Justice Committee on March 1st, 2022

[The Chair, Liberal, Randeep Sarai]

Ms. Franklin, I'm going to have to ask you to wrap it up. Hopefully we'll get to you in a second.

[Kelly Tallon Franklin]

My final point on this is that the Maori indigenous women have said unequivocally that it's not working for them.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Mr. Anandasangaree, you have five minutes.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Mr. Chair, and I'd like to thank the witnesses.

I'd like to acknowledge that I'm speaking to you from the traditional lands of the Algonquin Anishinabe people.

I have a very direct question for Ms. Big Canoe. Are there any elements of this legislation that are salvageable? If so, what are they?

If not, you suggested that we strengthen other laws. Can you give us more suggestions? Can you suggest what kinds of amendments would be required? If you don't have it today, you can also table it at a later point.

[Christa Big Canoe]

Certainly.

To answer the first part of your question, I think you can look at any law and pick and choose which ones may be the most neutral or most valuable. I think, from a fundamental theoretical position, when you say that you want to repeal the whole thing, it's because the process or framework itself is failing to recognize some of the issues.

I go back to Bedford. The issue is that people actually die while doing sex work as a result of being pushed into unsafe circumstances. Quite frankly, some of what this act is doing is recreating the same types of circumstances and situations that put those people into harm. They've pushed them back because of the fear of police or authorities potentially charging who they're selling sex to. What that looks like is that you're seeing some of those same pre-Bedford conditions, whereby people don't have the ability to put safety checks into place.

When I say the position we take as Aboriginal Legal Services is repeal, it's because it needs to be recast. When I say “recast”, I'm talking about legislation that already exists.

One thing that my colleague was just talking about was all of this evidence and information we have since PCEPA came in. What about all the information we had pre-PCEPA about what was and wasn't being done with the human trafficking provisions within the Criminal Code?

There was this big conversation last time I was before the committee about how difficult it was to enforce it. I'm still trying to understand what provisions within this legislative framework changed or increased the ability of authorities to prosecute or do what they should have been doing, quite frankly.

Now that we've put a spotlight on it and now that we have a law, maybe that's where there's increased reporting or uptake. Within our own tool kit of laws, we actually had the ability to prosecute and go after human traffickers. We didn't do it well, so how do we address that issue?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Given the limited time, can I ask that you table some suggestions with respect to strengthening other Criminal Code provisions?

[Christa Big Canoe]

Certainly.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Continuing on that, would it be fair to say that this legislation has had a disproportionately negative impact on indigenous women, particularly those involved in the sex trade?

[Christa Big Canoe]

I'll answer the last part first. Yes, it has had a disproportionate impact.

SWAN unfortunately hasn't been able to be here for technical reasons. I would probably guess that they would be talking about the disproportionate impact it has on immigrant sex workers as well, who are in precarious positions because of fear of being removed from this jurisdiction.

Yes, there definitely is, but that is an ongoing issue that predates even the legislation. It's what we know about the overrepresentation and overpolicing of indigenous people to start with. It's all of those bad stereotypes piled on top of each other.

In terms of the recommendations for particular provisions, I would point you back to the national inquiry, which has some specific findings. It specifically talks about the need to increase culpability in relation to certain violence towards indigenous people.

I'm sorry I didn't anticipate that question, so I'd have to undertake to maybe reply to the clerk with some potential provisions that could work, in addition to my other part.

One thing we have seen post national inquiry is a change under 718.2(e) to include as an aggravating factor when it's an indigenous woman that's harmed.

Think about it. Sex workers get harmed if they can't reach out to police to prosecute these issues for fear of reciprocity or the other harms that this legislation's creating, so where do they go? If they could access and are accessing that and they are a victim themselves, they should have rights as victims in Canadian law as well. One of those changes in law has been to see an increase, potentially, in sentencing, as an aggravating factor if you target and attack an indigenous woman.

That's a good example of enhancing law.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Big Canoe, and thank you, Mr. Anandasangaree.

Now we'll go to Mr. Fortin for a quick two-and-a-half-minute round.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

I thank you also, Ms. Big Canoe.

I'd like to discuss two issues with you.

First, according to your testimony, Bill C‑36, which was passed in 2014, did not really help the situation. If I understand correctly, in your view, the solution is not to crack down.

I would like you to confirm that and tell me whether the provisions currently in the Criminal Code are sufficient and well suited to address this problem or whether the Criminal Code should also be amended.

Should we amend the part of the Criminal Code related to human trafficking and prostitution?

Then I'd like to talk about consent. Earlier, you said that we should focus on the difference between prostitution and human trafficking. A previous witness told us that the main difference was consent. I thought that was an enlightening distinction. I'd like to hear your thoughts on that.

Can we say it is prostitution when the person gives consent, and say it is human trafficking when the person does not give consent, regardless of age?

[Christa Big Canoe]

I don't know if I'll have a chance to answer both, but definitely in relation to your second question, consent in law is sort of the turning point or what helps us distinguish. If someone is consenting—if they're not coerced, if they're not forced physically, if they're not drugged, if they're not sort of “dragged into it”—but of their own consent choosing to do something, that seems to be a big distinguishing factor. There is tons of case law on that. Consent case law is also in relation to sexual assault, and there are more definitions around what consent means that way.

If I'm a consenting adult, engaging in an activity of my own volition, then I'm consenting, right? I'm not being forced into it, so I'm not being trafficked.

For the first part of the question, I don't think I can give you the full answer in the time you have, but definitely there would need to be some amendments to the Criminal Code. I would suggest that it's not PCEPA. I'd suggest that you have to look at PCEPA as not being effective, as not clear enough, and as causing or creating pre-Bedford circumstances resulting in the loss of life, death. From an indigenous person's perspective, during the national inquiry, another 157 indigenous women went missing or were murdered in unresolved cases, so the violence against indigenous women is not decreasing.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Big Canoe, and thank you, Mr. Fortin.

Mr. Garrison, you have a quick two-and-a-half-minute round to conclude.

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

Thank you very much, Mr. Chair.

I hope, since we have another session scheduled after our March constituency weeks, that we'll endeavour to get SWAN back onto our agenda at the next available meeting. I see you nodding, so thank you for that assurance.

I want to go back to Ms. Big Canoe again and what she said at the beginning. We keep wandering away into talking about what we can do about trafficking, which is another set of hearings we might want to have, but this is actually about PCEPA. One of the things that you very clearly said in your introduction was that PCEPA increases harm. Just as we come to the end of the session, can we go back to that point you made and talk very specifically about the harms you see directly from this law?

[Christa Big Canoe]

Certainly. The harms I see directly from this law are quite clear, not just to a person who's exercising sex work but potentially to the people they're enlisting. There should be exceptions, even within PCEPA, so that people are not charged because they're acting in a supporting capacity. There's not enough clarity on some of those parts of the law.

As an example, if I'm a sex worker and I'm hiring a bodyguard, there is the potential for them to still be charged, investigated and harassed by police. Once they're being investigated and harassed by police, it creates a context where that place is not safe.

The other thing is that the majority of sex work is now done indoors. We have the Internet, and we rely on communication through the Internet. When people are afraid that they're going to be charged or that police will be involved and they will have their own livelihoods harmed, they don't want to consent to go to places that a sex worker has determined is safe for them to deliver that service, so they're pushed—again because the market demands it—into “dark corners”. They're pushed into places where they know that enforcement's not going to happen.

Using the Vancouver example—and we heard a bit from your last panel about that—the Vancouver police, in talking with Downtown Eastside sex workers, made a particular decision not to prosecute them, because they recognized that it pushed them into corners; it pushed them into dark industrial sections, and then that would be like going back to pre-Bedford; that would be like going back to—I'm not just being smart here—the pig farm. That would be like letting indigenous women disappear again.

[Kelly Tallon Franklin]

Oh my gosh.

[Christa Big Canoe]

If they're pushed into dark corners, then they have no recourse for safety, so when I talk about harm, that's the harm I'm talking about.

There's obviously a whole human scale imbalance though. There are many harms happening.

[The Chair, Liberal, Randeep Sarai]

I'm sorry. I'm going to have to wrap it up there.

I want to thank all the witnesses and the committee for doing a great job.

We're slightly over in time, so I'm going to conclude and thank you.

Anyone who asked to make submissions, please send them to the clerk and we'll have them included in the report.

Thank you. The meeting is now adjourned.