Evidence of meeting #44 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was prostitution.
A recording is available from Parliament.
Conservative
NDP
Françoise Boivin NDP Gatineau, QC
Now might be the time for our experts from the Department of Justice to respond to these comments.
I get worried when I hear that the courts will determine this or that. This could mean that before there is any real jurisprudence by which some courts would have to abide, it would be a free-for-all for a little while. That's what will happen until a higher court, such as the Quebec Court of Appeal or the Supreme Court of Canada, hands down a definitive ruling. For example, the Quebec Court of Appeal could rule on this issue.
Isn't there a danger when the definition is so vague?
Counsel, Criminal Law Policy Section, Department of Justice
I would direct the committee's attention to the technical paper that was tabled by the Minister of Justice on the first day of committee hearings, in particular, to page 5, which goes over all of the extensive jurisprudence on the meaning of “sexual services for consideration” and “prostitution”, which, of course, is defined as “the exchange of sexual services for a payment”. So we do have an extensive body of jurisprudence. I've spoken to the crown, and they feel that the jurisprudence satisfactorily circumscribes the scope of that phrase, while also giving a certain amount of flexibility to courts to adjust to new ways in which prostitution is affected.
I hope that all the case law referred to on page 5 will enlighten the committee on what is and is not included in the terms “prostitution” and “sexual services for consideration”. I would direct your attention, in particular, to the fact that activities not related to prostitution, such as acts related to adult pornography and stripping, have been read out of that definition.
NDP
Françoise Boivin NDP Gatineau, QC
But you see that it's not exactly the definition from Madam Mourani.
Do you think this definition of prostitution by the member of Parliament is necessary, or do you feel confident that the technical briefing is okay?
Counsel, Criminal Law Policy Section, Department of Justice
Prostitution has been interpreted by the Supreme Court in its 1990 prostitution reference. I would just note that Bill C-36 doesn't propose to use the term “prostitution” other than in its preamble.
Conservative
The Chair Conservative Mike Wallace
Do you have anything further to add? No? Okay.
Mr. Dechert, go ahead.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
The government does not support the amendment.
We thank Mrs. Mourani for bringing it forward. In our view, it's unnecessary to define prostitution because the Criminal Code would no longer use that term if amended by Bill C-36. Rather, Bill C-36 focuses on the relevant aspect of the prostitution transaction, such as obtaining sexual services for consideration.
Moreover, the amendment could cause some confusion, as it proposes that prostitution be defined in part VII, which refers to “Disorderly Houses, Gaming and Betting”, and Bill C-36 would place most of the new prostitution offences in part VIII, which are “Offences Against the Person and Reputation”.
For those reasons, we'll be opposing the amendment.
Conservative
The Chair Conservative Mike Wallace
Is there anything further to the amendment?
(Amendment negatived [See Minutes of Proceedings])
There are no other amendments to clause 12.
Does anyone have any further comments on clause 12?
Madame Boivin.
NDP
Françoise Boivin NDP Gatineau, QC
Briefly, just to be clear so that people know what is being done, if I understand correctly—and I am asking the department specialist this—it's actually the article that removes “prostitution” from the definition of “bawdy house” that would be in line with the Bedford decision. Am I correct?
Conservative
The Chair Conservative Mike Wallace
Is there any further discussion on clause 12?
(Clause 12 agreed to)
Now to the next clauses.
(Clauses 13 and 14 agreed to)
(On clause 15)
I believe we have three amendments to clause 15.
The first amendment has been put forward by Madame Boivin:
That Bill C-36 be amended by deleting Clause 15.
I am ruling, as the chair, that this—
Conservative
The Chair Conservative Mike Wallace
Well there is no discussion. It's out of order. It's inadmissible, so no.
It's inadmissible and here is why. In this case it's very simple. If you can, as a committee member, vote against a complete clause, you do not need to move an amendment to remove it.
Your action to vote against automatically removes.... So it's an inadmissible amendment to actually try to remove it. It's just the rules of the system about deleting a complete clause. You can delete lines within a clause, you can add lines in a clause, you can add a clause, but you cannot, through amendment, delete a clause. You need to vote against a clause, as it has the same effect.
That is my ruling.
NDP
Françoise Boivin NDP Gatineau, QC
Previously in reviewing other bills, we presented amendments and you ruled if they were admissible. The person presented their amendment and at the end of the presentation, you would rule if it were admissible or not admissible. It's the first time, Chair, and I say this in all due respect, that you have proceeded this way.
Conservative
The Chair Conservative Mike Wallace
Here is my answer to that question. This amendment is inadmissible because you're removing a clause. When we come to the actual clause itself, you'll have time to speak to why that clause should be removed.
Conservative
The Chair Conservative Mike Wallace
The only other thing you can do in terms of procedure, just so that everyone knows, is that you can challenge the chair and then we would ask.... But at this point if there is no challenge, we are moving on because NDP-1 is inadmissible.
Now we're on to NDP-2 to clause 15:
That Bill C-36, in Clause 15, be amended by deleting lines 6 to 15 on page 8.
As I just mentioned, you're able to amend by removing or adding lines within a clause without removing a complete clause.
Madame Boivin, you are the mover of the motion so the floor is yours.
The only other item I want the committee to understand is that if NDP-2 passes, it affects G-4, and G-4 would then be out of order because of what would have previously happened to the lines as of NDP-2.
The floor is yours, Madame Boivin.
Françoise Boivin NDP Gatineau, QC
Thank you, Mr. Chair.
I'm not surprised about my NDP-1 amendment. That may have been pushing a bit too far.
However, I'd like the NDP-2 amendment to be clear for everyone, since it has to do with clause 15. This is the clause that witnesses probably talked about the most last week with clause 20 and the $20 million amount. That's essentially what they talked about last week.
We especially heard about the premise of the preamble of Bill C-36. That's part of the bill, and we'll see it later on. The witnesses—regardless of where they stood on the issue of prostitution—told us that sex workers are victims.
I repeat. This means that someone cannot be both a victim and a criminal for the same action. We need to be consistent. When it came to specific questions from most of the witnesses who support the government and Bill C-36, unequivocally— with the exception of a few reservations for moral reasons, which I respect—this appeared to be an aspect in support of the bill.
I think that we need to be consistent, at least with this bill, and we need to ensure that we don't revictimize the people involved in prostitution. That's the very essence of the NDP-2 amendment. It's a matter of making it consistent, at the request of almost everyone. It even seemed to have the support of Conservative members of this committee.
Conservative