Justice Committee on March 1st, 2022

[Christa Big Canoe]

Yes, it would be part of my narrative in relation to two things, the recommendations that I would make and a reference in terms of the recommendations that we're supporting.

Much like your former set of panellists, I talk about the conflation between human trafficking and sex work, and the need for clear definitions and understanding. There are also a couple of things we need to be aware of when we look at something like the national inquiry's report and we see the harm and levels done. In my submission and speaking notes, if I do not get the opportunity to get to them, there are six recommendations that are derived from the Pivot report, and three from the national inquiry.

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

I'm going to get into some specifics now, Ms. Big Canoe.

My former career was as Crown attorney for the jurisdiction of Brantford—Brant, which, as I'm sure you're familiar with, includes the largest indigenous reserve in Canada, the Six Nations of the Grand River, as well as the Mississaugas of the Credit.

I should have known this, but it was unknown to me during the past election. It came to my attention by speaking to some of the elders and law enforcement on the Six Nations that the Six Nations leads the country in terms of the percentage of indigenous women and girls who are victims of human trafficking. I don't know if you were aware of that particular statistic. I'd like to ask you specifically if you could perhaps provide some explanation in terms of what is going on in that part of my riding.

[Christa Big Canoe]

Certainly.

There is an awareness of the amount of sexual exploitation geographically, but if we're being fair and honest, we actually don't know those numbers with 100% certainty. The pervasive issues around the enforcement of Canada's current Criminal Code, even prior to PCEPA's trafficking provisions, were that it was largely not being enforced. A lot of trafficking, as the national inquiry heard, is, quite frankly, underground. The number of indigenous women who are trafficked interjurisdictionally within a province, through other provinces and across international borders should be shocking. I have heard that the number is large.

The Six Nations is also one of the largest reserves in the country. If you're looking only at a first nation reserve, it has over 17,000 members, and 10,000 of them reside in a fairly urban context, so it's not actually surprising, when you look at it from a per capita basis, that this might be a truth. In terms of what's happening in your neck of the woods, I can't directly respond to what the issues are, but it doesn't surprise me that it would be a community that puts forward what's happening. Trafficking does happen.

I want to be clear. ALS is not pro-trafficking. We are not saying that there shouldn't be laws in place and that there shouldn't be enforcement of laws that address trafficking. What we are suggesting is that the conflation between trafficking and sex work, and not having distinguishable or clear definitions of some of the words within the act itself, is problematic and causes life and liberty issues for those who are engaging in sex work.

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

Thank you for that.

Part of your narrative was to talk about the overincarceration rates of indigenous offenders, particularly in this area. When you testified before the committee when Bill C-36 was being debated, you objected to the bill because of the acute aboriginal overrepresentation in the criminal justice and penal systems, and the overall impact this bill would have on a number of aboriginal sex workers, their families and communities.

What has been the impact, in your opinion, of Bill C-36 on the overrepresentation of indigenous people in the criminal justice system and on indigenous sex workers, their families and communities?

[Christa Big Canoe]

If we're looking at it as a statistical game, then you're going to see that there's been an increase since I made my submissions in 2014, particularly of indigenous women and female youth within our penal and criminal justice systems.

The number of those who are tied to sex-related offences has decreased post Bedford, because there aren't as many charges, but then there are connections within the community. Some of the provisions in PCEPA that rely on the livelihood or the potential of benefiting from livelihood are adversely impacting larger communities and broad communities.

We have to contextualize this criminalization and couch this really quickly in the fact that indigenous people are overpoliced or underpoliced, depending on the circumstance, simply for being indigenous. They have more scrutiny. They're seen more often, and the police are following up with or dealing with those communities more regularly.

I don't think you're going to extract the statistic you're hoping for directly, but if we're looking at just a numbers game, we're only continuing to overincarcerate and mass-incarcerate indigenous people, including sex workers and people who have been sexually exploited through no fault of their own.

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

Thank you, Ms. Big Canoe.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

It's now over to you, Ms. Diab.

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

Thank you very much, Mr. Chair.

Welcome to our witnesses here this afternoon.

Madam Christa Big Canoe, I have a couple of follow-ups, if you don't mind. I would like to get some clarification on a couple of things you said, but also a bit more on what you were referring to.

What would be the benefits of decriminalizing versus legalizing the sex trade, in your opinion, and how would that impact the indigenous community you represent?

Also, you had six recommendations, and three that were in the report. I'd like to hear those.

Lastly, what definitions in the act would you recommend be amended, and how would you define them?

[Christa Big Canoe]

Certainly.

Let me start with the recommendations first, and go to your first question, and I can undertake to pinpoint those in a follow-up note to the clerk if I don't get to address them today.

I would point to six points in Pivot's evaluation of Canada's sex work laws and what we need to do.

The first one is repealing, which seems pretty straightforward. It would also be to use existing laws to prosecute perpetrators of violence. No one is saying that violence is acceptable, or that sexual exploitation is acceptable, but within the Criminal Code we already have provisions.

We would add that law reforms should consider using appropriate language and not characterizing acts of sexual violence of minors as interfering.

For example, the national inquiry also made recommendations about the use of language. When we're talking about children, we shouldn't be talking about invitations for sexual touching. Kids cannot consent to sex. If there is work to be done, it is in relation to existing legislation in crimes and not an additional suite.

I will again refer to my notes because I want to have a moment to focus on some of the findings from the National Inquiry into Missing and Murdered Indigenous Women and Girls. I did not say this in my introduction, but I was co-lead counsel, so I was responsible for putting the evidentiary record before the commissioners and have quite a fluency with this.

The calls for justice that are really important include 4.3, which calls upon all governments to support programs and services for indigenous women, girls and 2SLGBT+ people in the sex industry to promote their safety and security, and they must be designed and delivered in partnership with people who have lived experience in the sex industry. They called for stable, long-term funding of these programs and services.

Whenever you hear any of your witnesses talk about exiting opportunities, the solution always comes from the community, which is much stronger than forcing people into exiting strategies through police or authorities.

Also, there's call for justice 5.3, asking the federal government to review and reform law about sexualized violence and intimate partner violence. Again, it's about looking at the existing laws and strengthening them.

Finally, there's 12.14, which called upon all child welfare agencies.... You're wondering what's the connection here, but, quite frankly, indigenous people in particular are exploited sexually more often in youth than the general population, so they call for more rigorous requirements for safety, harm prevention and needs-based services, as well as within foster situations to prevent the recruitment of children in care into the sex industry. The national inquiry also insisted that governments provide appropriate care services over the long term for children who have been exploited or trafficked while in care.

Indigenous people have this history in Canada, this colonial legacy. We took children and put them into schools where they were highly sexually exploited. It has been a long-standing history, and sometimes when we say things like we can't believe this happens in our country, I say I can't believe we're surprised it does. That has been the legacy towards indigenous people in this country.

Just to be clear, the two views don't have to be mutually exclusive. There are ways to tighten the law to protect those who are treated most vulnerably in the system, while still upholding and protecting the rights of those that are engaged in sex work of their own autonomy in a safe way, and we see that in other jurisdictions.

I think I'm probably going to have to defer. You might run out of time. I can pinpoint. There is some terminology, which Pivot's document explains quite well. For a couple of the terms that aren't explained well, we more recently have had case law. There was Anwar, which was from the Ontario Court of Appeal. Now we have a new Ontario Court of Appeal ruling that has helped explain things, but there are some loose terms where there's not a tight enough definition to work well even just neutrally, whether you're on the side of let's get rid of the law, or that of let's enhance the law.

I would undertake to follow up with a note to the clerk further to my submissions, pointing out a couple of these terms.

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

Thank you, Mr. Chair.

We talk a lot about conflation in this committee, particularly in relation to this act.

Can you talk to me a little about how you can help us, or how you can help in trying to figure out how to distinguish the two? Even though there are linkages, they are obviously separate.

Tell me your view on that.

[Christa Big Canoe]

Certainly. It's a position I took when I talked to the committee in 2014. I said that we need to not conflate, using the word conflate to understand...there may be connections, there may be pathways, between sex work and human trafficking, but you can't just assume that if someone is autonomously working in the sex industry, they have been trafficked there. There are different truths for different people with the lived experience, so I am not going to try to assume that anyone who has had one experience begets another. There is that difference.

The big thing, too, to keep in mind is that it's very common for people to look into those stereotypes that I was talking about in my introduction and make assumptions. This is the stigma that is attached to sex workers. They are seen in society as either being less than or not worthy victims, because they've engaged in something that we might think is morally wrong. However, when we look at that stigma, we extend the stigma of sex work to something like human trafficking, which we see in society as the worst thing, to take one human being and do that to another. It's important to understand the definitions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Big Canoe and Ms. Diab.

We will go to Monsieur Fortin for six minutes.

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

Thank you, Mr. Chair.

I thank Ms. Big Canoe and Ms. Tallon Franklin for being here today.

Your testimony is important. This matter is very concerning. It is valuable to have the perspective of people on the inside and people on the ground.

I will direct my next question to Ms. Franklin.

Ms. Franklin, as I understand it, you are a speaker and you deal a lot with the issue of human trafficking awareness.

One of the witnesses in the previous panel talked about criminal sanctions. Indeed, the Criminal Code has penalties for people who are accused of human trafficking. I know there are other penalties in several other laws, including the one we're looking at now. I find the problem so serious that I wonder if there is anything else we can do but apply criminal sanctions.

What else can we do?

It appears unacceptable to me that any individual, male or female, would think of buying a child. It's unthinkable. The witness was telling us that the culture had to change. I find it hard to believe that this type of behaviour is part of our culture. Certain things must surely be changed, but I cannot believe that it is an accepted part of our culture, here in Quebec and in Canada, to buy human beings to satisfy one's own pleasure. Maybe I'm naive, but I can't understand that.

I'd like to hear your thoughts on raising awareness about human trafficking. Someone was talking about changing the culture. I have a bit of difficulty with that. I would like you to tell us a more about that.

What can we do to stop the behaviour in question, apart from threatening jail time?

[Kelly Tallon Franklin]

There are so many answers to that question that I don't think time is going to allow us. I am finalizing a brief that I will be submitting post-presentation to committee for your review.

The first thing I want to answer is by saying that with PCEPA we have had a means to discover acts perpetrated against oppressed persons and against minors in the short time it's been on the books. One thing we need to consider is that of those 427 victim survivors who have been of minor age—whom I've had the privilege to support and journey with, along with their families and their communities—regardless of whether charges were laid there's grey data that we don't have on this issue.

The majority of them didn't have agency at that point and didn't understand that it wasn't a decision they made to involve themselves in the sex trade. For most of them, it took years of care with trauma and supports, and it's ongoing.

I'm going to be 60 this year. I remember the early nineties, when Kelly Mombourquette was murdered as a 14-year-old. The papers stated that she was a problematic child in the system and that she was a child prostitute. We've come a long way from that. We don't need that kind of media reporting.

However, most people who have experienced human trafficking in the sex trade do not know that there was a differentiation because of industry. It's teaching those in all industries, working with those who are in the sex trade to understand what's happening, getting that information out there and supporting their rights for safety regardless of what we think about other things. We're all human beings. We can talk about this like they're the 427 case files that I've worked on since 2013, or we can talk about it like they're persons.

I have a 12-year-old girl who did not know she was escorting. She did not understand what was happening. By the time she was aged 15 and had allowed a sex buyer to insert a sponge for her to perform, she was suffering from sepsis and infections. She had no clue about what had happened to her. Yes, she was sex trafficked, but it happened within the sex industry. We have to understand those intersectional points and how it puts more oppression forward.

I had the opportunity to work with the Anishinabe community as a welcomed guest in Manitoulin Island, the largest unceded territory in Canada, to see what was happening and what they were saying. I was made aware that there is no word for prostitution in the indigenous culture. That's colonized thinking that's infiltrated their communities and taken a foothold.

Regardless of what we believe about all of this, I'm not talking about morality. I'm talking about having an understanding, about a sex buyer knowing that somebody is 12 years old. How are we going to differentiate? How are we going to identify if we don't have acts against perpetrators to do the investigations appropriately?

How are we going to put this into our universities as a course...on the sex industry? Is it going to be in our high schools as a course that you can take? Is it going to be part of the middle school guidance counsellors' conversations with our children as they're preparing for high school? How about that kindergarten person in a little sharing circle, talking about their vision of growing up and being in a profession? Is it going to include saying that they want to be in the sex industry? We need to understand that we have a bigger responsibility than just individual rights in this conversation.

I implore you to do your homework. Prevention does work. I trained over 5,000 professionals last year. I didn't endorse arrests or witnesses. I talked about the trauma that is in both sectors of this conversation, where we have to be presenting solutions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Franklin, and thank you, Mr. Fortin.

Mr. Garrison, we go to you for six minutes.

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

Thank you very much, Mr. Chair.

I'd like to turn the topic back to what we're actually studying here, which is the PCEPA and not the trafficking laws or laws against child sex, which is obviously abhorrent to all members of the committee.

I want to go back to Ms. Big Canoe. I know it's kind of a frustrating format. Ms. Big Canoe has always had other things she wanted to say. I think she had three more recommendations she wanted to talk about, so I'd like to give her a chance to do that.

[Christa Big Canoe]

Thank you for that opportunity.

I understand the need to have the committee. For people who have worked in this area for a number of years, on various fronts, it's not a lot of time.

I shared with the committee the three calls to justice of the national inquiry and a couple of them from the Pivot report. One of the other ones that is important is recognizing the complex realities of indigenous people who sell and trade sex. Specifically, the federal government should increase broad-based support, including through funding to indigenous communities for self-administered education and vocational training, housing programs, income assistance, and health and addiction services based on indigenous traditions.

In Canada we have 613 first nations. In Ontario alone we have 13 indigenous languages, so one indigenous group cannot say what other indigenous groups' languages include or don't include. It's important to recognize the complex reality of indigenous people in that context of historical legacy and the way that children have been sexually exploited even by government-sponsored programs, whether it was intentional or not.

We also need to invest in supports to low-income sex workers.

You're probably wondering, “Ms. Big Canoe, I just asked you this question and you're not giving me an answer as it relates to PCEPA specifically.”

Part of the solution is not carving out the specific law that is not going to address the issues that we know exist. Investing in supports for low-income sex workers, whether they want to do the sex or not, would also be an important thing. Poverty and discrimination are what drives a lot of choices within industries and outside of them. Using criminal laws to deny people their income sources is not the way to assure genuine autonomy. Instead, people experiencing poverty, discrimination and low income, like low-income sex workers, whether they wish to do other work or not, need access to more substantial income assistance benefits; safe, affordable housing; and culturally appropriate education, opportunities and health services.

In a nutshell, we often try in law to craft something that we believe is addressing a “problem”, but sometimes we're creating additional problems or barriers for people, like life and liberty ones or accessing the resources they need to choose to exit or to choose to continue within a safe way of exercising their lives.

Thank you for the opportunity to allow those recommendations.

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

Thank you for setting it in the larger context.

As someone who has been a long-term advocate of a guaranteed, basic, livable income as a way of addressing some of these problems, I'm glad you've raised that important point, even though you didn't put that name on it.

My last chance here at questions to you would be to give you another opportunity to talk about something you said at the beginning, which I thought was very important. That is respecting the diversity of what exists among first nations and among people involved in the sex trade and trying to understand that there's no one-size-fits-all in these programs. I really appreciate your bringing that up. Maybe you could say some more about how important you think that is.

[Christa Big Canoe]

Aboriginal Legal Services, as an example, have always accepted clients and met them where they're at. In terms of trying to find resolutions, a good life solution for any individual is to meet them where they're at. Embracing diversity and understanding people have lived choices as adults that within law.... I think it is worth repeating that the act of selling sex itself has never been unlawful in the country of Canada.

Putting in place parameters that meet the safety requirements that don't result in things like overpolicing or criminalization of indigenous people, which is already at beyond an acute level.... I don't even refer to it as overincarceration any more; I refer to it as mass-incarceration, because we continue to apprehend indigenous children into child welfare institutes and we continue to penalize and put indigenous people into custody.

When there are some levels of autonomy and when people have power to make decisions and the ability to do things in a safe way, then we see less loss of life. We see that. We've seen that in places like New Zealand, within their model, where sex workers have a better relationship with police officers. Sex workers can utilize the law within that country to put forward their rights. If we're truly at a place that's concerned with human rights—and the national inquiry set up their entire calls for justice on this parameter—then those human rights have to include those basic things like dignity, life and liberty.

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

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

We'll now go to Mr. Cooper, for five minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Mr. Chair.

I'm going to direct my questions to Ms. Franklin. I certainly recognize the work you do on the front lines with victims. At the outset of your testimony, you stated that the legislation should not be repealed. You alluded rather to possible amendments, but I didn't hear you elaborate on that.

Are there any specific amendments or improvements you would see to the legislation?

[Kelly Tallon Franklin]

I believe that in the course of these hearings, you've heard multiple amendment recommendations. The first would be to have a better capacity to put into action in every province, in every community, exactly what the original intention was of this law. We haven't seen that, and as a result it's really hard to have a measuring stick against it.

What we have seen on the books is that those who are minors, because of the laws of PCEPA.... I'm going to speak to the comment made by the committee member through you, Chair, that yes, child human trafficking, better known as child rape, does intersect with this issue.

This law and its consideration—and there are other laws on the books around children—has had marked success in identifying that type of criminal activity. How can we ensure that whatever we're amending and whatever recommendations we are making are consistent and are being actually worked on?

When you hear testimony that there are certain segments or communities that just refuse to lay any charges or do anything, we have to wonder, what's the divide? I don't think policing is solely the solution. I agree with the other witnesses that this is going to take an all-hands-on-deck and multi-level approach because of a lot of the historical legacy that we've seen. Some of the amendments will need to consider what we're going to do in the areas of protection in the newest trends that we're seeing.

I'm going to reiterate this. Out of the 427 victim survivors I've worked with, who started as minors, they didn't have an agency or understanding what was happening to them. They couldn't understand or identify what the sex trade was, what escorting was. Providing the training and prevention piece that needs to be ramped up in all areas has given us an opportunity.

We get calls from police officers, community workers, hospitals and Homeland Security. We've trailed girls who, by choice, have stated that they were in the sex trade, only to find them carried from Toronto to Vancouver, Washington and Seattle, back to New York, and then sold for $20,000 in Puerto Rico, and now needing our assistance to exit, and redefine what was safe for them.

I'm not saying we need to conflate it with sex trafficking, but we have to have the conversation, because of those who have disclosed, the majority disclosed as adults about their childhood experiences, as we've heard over and over again. Their narrative is important and can't be dismissed. It is valuable to this conversation, as are all—

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Ms. Franklin. I have only a limited amount of time, but that was a very fulsome answer.

I want to shift gears a bit. During your testimony, you cited other jurisdictions with liberalized laws around sex work, like Costa Rica and Germany. We've heard repeatedly from other witnesses; in fact, Ms. Big Canoe cited New Zealand, as have others, as the gold standard. I was wondering if you might be able to share your thoughts on the New Zealand law.

[Kelly Tallon Franklin]

I'm actually part of an organization that has boots on the ground in New Zealand, and I have a good friend who's a councillor in one of the communities in New Zealand. The authorities are still not completely satisfied that what they have done is in the best interests, especially not for the immigrant population, although that's important. There was a comment earlier today, during questioning, about how information is conflated in that community, because they don't think—