Justice Committee on Feb. 8th, 2022

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

Yes. This will help us.

[Nathalie Levman]

The constitutionality of the sex trade offences has been and remains before courts. Some of these offences have been assessed for charter compliance at the trial level in the context of prosecutions. In particular, the material benefit, the procuring and the advertising offences have been considered, with conflicting results.

At the Alberta Court of Appeal, we have the Kloubikov case in 2021. That case struck down the material benefit and procuring offences. Then in N.S., the Ontario Superior Court of Justice struck down all three provisions. Both decisions have been appealed, so they are before the Alberta and Ontario appellate courts. Also, in three 2021 decisions that were subsequent to the N.S. decision, the Ontario Superior Court found the N.S. decision plainly wrong and refused to allow it.

One of the main issues the court is grappling with is the scope of the material benefit and procuring offences, and in particular whether they capture sex worker co-operatives or sex workers who help each other. The parliamentary record, as I've said, indicates that these activities are not intended to be captured, but some decisions have found otherwise, so it's a live statutory interpretation issue that has to be resolved prior to assessing the provisions for charter compliance.

It's very difficult at this stage to answer your first question, when we're not even sure what the courts will say about the scope of the offences.

[The Chair, Liberal, Randeep Sarai]

Thank you, Madame Michaud.

I'll now go over to Mr. Garrison.

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

I thank the witnesses for being with us today.

I think Mr. Moore and I are the only ones on the committee today who had the privilege of being in the previous Parliament, which enacted this bill. At the time, one of the few things on which there was unanimous agreement was that there should be a comprehensive review of the act and provisions five years after it came into force. Given that it was proclaimed in 2014, this review has been due to begin for the last two years. I'm not laying that on the government. I'm laying it on Parliament, that we're a bit late in starting this.

My first question has to do with whether the Department of Justice, in anticipation that this review was legislatively required, did its own research or commissioned research. The review calls for a comprehensive review of both the provisions and the operation of the act.

Did Justice commission any studies itself, or are you simply depending on other studies that happen to have been done?

[Nathalie Levman]

We did partner with the crime statistics division of Statistics Canada to do the Juristat. A Juristat was done just prior to the enactment of C-36 for a comparison. Soon we will be releasing a report on the experiences and characteristics of those who were served by the organizations that received the funding that was attached to Bill C-36.

We also, of course, always monitor jurisprudence, secondary sources and research, etc. That is a normal part of our work, so that we can understand what's going on and how the bill is impacting others from the point of view of stakeholders.

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

Those who have followed the public positions I've taken on this will know that I was hopeful we could involve those most directly impacted by the law, and that is the sex workers themselves, in the design and in setting the scope of this study.

What you've just told me now confirms to me the importance of the testimony we're going to hear from those witnesses, because what we have is really just a review of case law and police charging statistics, and we don't really have, from Justice, the comprehensive review that we'd really need on this bill.

Again, I'm not casting that at you. I'm just saying that we don't have that available here. I know the committee will keep in mind, as we continue to invite witnesses to the committee, that we really need to have a good balance that includes those who are most directly affected by the legislation.

Ms. Levman, when you reviewed the objectives of Bill C-36, the original bill, you reminded me of what my original objection was. The bill really comes from a prohibitionist stance, so its objectives are to stamp out, reduce and remove sex work. Those are laid out in the objectives as you described them.

Would you agree with me that that is the premise behind Bill C-36?

[Nathalie Levman]

All Nordic approaches aimed to end the sex trade. That is because they view the sex trade as a form of discrimination against women and girls and a problem for their equality. So yes, that is one of the objectives, but I think Nordic model supporters would tell you that it's very different from a prohibitionist model in the sense that the Nordic model posits that there is a power imbalance between the person who purchases and the person who provides sexual services, and that power imbalance is recognized by not using the criminal law against people who provide their own sexual services. In that sense it's very different from a prohibitionist model.

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

The Bedford decision, which precipitated this action by Parliament, was fairly sweeping in wiping out all the provisions that criminalized those involved in sex work.

I'm asking for a legal opinion, not a personal opinion. How would you say the court cases that are now coming forward are dealing with the Bedford decision versus Bill C-36? In other words, are any of those cases focused on whether Bill C-36 and its current provisions are consistent with the Bedford decision?

[Nathalie Levman]

As I said, the case law comes to very different conclusions. We have conflicting results, and I've explained that already, but maybe I can note, as you'll likely recall, that during the study of Bill C-36 some parliamentarians did express their view that Parliament isn't precluded from imposing limits on where and how the sex trade may be conducted. That's from the Bedford case itself, in particular to protect the vulnerable and society from the harms they view as being associated with the sex trade.

These parliamentarians noted that the premise of any charter assessment has changed, because Bill C-36's objectives are significantly different from those of the previous regime. The bill would make the sex trade illegal. Bedford was dealing with a regime in which the transaction for sexual services was legal. It was a legal activity, as the Supreme Court clarified.

Parliamentarians—those in favour of the bill, of course—also noted that the bill attempts to balance the interests of those who choose sex work and are in a position to take steps to protect themselves with the interests of those who are not, by criminalizing purchasing and third party involvement while also ensuring that sex workers aren't prevented from taking certain steps to protect themselves as identified by the Supreme Court of Canada in its Bedford decision.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

I want to thank you, Ms. Levman and Ms. Morency, for your time.

We're now going to suspend for a minute while we get the next witnesses.

[The Chair, Liberal, Randeep Sarai]

Thank you both for joining us.

We're going to allow each of you to speak for five minutes. We'll start with Ms. Botting and then have Ms. Wesley after that. We'll have questions, and there will be six-minutes rounds, and we'll go from there.

I will pass it over to you, Ms. Botting.

[Carolyn Botting, Sergeant, Ottawa Police Service, As an Individual]

Good afternoon. Thank you for allowing me the opportunity to speak.

I would just like to start by saying that I am coming as a private citizen, although it will likely be discovered that I am a police officer of 25 years. Most of my career has been spent working with victims of vulnerable and gender-based violence and in relation to sexual violence. I would like to speak concerning some of the stuff that I have witnessed in regard, more specifically, to youth involved in human trafficking and procurement.

I could continue to speak, or I could just jump into questions.

[The Chair, Liberal, Randeep Sarai]

It's up to you. You have up to five minutes if you want to make a statement. If not, then we can go over to Ms. Wesley, and then we'll go to questions afterwards.

[Carolyn Botting]

I don't need to take any more time.

[The Chair, Liberal, Randeep Sarai]

Okay, we will move over to you, Ms. Wesley.

[Sandra Wesley, Executive Director, Stella, l'amie de Maimie]

Hi. I'm Sandra Wesley. I'm the executive director of Stella, l'amie de Maimie, an organization by and for sex workers based in Montreal.

I know Jen Clamen from the Canadian Alliance for Sex Work Law Reform was supposed to speak, so I had expected that she was going to maybe tell you more about the broad impacts of the law. Hopefully she will get a chance to come and do that.

For one, it's really important to note that groups like Stella represent all people who exchange sexual services. No one comes to start and work in and lead an organization by and for sex workers if they haven't experienced violence, if they haven't experienced difficult working conditions, or if they haven't lived the impacts of the law.

It's very important that you refuse this dichotomy of sex workers who choose sex work and maybe have happy experiences and sex workers who experience violence, who have bad working conditions. We organize to fight for our rights because things are wrong and we need to fix them. That's a very important point that I urge you to resist. Just because we do not give you horror stories and just because we do not share those intimate things with you does not mean that those things do not exist and that it's not who we're speaking about.

First, the entire PCEPA needs to be repealed. It is a law that is dangerous and that is harming people in many different ways. There's no middle ground. There's no repealing some of it or tweaking it to make it acceptable. It is a law that harms people, that puts people at risk of violence, that encourages exploitation in the sex industry and that prevents us from having good working conditions.

I also want to point out that there's not a lot of debate about the harms of this law. We just heard from Ms. Levman that, as she said, the new objectives have changed the analysis of the constitutionality of this law, which is very similar to pre-Bedford laws in some ways.

What that means in day-to-day terms is that no one is necessarily disputing that this law is killing people, that it is putting people at risk of violence, that it is putting people in poverty or that it is doing all kinds of harms to people. It's just that now, with this bigger objective of eradicating us that maybe some people think there's an argument to defend, that it's okay if some of us get murdered in the pursuit of that objective. I just want that to be very clear.

I'm going to list for you a few examples of situations that we see as we provide services to sex workers in Montreal. As we provide services, we make about 5,000 to 8,000 contacts per year with sex workers here in Montreal.

Since the law passed, sex workers can now be evicted from their homes if they work from home. We have many decisions in Quebec where the rental board has evicted people based on the fact that they now do criminal activity in their apartment and therefore that is grounds for eviction. This puts women at risk not only of the actual eviction, but also of threats and extortion from their landlords who, when they discover that they have this power now to evict them, may double their rent, may demand sexual services in exchange for money and may threaten them in many other ways. We see this every day here at Stella.

Then, in terms of employment, it means that because sex work is criminalized and our income is the product of crime, we do not have access to employment insurance. At the beginning of COVID, we didn't have access to CERB and to the new assistance that is available now. We do not have parental leave. We cannot have any recourse with employment standards or with occupational health and safety institutions. All the protections that belong to all workers across Canada are not accessible to sex workers. This has very dire consequences on women we see here every day.

In terms of money, it is very dangerous now for sex workers to use bank accounts or any sort of banking instruments. Platforms such as PayPal and other online payments will track down sex workers and shut down our accounts because of the criminal activity. FINTRAC has been mandated to monitor transactions to spot sex workers under the guise that we might be victims of trafficking, so banks are now tasked with spotting sex workers and reporting us, seizing our money and freezing our money. We see sex workers come in here all the time telling us, “My bank just froze my account because they said my phone number is associated with my escort ad and I looked like a sex worker and they investigated me.” The consequences of that are really dire.

It's the same for simple things like reporting for income tax. Our income is criminal, so what do we do? Do we file a tax return with our income and risk consequences? Do we not do it? Sex workers have to face these decisions every day.

In terms of violence, obviously these laws greatly increase the risk of violence. For one thing, we cannot report violence without any violence against us being reinterpreted through the lens of sex work being violent as opposed to the actual crime that we want to report.

One example could involve a sex worker who is receiving threats or being harassed by a former boss. This person will come here to Stella. We'll sit in our living room with her and go through our options. She will figure out that if she goes to police to report harassment, there's a very high likelihood that she will have to disclose the relationship with this person and that police will then investigate her former workplace. Her former colleagues might be deported or arrested. The receptionist might be arrested. The workplace might be shut down, and police will focus on the fact that she's a sex worker and not actually address the harassment. It's the same thing if there is an assault by a client in a workplace.

We had a very dire example in Quebec City of a young sex worker who was murdered by a client who had been banned from a massage parlour. That massage parlour was not able to report that to police. When she met with him at a hotel, she could not put security measures in place; her objective had to be to protect herself from being detected, because she was participating in a crime at that moment.

We have another example of a Montreal sex worker who was murdered in Alberta. She was working with an agency. When things seemed to not be going okay, the driver was not in a position to be able to call the police to ask for help, because as a driver he was committing several of the offences of the PCEPA. It took three days to convince police to go and actually look in that apartment and find her, because sex work is criminalized.

For street-based sex workers, especially indigenous women, it's very clear to us that all women who are most—

[The Chair, Liberal, Randeep Sarai]

Ms. Wesley, I'm just going to ask you to wrap up, because then we'll take questions.

[Sandra Wesley]

I'll just finish this one point.

Women who are the most at risk of police repression or of unwanted contact with police are the women who are the most at risk of going missing or being murdered. We have examples here in Montreal of sex workers who have gone missing, who have been murdered, who are still missing today because of this constant race to escape from police. It is the same women who face the consequences of this law who are the most at risk of violence. This law plays a huge role in this. It is not the only factor, but it is a major factor.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Wesley.

I will go to our first round of questions.

We'll start with Mr. Morrison.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

The questions I'm going to focus on are for Ms. Botting.

With your experience with frontline policing in Ottawa or in Canada, I'm curious about a few things. I really want this committee to understand what it's like on the streets. I'm glad you're here as a witness for us.

You were involved in a really interesting investigation a few years ago. I remember talking to you about that many years ago. It was a teen pimping operation involving young girls. I wonder if you can explain to the committee here how these young girls managed to control the sex workers. After that, tell us what you as a police officer or as a person learned from that investigation.

[Carolyn Botting]

I just wanted to touch on what Ms. Wesley said and how passionate she is. The safety of the people who are involved in this has to be paramount. What I have observed throughout my career is the vulnerability of recruiters, and the women and girls who are involved in this often become recruiters as a result of the abuse that they've gone through. I agree with Ms. Wesley that many people don't get into this dichotomy of the glorified sex trade work versus the horrors that most of them face. The girls I've met and the girls I work with become recruiters because if they're recruiting, then they're not subjected to the same level of violence. They're now recruiters.

In this law there is a punishment for recruiters, but our laws are such that it is very difficult to prosecute a recruiter who is the middle person and who is also a victim—like the girls who pimped out the young girls in Ottawa—and that evades the actual pimp. The pimp evades the prosecution if we're going after recruiters, so the recruiters are the ones who look like they're the pimps. With these teenage girls, we were never able to find out who was above them. I have no doubt in my mind that they were involved in prostitution.

How did they control these girls? They're young girls. They're the same age. We have to find a way to protect young girls from recruiting other young girls. They were the exact same age. They went to a party; they forcibly confined them; they drugged them, and then they turned them out onto the streets.

In the other cases that I've been involved in the pimp had young girls at the same age—15, 16, 13 years old—bringing them to parties, bringing them to hotel rooms. They were vulnerable victims from areas where we have to question ourselves where they are running from and what they are running to.

Mr. Morrison's question was what some of the solutions would be. We need to ask two questions. One is how we prosecute a person who is procuring when the bigger issue is why they are procuring and where that money is going. The other is how we recognize that the person procuring may also be a victim.

I did have a case where we prosecuted the procurer. She was a 16-year-old girl at the time. We put her through the youth criminal justice system and she testified at the pimp's trial as well. We always viewed that girl as a victim. She was sentenced to two years. What that did for that girl was get her away from everybody she was associated with, and with that in itself she got her high school diploma. She got her college education in those two years, and she's now out in society, married with children, and is actually somebody I contact every now and then.

I don't know if that answers your question perfectly, Mr. Morrison, but some of the solution would be to have social workers in the school deal with high-risk missing youth and recognize the signs. The girls I know and with whom I've become friends through working with them, I've learned from their stories and they've passed this along.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Thank you.

I'm just wondering if you could tell the committee here what tools you see that could be added to policing that would actually have a real impact on the sex trade?

[Carolyn Botting]

The one tool that was recently taken away from us, which had a big impact when I was working, was the school resource officers. When you are in a high school and getting to know the youth involved, and they're getting to understand that you have their best interests at heart, that you are a person in the community that they can go to, that's where you begin recognizing the vulnerable victims who could be involved or could be recruited, and then you're able to access those resources. You're able to work with the school; sometimes with the Children's Aid Society there's recruiting going on right inside their own group homes.

The school resource officer and the guidance counsellors are right there, working day in and day out with these vulnerable victims in the high school system. That's one tool that's been taken away from us in our own city.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Botting.

I'll now go to Madam Diab for six minutes.

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

Ms. Wesley, I listened intently and heard your passion. I have a few questions.

How long have you been doing this? You were speaking definitively, saying that this legislation needs to be, I guess, gotten rid of because it's not working and that, in fact, it's working in the opposite direction from what was intended when it was implemented in 2014.

You also talked about working conditions and protection for workers. There are a number of areas where largely women and girls are not treated according to the law the way other people are treated. Can you please share with us a bit more based on your experience of how long you've been working with this, exactly? What is it you would like us to see?

As you know, we're meeting today to understand if the act is working or not. Should we make amendments? If so, what kinds of amendments?

Can you tell me a bit more about your perspective?