly through prohibitions on the purchase of sex and communicating, and indirectly through prohibitions on advertising sexual services, receipt of financial and material benefits from sex work, and procuring—exposes sex workers to stigma, discrimination, and criminalization.

It diminishes the control sex workers have over their working conditions, including their negotiating power to insist on condom use. It threatens their health and safety; limits their access to essential HIV, sexual health, and harm reduction services; and leaves them without the protective benefit of labour or health standards.

These are harms that the Supreme Court of Canada found to be unconstitutional in Canada v. Bedford, and these harms also constitute a violation of sex workers' human rights.

As a number of witnesses have already contended, Bill C-36 merely cloaks the provisions that were invalidated in Bedford in a different language, with no meaningful provisions to deal with the diverse needs of sex workers, many of whom have no desire to exit the industry.

Human rights law dictates that governments must protect the rights of all sex workers, not just those who are victimized or those who choose to exit. Human rights principles also require policy-makers to value the voices of those who are directly affected by Bill C-36 and not criminalize the context in which they live and work.

Because Bill C-36 will significantly increase the risk of harm that many sex workers would face, we adopt the submissions of other witnesses who have argued that Bill C-36 would violate sex workers' constitutional rights—violations that cannot be safe under section 1 of the charter, irrespective of the broader objectives of the law.

Decriminalizing sex work is the only proven route to protecting sex workers' labour and human rights, and Parliament has a responsibility to ensure that one set of unconstitutional laws is not replaced with another.

There is no legal obligation on the government to create new criminal laws. As the Supreme Court of Canada noted in Bedford, “It will be for Parliament, should it choose to do so, to devise a new approach”. Sex work continues to be regulated under parts of sections 212 and 213 of the Criminal Code. As numerous other witnesses have explained, various other provisions of the Criminal Code can be deployed to protect sex workers from exploitation and other forms of abuse.

For all these reasons, we urge this committee to reject Bill C-36 in its entirety and to meaningfully consult with current sex workers to develop a legal framework that protects, respects, and fulfills their human and constitutional rights.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much for that presentation on behalf of the Canadian HIV/AIDS Legal Network.

Now, via video conference, we're off to Burnaby, British Columbia, to Ratanak International for 10 minutes.

The floor is yours.

[Brian McConaghy, Founding Director, Ratanak International]

Thank you.

Mr. Chair, ladies and gentlemen, thank you for the opportunity to speak to Bill C-36.

My name is Brian McConaghy, and I come to the issue of prostitution with 22 years of experience in the RCMP and 24 years of directing Ratanak International, a charity that assists Cambodian youth to recover from the abuses of the sex trade.

While in the RCMP, I was assigned files that involved both domestic and international prostitution. So grave were the abuses visited upon both women and children in these files that I was compelled to leave the RCMP in order to serve such victims full time. It is now my challenge and my privilege to do so. I continue to assist Canadian law enforcement in international investigations associated with prostituted children and youth.

Bill C-36 seeks to address some very complex issues, and I would like to commend the government for its efforts to identify those prostituted as victims rather than criminals. I would also support criminalizing those who purchase and benefit from the sale of Canadian women.

I need to begin by stating that I judge human trafficking and prostitution as inseparable and simply different elements of the same criminal activity, which exploits vulnerable women and youth. The separation of these elements I view to be largely academic.

I should also indicate that while there are clear distinctions in law regarding the treatment of minors and adults in prostitution, I view this as a seamless continuum of abuse that runs from the prostituted child, who by virtue of age is deemed incompetent to consent, and progresses into the abused adult, who by virtue of conditioning, addiction, and trauma is frequently rendered equally incapable of informed and considered consent. Thus the issues of minors, while not directly associated with the Bedford ruling, are clearly material to these deliberations.

I would like to address several contextual issues to which Bill C-36 applies.

First is harm reduction and legalization. Those “harm reduction” principles frequently verbalized by those seeking to legalize the prostitution industry are, I believe, misguided. I have not seen any convincing evidence to indicate that women in prostitution will be safer if regulated. If anything, legalizing the sex trade will, if we consider Germany and the Netherlands, increase the size and scope of the trade, leading to more human trafficking, more involvement of organized crime, more prostitution, and de facto more violence.

It is in my opinion foolish to presume that the introduction of regulations to an industry such as prostitution will lead to compliance and cooperation. This is particularly true given the number of minors manipulated into the trade and the number of women struggling with addiction, mental illness, and financial vulnerabilities who are not necessarily in control of their own lives. If prostitution is legalized, I would anticipate that many of these women will fall through the regulatory cracks.

I do not believe that legalization and regulation would have protected the women Willie Pickton picked up who ended up dismembered in my RCMP freezers for forensic analysis. What we learn from the Pickton file and the analysis of their body parts indicates that Pickton was only the last in a long line of predators who had over the years subjected these women to traumatic abuse and injury.

Let us be under no illusion as to the brutality of this industry. Defenceless Canadian citizens are being routinely subjected to great harm in prostitution, and their vulnerabilities are being exploited to the full. I have watched too many evidence videos involving profound violence, degradation, and abuse. I have listened to women and children as they have pleaded for the torture—I use the term advisedly—to stop. I would not wish such videos on any of you.

In this context, the issue of consent looms large. Tragically, some of the victims consent to such bodily harm and physical injury at the hands of johns simply because they are so desperate for their next drug fix. Let us not presume that what passes as consent is actually full, informed consent free of duress.

It is this peripheral violence that the practices of harm reduction would seek to address. However, harm reduction in the context of legalized prostitution would do nothing to address the violence inherent in the central sexual activity of prostitution. It is my belief that such central activity, which is the career of prostitution, does in fact represent violence against women. Harm reduction practices will not protect women from violence if the job, itself, represents violence.

The purchasing of women's consent by males and subjecting them to thousands of paid rapes does violence to their bodies and is profoundly destructive to the psyche. Young women exiting out of enforced prostitution frequently feel suicidal, and they do attempt suicide.

It is interesting to me that I have never encountered a young woman in a transitional program who has attempted suicide because of her memories of beatings, being held at gunpoint, or being stabbed. Invariably, the source of their distress is a profound sense of worthlessness resulting from the repeated sexual assaults that are central to the job, along with constant dehumanizing verbal abuse that undermines their self-esteem and shakes their identity to the core—this is the central violence of prostitution.

If, then, violence is central to the life of prostitution, the only clear way to reduce violence is to reduce the size of the trade. Experimentation in other nations teaches us that legalization will not reduce the harm but rather, by growing the trade, will increase it. In addition, I believe we are naive if we assume the creation of a legalized Canadian industry of sex abuse would go unnoticed by the very large source of demand south of the border. Simple economics will dictate that the demand will be filled with increasingly vulnerable “product”, which will be found within Canadian society. Providing such a market is potentially catastrophic.

On the issue of choice, it is my belief that the law needs to target those who clearly have choice in regard to such harm. Those vulnerable women, both minors and adults, the majority of whom have experienced abuse as children, who are frequently drug-addicted, manipulated, and extremely vulnerable, do not have that choice. However, those with money, careers, and a reputation to maintain; those who kiss their kids goodnight, say goodbye to their wives, get in the car, drive downtown, and choose to abuse a vulnerable woman or girl—these are the ones our laws clearly need to be directed towards. Bill C-36 does this, for the first time, targeting johns and those who would pimp. This represents a major step forward.

As one who has spent far too much time picking through the dismembered body parts of prostituted women, analyzing the nature and circumstances of their brutal deaths; as one who knows first-hand how many years it takes to rehabilitate systematically abused youth; and as one who has devoted his life to the recovery of such victims, allow me to assure you this is not an industry of choice for the vast majority of those prostituted. It is neither lucrative nor empowering for them. It is fundamentally coercive and manipulative. It is abusive, violent, and destructive on every level, and it is deadly. Prostitution and its end game of psychological damage, physical injury, and even death should never be celebrated or legalized, only condemned.

One of the key indicators of a mature democracy is its ability to look past the superficial and move to create legislation that protects the most vulnerable and abused, irrespective of their circumstances or standing in society. In creating this legislation, Canada has moved to protect victimized women, who are frequently not recognized as victims by virtue of their circumstance and appearance. This, in conjunction with a concerted effort to prosecute those who would victimize them and capitalize on their misfortunes, is both honourable and appropriate.

I have two recommendations.

First, I am supportive of Bill C-36, but I'm cautious about provisions outlined in section 213 regarding communication. While I understand the principle of seeking to protect minors in locations where they are apt to be found, I am concerned that under this provision those who are clearly identified as victims elsewhere in the legislation become criminalized for activity over which they may not have control. This provision appears at variance with the rest of the bill and needs careful scrutiny.

Second, the success of the Nordic model appears to be contingent upon the clear commitment to appropriate exit strategies and an equal commitment to their associated budgets. I urge the government to remain focused on this vital element.

To finish, I wish to reiterate my support for the bill and offer my thanks to Minister MacKay and member of Parliament Joy Smith, who have worked so hard to bring justice and dignity to those who need it most.

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you for that presentation from Ratanak International.

Our final witness for today is from the Canadian Police Association.

Sir, the floor is yours for 10 minutes.

[Tom Stamatakis, President, Canadian Police Association]

Thank you.

Good afternoon, honourable members. I appreciate having the opportunity to appear before your committee today on behalf of the Canadian Police Association as part of your study of Bill C-36.

For those of you who may not be familiar with our organization, the CPA represents more than 54,000 front-line civilian and sworn law enforcement personnel serving across Canada in more than 160 police services.

I'd like to begin my brief opening remarks by saying that the Canadian Police Association is supportive of Bill C-36, though we certainly understand that this legislation, like prostitution in general, is a controversial topic. Our association appreciates that Minister MacKay and Minister Blaney, as well as the Departments of Justice and Public Safety Canada, actively consulted with front-line law enforcement during the drafting process for the legislation.

As I mentioned, while we appreciate and understand that the issue before you here is a complex and controversial one, I believe there are some areas in which all sides can come to an understanding, particularly with the need for us to focus on protecting the most vulnerable and exploited members of our communities. It is here that we believe Bill C-36 takes some very positive steps.

Provisions within this proposed legislation, which clarify the definition of a weapon within the Criminal Code to include restraints, including handcuffs or rope used in the commission of certain offences, will certainly help to provide additional and necessary tools to our officers. Further, the increased penalties attached to child prostitution, child trafficking, and related offences will hopefully send a very clear signal that there will be absolutely zero tolerance given to anyone who preys on or exploits those who are most in need of our protection.

When discussing the issue of prostitution, the fundamental point I'd like to stress is the absolute need for both law enforcement and sex trade practitioners to end the adversarial nature of any interactions between their two groups. There is some misconception that, pre-Bedford, law enforcement made it a priority to harass and arrest sex trade workers on a regular basis as part of a targeted attack on what many might call the world's oldest profession. I can say, both from my experience with my home police service—the Vancouver Police Department—and from my conversations with officers involved in these investigations across Canada that this is just not the case. When sweeps are conducted to target street prostitution, the instigation is usually complaints from the surrounding community that need to be responded to by our police services.

Officers involved in prostitution task forces receive specific training and have access to community support programs to help sex trade workers who might themselves be the victims of exploitive relationships or suffer from some form of drug dependency. Further, police services across the country have initiated john school programs to help divert those who are purchasing sex and to increase their awareness of the victims who may be created by their actions.

Regardless of whether Bill C-36 is passed, I would suggest that we need to continue to monitor and enhance these programs wherever possible to ensure that education is a key component for both the buyers and sellers of sex, and that resources will need to be committed to further these efforts.

When it comes to prostitution, as with many other offences, Canadian police personnel exercise a tremendous amount of discretion in the pursuit of their duties. This will continue even if Bill C-36 becomes law. Many of those involved in the sex trade come from among the most vulnerable and marginalized members of our society, where violence and addiction are the common themes that law enforcement encounters. Any legislated response to prostitution in this country needs to take those factors into account, as the harm that is caused not only impacts the buyers and sellers of sexual services but also the surrounding communities.

To conclude, I want to reiterate that the Canadian Police Association endorses the approach taken with Bill C-36. This legislation will provide front-line law enforcement personnel the additional tools they need to help target the predators who seek to take advantage of the vulnerable. Our members appreciate the enhanced penalties for offenders who target children and those who try to draw minors into this industry through child trafficking.

The recent Bedford decision has had a significant impact on policing in this country because of the uncertainty that has followed it regarding the constitutionality of Canada's laws surrounding prostitution. We appreciate that this government has taken steps to address that uncertainty and that law enforcement took part in the consultations that took place to draft the legislation that you are considering today.

I wanted to keep my opening remarks brief to allow as much time as possible for questions and I look forward to participating in the continued discussion here this afternoon.

Thank you again very much for inviting our association to participate.

[The Chair, Conservative, Mike Wallace]

Thank you for that presentation from the Canadian Police Association.

We are moving to the rounds of questions and answers. Our first questioner, from the New Democratic Party, Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I want to thank our last group of witnesses for joining us today.

Bear with me, please, because I have a couple of lawyers, and next Tuesday we're going to start the clause-by-clause.

We are dealing with a piece of legislation, so we have to address Bill C-36 section by section. There will be votes on each and every one of those clauses, so we need to be sure—in my case, anyway, that's how I do my job and I'm sure all my colleagues are the same—that the clauses we vote on are sound, do what they're supposed to do, and are constitutional and charter compliant. So you can see the challenge we have.

So having the benefit of two lawyers.... After four days of testimony and hearing lots of stories that are heartbreaking, when I go back to the legislation I will do a job for the next five minutes that might be very boring on TV, but for me, very important.

To this day I'm still wondering about a couple of things. We heard that the preamble is important. As a lawyer, I know a preamble can give a bit of

the purpose of a bill, and provide certain explanations for the courts that will have to deal with interpretation issues. Titles and sections must also be considered, and especially the Criminal Code.

I am very familiar with the way criminal lawyers work, and I know that any argument that can be debated will be tested before the court. This much is known. Even the minister is aware that his bill will be tested.

So here is my question about that. I am looking at the new section 213, in response to the Bedford case. That provision is still where it was before, more specifically in the part on disorderly houses, gaming and betting. Unless I am mistaken, it is still in part VII, under section 213. The heading was changed, and clause 14 states the following:

offences in relation to offering, providing or obtaining sexual services for consideration

This is the most problematic provision. We have almost unanimously been told that we should decriminalize prostitutes activities' because they are victims and they cannot be both victims and criminals simultaneously.

Section 213 also states the following:

Everyone is guilty of an offence [...] for the purpose of offering, providing or obtaining sexual services for consideration.

Further on, the new section 286 follows the provision on offences against individuals and reputations. This provision covers kidnapping, human trafficking, hostage taking and abduction. This is the meatiest part on criminal offences relating to the purchase of sexual services, while section 213 already covers the issue, as I mentioned, but in a more summary fashion.

On the one hand, why was this offence in section 213 maintained? How do you interpret this? Is that provision in conflict with section 286? On the other hand, should the new part introduced by the minister, which contains section 286, be interpreted so as to limit the notion of buying in a context of abductions or human trafficking given the heading of the section it is under?

I am wondering if this is clear for you, as it is not clear for me. There is room for debate, and someone could say that they do not interpret the legislation as we do, and that they feel that no offence is involved in purchasing a sexual service when there is consent.

That's one of my big dilemmas right now on how to interpret the bill.

So to start, I'm addressing it to Mr. Kirkup.

[Kyle Kirkup]

Great.

The first thing I would say is that the reason the preamble has been coming up so much in the discussions is because the government knows that the section 7 analysis is very much about proportionality. So what we're supposed to be doing is looking at the purpose of the legislation and then weighing it against what the legislation is going to do when it goes out into the world.

In Bedford, one of the problems identified by the court was that you had this purpose that was kind of weak, a public nuisance purpose, going up against very real harm and death to sex workers. I would argue that the constitutional problem we now see is that even though there's a stronger preamble in place, we're now into the terrain of what section 7 calls arbitrariness. The purpose of the legislation is to protect vulnerable members of Canadian society, but when you think about what Bill C-36 will do when it goes out into the world as legislation, it will actually be counterintuitive to its stated goal of protecting vulnerable women from exploitation.

To answer the first question about why the preamble keeps coming up—and while Minister Peter MacKay has not released the legal opinion, I would encourage him to do so; I think that would be an important contribution to this debate—it's because for section 7 in particular, when you're weighing that purpose against the effect, it's a really important provision. I take your point, and the point that you've made throughout the week, that the legislation ultimately won't hold the preamble. I think that's also why you're seeing the new legislation shifting old provisions into offences against the person. It's again part of this story of trying to recast this legislation as something new, something new for the first time.

In my respectful submission, I would say that it largely feels like window dressing. You move different provisions to different sections of the Criminal Code. You amp up the preamble—

[Françoise Boivin, NDP, Gatineau, QC]

But could it be argued that new section 286.1 would be seen as only regarding trafficking?

It would be buying sexual services in the context of human trafficking, rape, kidnapping, and so on, since it is exactly at the end of the actual section 286, and not necessarily in the same type of aspect as section 213, which seems like a lesser charge because it's a summary conviction.

Or is it like we heard from Conservatives that as soon as Bill C-36 is adopted, there's no buying? Even though we permit people to sell, there's no buying. I find it hard to see the logic in it.

Mr. Kirkup.

[Kyle Kirkup]

I would echo your point. I think when you do the line-by-line reading, that's a really important question that continues to need to be raised. I don't have a clear yes or no answer on that. But I think the general push, as we've seen with this legislation, is to try to move those offences, and by doing so, to change the constitutional section 7 analysis.

[The Chair, Conservative, Mike Wallace]

You have one more minute. You have to ask a question and have an answer within that.

[Françoise Boivin, NDP, Gatineau, QC]

Okay, I will try.

My question is for the president of the association of policemen in Canada.

I understand, since Bedford, that there's kind of a grey area now. Why is it that you can't do your job in human trafficking and for women who are in really serious situations? I'm pretty sure that can still go on.

[Tom Stamatakis]

I think it can still go on.

But to put it into context, one of the problems is that police agencies across the country don't spend that much time dealing with issues related to prostitution. I think the issue, from a policing perspective, is that when you believe that someone's engaged in human trafficking, or where vulnerable women are being exploited, you have to build the case before a judge to get the authorizations to do a number of things in order to build a brief to present to the crown and pursue a criminal charge.

When there's confusion around the law, people are very reluctant to make a decision to go out on a limb. From a policing perspective, I think that's the frustration. We would just like some very clear direction around what the expectations are, so that when we are investigating and trying to protect vulnerable people, we know how to do it and we can get the results. From my perspective as a front-line police officer, that's the concern. It's confusing. You have so many people on different sides of the debate, and we seem to get caught in the middle of it.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you for those questions and answers.

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