Justice Committee on Feb. 8th, 2022

[Sandra Wesley]

Whether or not it's working is a difficult question.

We highly disagree with one of the main objectives of the law. One of the objectives of this law is to send a strong message that as Canadians we have a social project to eradicate sex workers, that we hate sex workers so much that we want to make sure there is not a single sex worker left in this country at the end of this repressive regime.

Obviously, every single aggressor, every violent man and exploiter out there, hears the same message, that the Government of Canada wants to eradicate sex workers. There are plenty of cases of aggressors who don't feel that they're committing anything particularly bad when they're being violent towards sex workers, because they're doing what the government also wants to do, which is to eradicate sex workers.

We have the example in the United States last year. A man went and shot a lot of sex workers in massage parlours. He felt that he was following guidance from his community that said that you have to eradicate this industry.

For me, whether or not this bill is working.... It's more whether or not it is impacting people negatively when we analyze things from a human rights perspective. The main question we first have to get out of the way is this: Are people being harmed by this law? This is an unquestioned yes. People are absolutely being harmed by this law. The second question is this: Is it worth harming them? For us, as the people who are suffering the consequences of this law, it's obviously not worth it.

I want to add that it's very important to separate sex work from violence towards sex workers. We have a Criminal Code that is full of other laws of general application that should apply when people experience violence, whether at work or elsewhere. It is illegal to kidnap someone. It is illegal to rape someone. It is illegal to drug someone and make them do things. Those things are already crimes. We do not need sex work-specific laws that say that sex work itself is violence in order to prevent those things.

Obviously, I think it's important, when we're talking about violence, not to think that all sex work is all violence all the time, or that the majority of sex workers are just experiencing violence on a daily basis, because that's not the case. We know that we're experiencing violence and barriers to accessing care. We're experiencing health risks from this.

In the context of a global pandemic, we should be really concerned about health and the knowledge of public health experts. I hope that you will hear from some public health experts who will tell you that decriminalizing sex work is one of the main objectives in the fight against HIV. We will never end the HIV epidemic if we don't decriminalize sex work.

UNAIDS has as one of its objectives for 90% of countries to have decriminalized sex work by 2025. Canada, by choosing to ignore this and aggressively criminalize sex work, is choosing to not be a global partner in the fight against HIV.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Miss Wesley, can I ask you another question? We heard from a previous speaker before this panel about statistics on those who are working in the industry, those facing charges, etc.

From your experience, can you speak to us about what you see through your work? Who is working in the sex trade? Who are the clients? Who's the most vulnerable or most at risk of violence? What is the misinformation that you hear on sex workers and the legal system? I think you started to talk about that.

[Sandra Wesley]

It's very important to first point out that the data regarding the justice system is very incomplete, because most sex workers are not in those files. When we are caught up in a criminal investigation, we will not disclose facts about ourselves if we don't have to, so that is very limited.

What we see at Stella, in the context that we make, is that sex workers are incredibly diverse. We have women of all ages. It is completely false to think that most sex workers are young. At Stella, the majority of the women we see are in their thirties. We see a lot of women in their twenties and forties. We see women in their fifties, sixties and much older, as well, who have been working in the sex industry for a long time, or who are starting to work in the sex industry.

We see a large proportion of trans women and non-binary people. We don't serve men, but we know that they're also very present in the sex industry. They're not seen in the statistics so much, because there isn't a big social project to see men as victims of sexual exploitation and to eradicate them. There's not as much police enforcement that directly targets men, so we don't see them as much in the stats, but they do exist in our community.

Indigenous women—

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Wesley. We have to go to the next question. I'm sorry.

Thank you, Madam Diab.

Madame Michaud.

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

I want to thank the witnesses for joining us today.

Earlier, I tried to get a sense of the situation from the Department of Justice officials. However, it was a bit difficult for them to express a personal opinion, which we understand. I suppose that it will be a little easier to get that perspective from you, since you have been on the ground since Bill C‑36 was passed.

Have the three main goals of the legislation been met? If so, was there any negative impact?

Ms. Wesley, you spoke about the negative impact on women and girls in the profession, for example. Could you elaborate on that impact?

[Sandra Wesley]

Yes, of course.

It should be noted that protection isn't necessarily the main goal. We can't eliminate sex work and protect people engaged in prostitution at the same time. These two goals contradict each other.

We find that criminalization complicates all stages of sex work in every part of the industry. A woman working on the street is considered a criminal. She can be arrested if she works near a park, school or daycare. These places are everywhere in an urban setting. She can also be arrested if she blocks traffic while working. Her client is also considered a criminal.

Before the implementation of this legislation, when a client arrived, you could talk with the client for several minutes and look in the car to see whether it was safe. You would negotiate a price, a service, the use of condoms and the location. Once an agreement was reached, you would get in the car and leave with the client feeling safe.

Now the client can't stop for five minutes to have a conversation with a person engaging in prostitution before that person decides to get in the car. He can be arrested just for having that conversation. It's a crime to even talk about condom use. The person engaging in prostitution must then get into the car very quickly. As a result, she's completely at the mercy of a man driving a vehicle, who can take her anywhere he wants, and who can suddenly negotiate a different price or service.

At Stella, we often talk to women who tell us that a client has picked them up in a neighbourhood such as Montreal's Hochelaga‑Maisonneuve and they have ended up on Montreal's south shore or in the west end of the city. Obviously, they can't jump out of a moving vehicle. This legislation creates all sorts of very dangerous situations.

Take the example of a woman who works online and who posts advertisements on a website. First, websites are always closing. She must know how to use cryptocurrency or know other ways to post an advertisement, which aren't available to many women. Often, she must enlist the help of others and risk her privacy.

If the client tries to contact her, he's committing a crime. That's why clients don't want to give their real names and they don't want to negotiate the transaction in detail. All this is done through codes. Often, after the client has made an appointment and meets the sex worker in person, he makes his requests and negotiates a price. Again, this places the sex worker in a situation where violence can occur.

In addition, all third parties are considered criminals under the legislation. There are exceptions, but there are also exceptions to the exceptions. Anyone who helps a person engaging in prostitution is committing a crime. These people must hide from the police and must protect themselves. As a result, this doesn't encourage people to create good working conditions for themselves. On the contrary, it encourages people who use poor practices to work in the industry. An employer who provides good working conditions won't necessarily want to be involved in a crime. This situation leads to several forms of exploitation.

Sex workers are being prevented from negotiating good working conditions. This violence can take many forms. Third parties may be co‑workers, the driver, the receptionist, the boss or other sex workers. The spouse may also be considered someone who helps the sex worker do her job, rather than a spouse.

If the sex worker is a victim of domestic violence, she won't have access to domestic violence resources because everything will be viewed through the lens of sex work. The spouse may threaten to take custody of the children or contact a child protection agency concerning the children. These threats are often successful.

At Stella, we meet many women who live in complete fear because they have an abusive former or current partner who threatens them. They know that, if these men actually end up in family court and claim that they're committing crimes because they're sex workers, they will probably lose custody of their child.

This strips social workers who work in child protection, for example, of all the tools that they need to address the real issues in a family so that the children stay in that family. They must stand behind their professional association, which tells them that they can't help people who commit crimes. This prevents them from working with and protecting sex workers in difficult family situations.

We can also talk about the fact that advertisements have been criminalized and the resulting devastating impact. Before, many women would place an advertisement in the Journal de Montréal, for example. It was a very simple and inexpensive process. You would write a little blurb, go to the newspaper in person, pay cash and post an advertisement with a phone number. The newspapers have had to stop running these advertisements because it's now a crime. Women must turn to online advertisements.

These women may not have smart phones, internet access or credit cards to pay for their advertisements. They're now expected to post more photos and communicate more with clients. You can imagine the fear felt by these women, especially those in their 50s and 60s, who lined up in our office after this legislation was implemented. They wanted to know how to do everything. They had just lost their source of income overnight. They had to find new ways of working, which could put them at significant risk.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Wesley.

Go ahead, Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I want to start by thanking Ms. Wesley for her important testimony today, and to also thank Stella for the important work it does in the community and working with sex workers.

I was trying to pick out what I thought was the most important thing you said. You said so many important things, I'm having a little trouble, but I want to focus on one thing. I'm going to paraphrase you here. You said that defining sex work as the violence prevents reporting the actual violence. I think the parallel there is that defining sex work as exploitation also prevents reporting real exploitation.

Could you give us some examples of how that works in real life, with the law as it exists?

[Sandra Wesley]

Yes, absolutely. When it comes to work exploitation, the concept of exploitation in a workplace context is not something that usually belongs in the Criminal Code. It's something that belongs in employment standards, where we as a society have given ourselves recourse in case of bad working conditions.

Sex workers don't have access to this. If our boss refuses to pay us, well, there's no tribunal we can go to for that. If our workplace is unsafe, there's no occupational health and safety commission that can come in and help us with that problem. A lot of workplace exploitation comes simply from the fact that we don't have access to those things. In every other industry, when workers in any industry have faced exploitation, we have focused on giving the workers rights as a way to end exploitation.

When we criminalize an industry, we're making exploitation the default setting in that industry. The worker's not protected. We're talking about power dynamics. A lot of people mention the power dynamics between sex workers and other people around us. Those power dynamics exist because we don't have legitimacy. We don't have rights. We can't turn to anyone. The only thing that exists that we could turn to, in theory, is criminal law. What that criminal law says is not that there's a difference between a good boss and a bad boss, or that there's a difference between a good co-worker and a bad co-worker; it says that all of it is inherently exploitative and inherently wrong.

What this means is that if someone works in, say, an escort agency, and everything is great, well, her colleagues are committing exactly the same crime as a boss who's beating the employees, taking all their money and doing all kinds of other things. What it means is that when we go to the police, if you look at the data in terms of charges that are given to people, very frequently the only charge given is a procuring or material benefit or advertising charge. If those charges don't need to prove exploitation, violence or anything bad happening, then what are we prosecuting, exactly? The best co-worker in the sex industry is committing the same crime as the worst one. That is illogical, obviously, and it incentivizes people to exploit us.

Then there's all of the other types of exploitation in our personal lives. What sex workers experience, and what is often portrayed.... Sometimes there are graphics put out about pimps exploiting their partners at home. It's the exact same pattern as any domestic violence situation. In domestic violence, abusers take control of family finances. That's a feature of domestic violence that is the same whether someone is a nurse or a sex worker or any other.

In a situation of domestic violence, the person will threaten and maybe force the person to work more than they want to work, and do all these other things. It's no different for sex workers. What is different, however, is that we have a law that doesn't even allow for domestic violence to be part of the conversation, because our partners are not even seen as our partners. The law goes as far as trying to establish what would even constitute legitimate cohabitation with a sex worker. When we go to police, instead of being directed towards domestic violence services, we get directed towards anti-sex work services that will tell us that we need to stop doing sex work, and then will try to convince us that we're actually victims of sex work and not of violence.

Beyond the criminal law, this is also what we see in community services. The vast majority of domestic violence shelters across Canada operate from an anti-sex work, prohibitionist perspective. They will not allow someone who's currently working in the sex industry to access services. We see countless women at Stella who are trying to escape violence and end up in a situation where, if they go to police, the sex work will be investigated. They do not want that. They cannot go to a shelter, because they are not welcome there. They have to find solutions on their own to get out of that situation.

Obviously, if someone wants to exploit the labour of someone else, they will pick someone whose labour is available for exploitation, and anyone who's criminalized will be a good target. That's why we see also exploitation of undocumented migrants. Anyone in our society who doesn't have legitimacy, who doesn't have access to services or who doesn't have access to human rights will be the targets of people who want to abuse people. We think there are many other laws in the Criminal Code that address many types of violence.

I also want to bring up human trafficking, which someone mentioned earlier. Human trafficking is not, as far as I understand, within the scope of this study, and there's this tendency to conflate trafficking and sex work, to use them interchangeably or to otherwise act as if all sex work is trafficking. It's very important not to get caught up in conversations about trafficking.

If we decriminalized sex work and repealed the provisions of the PCEPA, the human trafficking provisions at that point would still stand. If something met that threshold, those laws would still exist. They're used very problematically in our communities but, at the end of the day, they still exist.

We do not need to criminalize sex work in order to criminalize something that we would consider to be trafficking.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

I'll now go to Mr. Brock for five minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

I'd like to thank both Ms. Botting and Ms. Wesley for their presence today and for their very helpful responses to a number of questions by my colleagues.

Prior to becoming an elected member of Parliament, I enjoyed a 30-year legal career. For the last 18 of those I was a Crown attorney in Ontario. I had extensive experience dealing with the prosecution of human traffickers and other exploited victims, so this particular area is near and dear to my heart.

I'd like, time permitting, to address both of you ladies. I'd like to start with Ms. Botting.

Ms. Botting, have you had the opportunity to listen to the testimony of Ms. Wesley?

[Carolyn Botting]

Yes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Ms. Wesley, among other things, pitches and makes the strong argument that Bill C-36 and the legislation that was adopted is more harmful to sex workers than the stated objectives. I have information before me from the Library of Parliament that would suggest that there might be a disconnect in that particular statement, and I'd like to hear your thoughts on that.

Statistics Canada, in 2021, published that crimes related to the sex trade found a decrease in reported injuries and homicides of sex trade workers after Bill C-36.

Would you agree, with your background in policing, that the changes made by that bill have made individuals who sell sex for money safer? Please explain why or why not.

[Carolyn Botting]

I'm certainly no expert on the statistics, and I don't have any data to support what you have said. I also love Ms. Wesley's passion for the work she does.

My understanding of Bill C-36 is that sex trade workers are not charged under this law. At least in my city, we do not target the sex trade the way Ms. Wesley suggests, and we don't target the sex trade workers. We have not for years. We are targeting the abusers who are involved with the most vulnerable. Very often, that's youth.

My question, if I may ask, would be how does Ms. Wesley suggest we protect the youth who are involved if we don't have laws against those who procure them and they haven't met the threshold of human trafficking?

The other thing that we do in our city is work with the victims or with the sex trade workers, if they want to work with us, to provide them safe resources. We do not force them to testify the way we historically did many years ago.

I began working in this field in around 2003, and I was working on the prosecution side—I believe my first was 2005 or 2007. We do not have the practice of forcing those involved in the sex trade industry to, one, co-operate with us or, two, testify.

My biggest concern with repealing this law completely would be how we protect people when they don't fall within the laws of human trafficking, sexual assault or assault, but are simply being recruited and there's no law to protect from that.

If a girl or boy came to their school resource officer and said, “Hey, this girl in my group home or school is really attempting to get me involved and I need help,” where's the law that applies to that situation, and how do we prevent it? That's how I would respond to that question.

[Larry Brock, Conservative, Brantford—Brant, ON]

That is consistent with my interpretation that each jurisdiction has a different focus in terms of how it applies the law. It should come as no surprise that provincial objectives and provincial statistics probably differ as well.

Taking that one step further again and contrasting Ms. Wesley's statement in her testimony so far, she also says it would be an error to conflate Bill C-36 with human trafficking.

I think, to an extent, you probably would agree with me that it's not really conflating the two issues. The two issues are really hand in hand, at least from a prosecutorial standpoint. I've seen numerous instances when, once victims of human trafficking had gone through that ordeal, they ultimately decided to continue selling sexual services on their own after they freed themselves from their abuser.

[The Chair, Liberal, Randeep Sarai]

Unfortunately, Mr. Brock, we're out of time.

I'll let Ms. Botting give a brief answer.

[Carolyn Botting]

I agree that they are similar, but they're not the same. I had a train of thought and I lost it.

Sometimes they go hand in hand.

I'll just reiterate my biggest concern. Where is the protectionary law? If Bill C-36 is a protectionary law, then human trafficking is the trafficking side, and they are not always one and the same thing.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Botting.

Ms. Dhillon, we will move over to you for five minutes.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Mr. Chair.

Ms. Wesley, in practice, how would decriminalization work?

How can the government ensure that sex workers are properly protected if their livelihoods are decriminalized?

What are the benefits of decriminalization versus legalization?

[Sandra Wesley]

In our view, decriminalization is better than legalization.

Legalization creates a very strict little framework, where sex work is legal. It continues to ensure that anyone who doesn't fit into that framework is considered a criminal.

Our main goal is obviously to protect the most marginalized women in our communities. These women work in informal settings, don't comply with the very complex rules, or don't have a work permit, and so on.

Decriminalization removes sex work entirely from the criminal sphere. In addition, decriminalization provides access to all the other protections to which other workers are entitled. As I said earlier, this may include access to labour standards; the Commission de la santé et de la sécurité du travail, or CSST; employment insurance; or all the other protections available in other places.

The Canadian Alliance for Sex Work Law Reform includes 25 groups across Canada. We held an extensive 18‑month consultation with all groups formed by and for sex workers in Canada.

I assume that you'll receive this document. It outlines not only the situation at the federal level, but also the provincial jurisdiction issues. Labour standards, for example, are obviously a provincial responsibility.

We took all this into consideration. It's a very cohesive document. The solution to most issues is simply to remove all the rules specific to sex work. The immigration rules must also be removed. Right now, if you aren't a permanent resident and you're involved in sex work, you can be removed from the country. We must address all these issues.

I want to briefly address what was said earlier about police repression. There are very concrete examples of this repression. Decriminalization ensures that this type of situation can no longer occur. In Montreal, there's the RADAR program. Through this program, the City of Montreal police department asks hotel staff and taxi drivers to identify sex workers and report them. This creates a sense of fear among sex workers, since they can no longer safely use hotels.

In the case of some police operations, the police officers come to the workplace. It isn't uncommon to see 10, 20 or 30 police officers detain women, ask them to show identification and conduct checks. In 2019, there was a particularly violent police operation. The police took note of all tattoos and body piercings. The women were told that this would help the police identify their bodies when they were found dead. Scaring sex workers into stopping sex work is a well‑known American technique. Can you imagine the impact of this type of police operation on sex workers?

These are concrete examples. Even though police responses don't necessarily result in the arrest of the sex worker, it creates an environment of fear. The consequences are enormous. In addition, it's a serious violation of human rights.

Decriminalization would eliminate the power of police to harass sex workers in various ways and to invade their workplaces.

With respect to protection, other sections of the Criminal Code deal specifically with violence in all its forms.

Some women have criticized the Criminal Code and the prison system for not responding properly to violence against women. All types of reforms may be needed in this area.

Sex workers want to be included in this work. They don't want specific legislation prohibiting sex work. Protection and prohibition are incompatible. These two concepts simply don't mesh. It may be necessary to choose the preferred option.

I hope that this answers your question.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Yes, you answered the question.

Are marginalized people worse off?

What more can we do to help them?

[Sandra Wesley]

The most marginalized women suffer the most consequences. They also have the most adversarial relationship with the government and they're over‑represented in prison.

In Quebec, about 80% of women incarcerated in a provincial institution have sex work experience. They're often indigenous women, transgender women and migrant women. These women are most often targeted by police officers and by abusers. Both groups have similar ways of targeting their victims.

In our opinion, this should all be looked at from a decriminalization perspective.

This doesn't mean that decriminalization is necessary because some women have chosen this profession, which they love. Instead, decriminalization involves greater risks and consequences for the most marginalized people. These include women who are homeless, women who use drugs and women living in poverty. The legislation is very colonial, and it targets indigenous women.

We know that, in Montreal—

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Wesley. I'm sorry to interrupt; you're very impassioned.

Next, for two and a half minutes, we have Ms. Michaud.

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

Thank you, Mr. Chair.

Ms. Wesley, you spoke briefly about the case of Marylène Levesque earlier. Last year, when I was on the Standing Committee on Public Safety and National Security, we studied this tragic case. I believe that we invited you to appear.

You spoke about the violence that sex workers face, and you said that the police officers focus a great deal on this matter. This makes them reluctant to report, to file a complaint or to lay charges. How could this be addressed?

Is there a need for legislative change or a need to change the mindset of law enforcement personnel in terms of how they view sex workers?

What are your thoughts, briefly?

[Sandra Wesley]

The first step must be decriminalization. In a situation where the police officers are mandated to eliminate the sex industry and are told by the Parliament of Canada that all sex work is a type of exploitation, there isn't any room to build anything positive with the police.

Once decriminalization takes place and the police no longer have the elimination mandate, we can obviously develop a relationship with the police that may one day be more positive. It will then be possible to really distinguish between violent and non‑violent acts, and between criminal acts and acts that fall under the jurisdiction of other parts of the government.

Right now, this is impossible. You can't ask a police officer to simply enforce the law based on their personal discretion. We're seeing this now. Obviously, the police officers aren't arresting every sex worker, every client and every third party. That would be absurd and would require extreme resources.

We can't have legislation that enables police officers to arrest all these people and then ask these people to trust the police and hope that they will use the legislation only in the situations where it serves a useful purpose and where violence is involved. We really need to take that mandate away from the police. At that point, we can see whether things change.

I think that we must also consider the fact that the relationship between the police and marginalized communities, particularly indigenous and transgender communities, is adversarial and that this extends well beyond the legislation criminalizing sex work.

In Montreal, indigenous women are 12 times more likely to be stopped by the police than white women.