Justice Committee on Feb. 8th, 2022

[The Chair, Liberal, Randeep Sarai]

Welcome to the second committee meeting of this 44th Parliament to review the Protection of Communities and Exploited Persons Act.

First up, we'll have Ms. Morency, along with Ms. Levman. You'll have five minutes for your submissions, and then we'll go for a round of questions. We are going to keep this within 30 minutes, and then we have to go to the next panel.

Go ahead, Ms. Morency.

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

Thank you, Mr. Chair, for the opportunity to be here today to speak to former Bill C-36, as well as to what we know about the social context to which it applies and its impact.

Available data in Canada and around the world identifies that the majority of people who provide sexual services are women and girls; the vast majority of those who purchase sexual services are men, and the majority of profiteers and procurers are also men. Unfortunately, there's limited data on the involvement of LGBTQ2 individuals.

The 2006 report of the justice committee's subcommittee on solicitation laws indicated that about 75% to 80% of persons engaged in the sex trade are female, and about 20% are men or gender-diverse individuals. More recent data from research undertaken by Dr. Benoit of the University of Victoria and Dr. Bruckert of the University of Ottawa are consistent with what the subcommittee reported in 2006.

The reasons that people may provide sexual services are diverse. Their involvement in the sex trade is influenced by a variety of socio-economic factors, including poverty, youth and lack of education. While some involved in the sex trade are independent in the sense that they are sufficiently empowered to control how, when and where they provide sexual services, many others are not.

In response to the Supreme Court of Canada's 2013 Bedford decision, Parliament enacted former Bill C-36, which came into force on December 6, 2014. This bill brought into force a version of the Nordic model, first implemented in Sweden in 1999.

The preamble to former Bill C-36 identified its objectives as including protecting human dignity and equality and preventing exploitation and violence. Consistent with other Nordic approaches, the bill sought to achieve these goals by targeting the demand for sexual services and those who capitalize on that demand. Specifically, the bill created new offences prohibiting purchasing and advertising sexual services as well as receiving a material benefit from others' sexual services and procuring others to provide sexual services. The bill also immunized those who provide sexual services from criminal liability for the role they play in the now illegal transaction for sexual services. These offences also continue to criminalize purchasing sexual services from minors and involving minors in the sex trade.

The parliamentary record indicates that the exceptions to the profiting offence—the material benefit offence—are intended to ensure that those who provide sexual services aren't prevented from hiring bodyguards and others who may enhance safety. The immunities are intended to ensure that individuals are not prevented from selling their own sexual services independently or co-operatively, including from fixed locations.

A June 2021 Statistics Canada Juristat entitled “Crimes related to the sex trade: Before and after legislative changes in Canada” indicates that since the enactment of Bill C-36, those who are convicted or charged with a purchasing offence are almost invariably men; profiteers and procurers are predominantly men, and victims are predominantly female. Both the Criminal Code and Statistics Canada refer to persons who are subjected to offences as victims.

In the six years prior to the 2014 enactment of Bill C-36, 43% of those accused of sex trade-related offences were women. In the five years after the change in legislation, 93% of individuals accused in all sex trade-related incidents were men, and 94% of victims in incidents where a sex trade-related offence was reported were female.

Relevant case law indicates that the material benefit, procuring and advertising offences have been used in cases involving complainants who are predominantly female, under 18, or young adults and vulnerable—for example, due to unstable housing or addictions. Those vulnerabilities are often exploited by procurers or profiteers, who may exercise influence over them in a variety of ways, including by getting them to agree to provide commercial sexual services through psychological manipulation.

Lower court decisions in the context of prosecutions have come to conflicting results on the constitutionality of the material benefit, procuring and advertising offences as they apply to the adult sex trade. The constitutionality of all the offences enacted by former Bill C-36 is currently before Ontario courts in the context of a civil application.

Justice Canada also supports initiatives designed to assist those who have been harmed in the sex trade.

I will conclude here. I look forward to attempting to answer any questions the committee may have.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Levman.

Now we'll go to Mr. Moore for the first round of questions, for six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Ms. Levman and Ms. Morency. It's great to see both of you again. I take it from your testimony about the disproportionate impact that those charged with purchase and profiting post Bill C-36 are men and the victims are disproportionately women.

You took us through how Bill C-36 was a response from Parliament to the Bedford decision. Can you expand a bit more on any information you have through the department on the effectiveness of Bill C-36? I know that's always an interesting point, when we see government having to respond to a court decision. Bill C-36 was that response. Can you expand a bit on the effectiveness of this bill when it comes to going after those who are profiting from the sale of others' sexual services?

[Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Department of Justice]

I would like to make a few comments on the data that we have on the sex trade. It comes from a range of different sources, including social sciences, criminal justice statistics, and of course jurisprudence interpreting relevant offences. The available social science evidence in Canada and internationally tells us about the groups that it studies. For example, Professor Benoit of the University of Victoria and Professor Bruckert of the University of Ottawa have studied practising sex workers in particular locations.

Their research that postdates Bill C-36 concludes that the purchasing offence makes screening clients and negotiating safe transactions more difficult, and that the material benefit and procuring offences prevent sex workers from working together co-operatively and assisting each other. I would note though that the scope of the material benefit and procuring offences is currently before the courts, including the Ontario Court of Appeal in the N.S. matter, and that courts have made inconsistent findings on whether these offences criminalize sex worker co-operatives or sex workers assisting each other.

The parliamentary record for Bill C-36 indicates that Parliament's intention wasn't to criminalize these measures. Obviously we have to wait now to hear about how the appellate courts interpret these offences, which of course has to be done prior to assessing them for charter compliance. The studies I've referred to—

[Rob Moore, Conservative, Fundy Royal, NB]

I don't have a ton of time, but thank you for that.

Are there any cases currently before the courts in which the federal government is intervening or planning to intervene to defend or support the law that's in place, the Criminal Code provisions?

[Nathalie Levman]

Yes, there are, for sure. There's the Canadian Alliance for Sex Work Law Reform matter. The Attorney General of Canada is responding to that. I didn't get to the next part of my data, if you'd like to hear about that. The studies that I referred to focus on individuals who identify as sex workers. Others who have been involved in the sex trade may not identify that way. Those groups tend to be harder to reach. We don't know as much about people who are coerced into providing sexual services or people who have exited.

In my remarks I noted that the Juristat and the available jurisprudence indicate that the sex trade is a gendered practice, and that profiteers and procurers take advantage of women's and girls' vulnerability for their own gain. I can provide some highlights of the data reported in the Juristat, but I would note for the committee that of course Statistics Canada is better placed to provide detailed information on its own data.

[Rob Moore, Conservative, Fundy Royal, NB]

The advertisement online of sexual services is not an emerging issue anymore. It is an issue. What, if anything, is the department doing to improve the law on that front? We hear from police departments and others that greater tools are needed to remove certain ads from the Internet. Is the department doing anything in that regard?

[Nathalie Levman]

I believe that's an enforcement issue. We know from the jurisprudence, which I can speak to, that there are reported cases. Considering the advertising offence, it's most often charged alongside the material benefit and the procuring offence in cases in which people are procuring or profiting from others' sexual services.

The constitutionality of the provision is before both the Ontario Court of Appeal and the Ontario Superior Court of Justice. There is some data in the Juristat, as well, that the committee might find useful on the advertising offence.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

I'll go to Mr. Battiste.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

We did a study on this at the INAN committee, where we looked indigenous women who were being exploited. Could you comment a bit on what you're hearing from sex worker-led organizations, community groups and, particularly, marginalized groups like indigenous women.

Could you give us a bit of an understanding and elaborate on what's going on and what you're hearing?

[Nathalie Levman]

The research shows that due to colonization and intersecting factors of marginalization, indigenous women and girls are disproportionately represented among those who are involved in the sex trade or who are trafficked for sexual exploitation.

Individual groups representing indigenous interests and individuals as well have very different perspectives on the impact of the laws. Some advocate for decriminalization, while others strongly support the nordic model on the basis that the sex trade is a product of colonization that has disproportionately negatively impacted indigenous women and girls.

We see from the data that is available a very disproportionate number of indigenous women and girls involved in the sex trade generally. That's from the data that's available from the missing and murdered indigenous women and girls report, as well as data from Dr. Bruckert's and Dr. Benoit's research.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Ms. Morency, would you like to chime in on that as well?

[Carole Morency]

No, thank you. I'm fine.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

What changes do you think need to be made to protect sex workers and, in particular, the marginalized sex workers from violence?

[Nathalie Levman]

I can really speak to you only about the knowledge that we have right now. Safety issues were front and centre when Parliament was considering Bill C-36.

Parliament, back then, acknowledged that some people choose to engage in sex work and that that's likely to continue to be the case, even in a regime that's designed to end the sex trade. The record indicates that it's for this reason that the legislation doesn't prevent individuals from implementing certain safety measures, in particular those identified by the Supreme Court of Canada in its Bedford decision.

In particular, the parliamentary record indicates that the legislative exceptions to the material benefit offence mean that sellers of their own sexual services may interact with others on a personal or commercial basis in the same way as anyone else, including if they want to rent particular locations or hire persons to provide services for fair market value. The bill's immunity provision means that they will not be held criminally liable for providing sexual services independently and co-operatively, including by pooling resources to pay for services that are excepted by the material benefit offence.

Acknowledging that these are live issues before the court, I would close my remarks there.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

You mention two kinds of polar opposite approaches to this. You mention the Nordic model and you mention what's currently.... Are there any other types of systems that we should be looking at as the Canadian government? I hate to say best practices around sex work, but are there different practices that aren't either legalizing it or keeping it the way it is? I'm just wondering if you could speak to any other countries that are taking any innovative approaches to laws on this.

[Nathalie Levman]

There is a range of different legal regimes applicable to the sex trade that have been implemented around the world. The prevailing debate, though, internationally, concerns whether decriminalization or the Nordic model best addresses the risks associated with involvement in the sex trade.

You already know that decriminalization involves removal of all sex trade-specific laws to enhance and protect sex workers' health and safety, so sex trade-specific regulations may or may not apply in that context. However, the critical feature of this model is that criminal laws don't. New Zealand is the usual example of decriminalization.

The Nordic model, which is also referred to as abolition, the equality model or the end-demand model, seems to reduce the demand for sexual services as much as possible, with a view to ending the sex trade by criminalizing those who create the demand and those who capitalize on it, but not those who provide the services. This is because this approach posits that the sex trade both reflects and perpetuates systemic and structural discrimination against women and girls. Eight countries have implemented the Nordic model to date: Sweden in 1999, Norway and Iceland in 2009, Canada in 2014, Northern Ireland in 2015, France in 2016, the Republic of Ireland in 2017 and Israel in 2020.

There are two other models, and I believe you referenced a couple of them. One is legalization. It involves a regulated sphere in which the sex trade is allowed to take place, with criminal laws applying outside that sphere. Germany and the Netherlands are the usual examples of that model. Finally, there is prohibition, which criminalizes all of the involved parties, both those who purchase and those who provide sexual services, as well as anybody who involves themselves in anyone else's sexual services, including by profiting from them. All the states in the U.S. have implemented this approach, with the exception of Nevada, which has legalized brothels.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Battiste.

I'm going to go over to Madam Michaud.

Madam Michaud, you have six minutes.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

I want to thank the witnesses for joining us today. I appreciate it.

Ms. Levman, Bill C‑36 had three goals. You talked a bit about them. The bill aimed to protect people engaged in prostitution, who are considered victims of sexual exploitation; to protect communities from the harm caused by prostitution; and to reduce the demand for sexual services.

Based on the data that you have managed to collect in recent years, since the passage of the Protection of Communities and Exploited Persons Act in 2014, do you believe that these goals have been met?

I want you to provide an overview of the situation.

[Nathalie Levman]

I've already gone over the available data for the committee for members' information, but I'd be very happy to speak to the bill's objectives, which are, of course, articulated in its preamble as well as in the parliamentary record, which includes the Department of Justice's technical paper on Bill C-36, because it was tabled before both committees that studied that bill.

The record indicated that the bill's ultimate objective is to reduce the demand for sexual services, with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible. The record also indicates that the Nordic model generally, and Bill C-36 in particular, is aimed at protecting the equality and dignity of women and girls, because the model views the sex trade as disproportionately and negatively impacting this group, in particular the most vulnerable among them. The Nordic model also posits that the sex trade both reflects and perpetuates structural and systemic discrimination against women and girls.

The parliamentary record also points to a range of harms that are perceived to be caused by the sex trade, and the legislation is aimed at addressing those harms. They include harm to the individuals involved, in particular the most vulnerable, who may not be sufficiently empowered to protect themselves; harm to women and girls generally by treating them as a commodity; and harm to all of society on the basis that societal inequalities negatively impact everyone.

The record also indicates that the bill was intended to avoid the harms that some perceive to be caused by decriminalization and legalization, such as a larger sex trade and higher rates of human trafficking.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

In light of this information, can you say whether these goals have been met?

Should the Criminal Code be amended?

Should the legislation be updated because these goals haven't been met?

Can you elaborate on this topic?

[Nathalie Levman]

I tried to give an overview of the relevant data that speaks to all of this, including the Juristat from Statistics Canada and the jurisprudence. We have numbers for charges under each offence that can be reviewed in the Juristat itself. I think that the Juristat could be very helpful to this committee in assessing the impact of Bill C-36.

Does that assist you? It's not my role to provide a personal opinion.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

I understand.

Thank you.

I gather that parts of Bill C‑36 have been ruled unconstitutional at the trial level because the provisions make it harder to protect the health and safety of people who sell sexual services.

Do you have any recommendations?

Very hypothetically, how could these parts be improved if they were declared unconstitutional?

Can you make any suggestions?

[Nathalie Levman]

No, but I could speak to the charter jurisprudence, if that could help.