Justice Committee on March 1st, 2022

[Kerry Porth]

There have been very positive outcomes for sex workers. They report feeling safer in their work, having more control over their work and their work environments, being more able to insist on condom use with clients, and more positive outcomes like that.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Is it your recommendation that Canada follow a similar model?

[Kerry Porth]

Yes. Canada's model would have to be a bit different because of the way they regulate the sex industry in New Zealand. It is more of a federal model than it is.... Ours would have to be a provincial or a municipal model.

Decriminalization certainly doesn't mean a free-for-all, and it wouldn't mean an increase in trafficking. There would still be regulations on things like where brothels can be located or what kind of signage is appropriate. There would have to be changes to employment insurance, so that sex workers have access to it, changes to labour laws so that sex workers who are working [Technical difficulty—Editor] to deal with that. None of these things are available to them now.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

I want to go back to asking you about the conflation between human trafficking and sex work. We've often heard in this committee that those terms are being used interchangeably, sometimes expressing that one is the same as the other. You started your presentation with that point.

My number one question is, can you explain to us, in your view, what the differences are between the two?

My number two question is, if one were to follow a model like New Zealand's, how does one create checks and balances so that we don't end up promoting human trafficking in any way?

[Kerry Porth]

Basically, the difference between sex work and trafficking is that one implies consent and the other does not. Sex workers go to a great deal of care in negotiating with clients the terms of the transaction to reach consent. They negotiate over things like where they feel safe being taken, what acts they're willing to perform, condom use and other safer sex practices.

Human trafficking victims do not have the option to negotiate at all. That is all done for them, and they are forced into their circumstances. There's quite a difference between sex work and trafficking.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Porth.

Next we'll go to Mr. Fortin for two and a half minutes.

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

Thank you, Mr. Chair.

Ms. Porth, you tell us that if we were to apply the New Zealand model to Canada, we would have to make adjustments. Can you elaborate on that for us?

What changes would you make to the New Zealand model of decriminalization if we were to adapt it here in Canada? What would we need to watch out for?

[Kerry Porth]

I think one of the most important things is the ability of migrant workers to be able to work in the sex industry. At present in Canada, any migrant is prohibited from working in the sex industry. This leaves them in the difficult situation of not being able to contact authorities if something happens to them.

Oftentimes, if they do contact the police, a CBSA investigation is launched, and they are often detained and deported back to their home country. That is one thing we would need to do differently, like in New Zealand.

Occupational health and safety regulations that govern the sex industry in New Zealand are federal in nature. Ours would be provincial, so care would have to be taken that there aren't too many differences across the country in how those regulations are introduced, so that we don't have a situation where sex work occurs very differently in each province.

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

Thank you, Ms. Porth. I'm sorry to interrupt you, but I don't have much time left.

I would like to address Mr. Brandt, if I may.

Mr. Brandt, earlier at the end of your answer to my last question, you said that the way to solve this problem was to make a cultural change. However, we cannot say that it is part of Quebec or Canadian culture to trivialize prostitution or human trafficking.

I'd like you to tell me more about that. What do you think we should change? You will probably tell me that we need to focus on awareness raising, but is there anything else we can do?

In my opinion, the culture doesn't have to be changed. I can't believe that fostering human trafficking is now part of our culture.

Could you elaborate on your thinking on this issue?

[Paul Brandt]

I would say that it is important for us to ensure that everybody who is on this committee and everyone right across Canada understands what the definition of “conflate” is. It's a term that is thrown around quite a bit, and I think it's important for us to make sure that we're on the same page with what “conflate” means.

It is very important, and the PCEPA is clear that conflating human trafficking and the sex industry should not happen. That being said, they are related.

That shift in culture is to understand the relationship between these two issues.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Mr. Fortin.

We go over to you, Mr. Garrison, for two and a half minutes.

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

Thank you very much, Mr. Chair.

I want to go back to Ms. Porth and talk a bit about something she raised indirectly. Since PCEPA has negative impacts on those involved in sex work, those negative impacts would hit hardest at those who are most marginalized, including indigenous women.

Can you talk a bit more about how PCEPA impacts marginalized sex workers?

[Kerry Porth]

Because marginalized individuals are living their lives in a public space, they're constantly under police surveillance. This is a real issue for sex workers, who are trying to make a living working on the street.

They are targeted for police harassment for a number of different issues, such as maybe earning money in other ways, such as street vending and other such activities that are often criminalized by the police. They are sometimes working in circumstances of homelessness and sometimes trading sex for a place to stay or things like that.

The law certainly doesn't help with some of the issues that marginalized people have to face on a daily basis.

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

I have one last question. How does the existing law make it more difficult for sex workers to work together to make sex work safer?

[Kerry Porth]

We know that some sex workers act as third parties to other sex workers, so they may help them with advertising, or they might rent a place together to work together for safety, but these sorts of situations can make them vulnerable to material benefits, advertising laws, and other laws under PCEPA. The Bedford case recognized that it's much safer for sex workers to work indoors and together, but many of the activities that would facilitate that are criminalized under PCEPA.

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

Thank you very much for your time.

[The Chair, Liberal, Randeep Sarai]

Thank you to all the witnesses in the first round. I want to thank you for your commitment to this cause and to making, specifically, the lives of women safer despite your differences of opinion. It's much appreciated.

I'm going to suspend for a few minutes while the clerk tests the next round of witnesses with sound checks.

[The Chair, Liberal, Randeep Sarai]

I call the meeting back to order.

We almost have all the witnesses set. I'll give five minutes to each witness group, and then we'll have a round of questions.

From Aboriginal Legal Services, we have Christa Big Canoe, legal advocacy director. You have five minutes. Thank you.

[Christa Big Canoe, Legal Advocacy Director, Aboriginal Legal Services]

Good afternoon, and thank you for inviting me to present to the committee. My name is Christa Big Canoe, and I'm the legal advocacy director of Aboriginal Legal Services. It is our position that the Protection of Communities and Exploited Persons Act is an end-demand legislation that is not effective, that it is not creating positive change, and that it increases harms and opportunities for violence against sex workers.

Given my limited time, I'm going to point to the Pivot Legal Society's “Evaluating Canada's Sex Work Laws: The Case for Repeal” as a good document that this committee is encouraged to read, review and seriously contemplate.

Stigma perpetrates conditions that have allowed predators to murder, rape and abuse sex workers with impunity. Police fail to investigate and prosecute these crimes when they involve indigenous women, girls and 2SLGBTQQIA+ community members. They are assumed to be sex workers. The National Inquiry into Missing and Murdered Indigenous Women and Girls heard this horrific narrative time and time again. Negative stereotypes about sex workers continue to have adverse impacts on the way indigenous women are portrayed, seen and treated. An example of this was apparent in R. v. Barton, in which Cindy Gladue was reduced to being referred to multiple times in court as a native prostitute, native girl and sex worker.

Disappeared and murdered indigenous women are often assumed to be sex workers or reported in the media as being sex workers. This belief, although erroneous on many occasions, results in less attention being paid when indigenous women go missing.

Laws prohibiting the exchange of sex for compensation between consenting adults are not the way to end violence against indigenous women or to address inequality and systemic poverty. The pervasiveness of these stereotypes and racism is so ingrained that the Supreme Court in Barton in 2019 had to instruct that:

[O]ur criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons—and in particular Indigenous women and sex workers—head on. Turning a blind eye to these biases, prejudices, and stereotypes is not an answer. Accordingly, as an additional safeguard going forward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls.

Sexual exploitation of indigenous women and girls and two-spirited community members occurs well before they decide to engage in sex work. Indigenous children who are apprehended into child protection services at alarming rates in this country often experience sexual exploitation. Addressing issues of poverty and inequity and decolonizing approaches to child welfare institutions is the leading way to reduce sexual exploitation that indigenous children in this country experience.

The acute mass incarceration of indigenous women in Canada's correctional institutes also demonstrates the high criminalization of indigenous women. Indigenous women now account for 42% of the women inmate population in Canada. Laws that further perpetuate stereotypes and distinguish groups such as sex workers are harmful, and overcriminalized populations are the ones that face the most scrutiny from authorities, even when it's not warranted.

The ban on purchasing sex directly impacts sex workers' safety and indigenous sex workers' safety, engaging the rights of liberty, life, and security of the person under section 7 of the charter, as well as section 15, the guarantee of equality under the law.

The court in Barton also reminded us of an important thing:

Our criminal justice system holds out a promise to all Canadians: everyone is equally entitled to the law's full protection and to be treated with dignity, humanity, and respect. Ms. Gladue was no exception. She was a mother, a daughter, a friend, and a member of her community. Her life mattered. She was valued. She was important. She was loved. Her status as an Indigenous woman who performed sex work did not change any of that in the slightest. But as these reasons show, the criminal justice system did not deliver on its promise to afford her the law's full protection, and as a result, it let her down—indeed, it let us all down.

We call for the repeal of PCEPA . It's unconstitutional and actively prevents people who sell or trade sexual services from enjoying their fundamental charter rights.

Like Pivot, Aboriginal Legal Services was an intervenor in the Bedford case before the Supreme Court of Canada. We intervened mainly because of the life and liberty risks that the Criminal Code provisions were creating for indigenous sex workers.

In July 2014 we also made submissions to this committee on Bill C-36. At the time, we objected to the passing of Bill C-36 because of the acute indigenous overrepresentation in the criminal justice and penal systems. This situation has only gotten worse in respect of those two issues.

The overall impact of the bill—

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Big Canoe. I'm going to have to interrupt you. Hopefully you'll be able to answer in the questions coming forward.

For the witnesses and those who are not familiar, I have cue cards, so just watch for them. I give you a 30-second warning and then a time-out warning at the end.

Our next witness is Ms. Franklin, of Courage for Freedom, for five minutes.

[Kelly Tallon Franklin, Chief Executive Director, Courage for Freedom]

Thank you, Chair.

This is a very difficult day.

I am Kelly Tallon Franklin with Courage for Freedom. I'm CED and chair of committees for Canadian and international ECOSOC organizations for business and professional women.

As a survivor of the sex trade, I share current experiences with over 427 minor-aged women and girls, personally and professionally supported. I am sharing their perspectives with additional information from traffickers, johns, different areas of the sex industry, law enforcement, frontline support workers, friends and families. It includes all oriented communities, including the Black, ethnic, language and religious faith communities, as well as all socio-demographics.

I do not speak to repeal Bill C-36, PCEPA, as it's still in the best interests of Canada as a whole. I ask instead that the committee review sections and amendments of it, as well as witness testimony, briefs and documents against CEDAW concerning the difficulty—and our responsibility as a UN-sanctioned nation and as a founding member—of individual versus collective and societal rights and responsibility.

I would also ask that you note the UN's neutrality in view of four choices: the Nordic model, decriminalization, partial decriminalization and legalization.

My [Technical difficulty—Editor] would also say that under decriminalization they have, as indigenous women, been placed at further risk of harm, violence and even murder without increased safety or liberties.

In Germany, the studies of 80% of their population report that the law does not work. In 2017, all parties there agreed the laws were a failure. In Costa Rica, sex trade women have suffered. Legalization lowered their standard of living to less than $2 an hour, opened doors to international criminals, placed them as the now number one central Latin American country for sex tourism with increased child exploitation, and lowered their tier status at the UN.

Canada has a tarnished record, as human trafficking is the second-highest national grossing crime. However, in our quest for a ranking globally, may we not just seek to legalize all aspects to influence our status, but base everything we do on safety and security, addressing root causes and not governmental controls?

In the highest per capita community in Canada, officers I work with have asked me to share the information that they believe repealing PCEPA will result in more bridges to international organized crime and heightened victimization. Project Maple Leaf, which we founded, saw that a large number in the sex trade and in prostitution have not been charged under these current laws, but the procurers and benefactors from the sale of others as managers in that 5% agency privileged advanced have exemplified personal gain under the guise of helpful support of the oppressed and marginalized.

Hard and grey data used under the law enabled the discovery of victims and survivors of the sex trade who were protected, regardless of charges laid, plea deals or prosecution. I agree that inconsistent policing poses an issue, but we also understand that when we bring these issues to the surface, we are going to see a retribution of actions in crime.

A sex industry female friend said openly, “I am not afraid to say that without PCEPA, I and others in the sex industry would have been arrested and without options. Those who aim to repeal these laws do not speak for me.” Repeal will make it even easier for them than it currently is to buy and sell children, and marginalize and oppress women and youth.

An 18-year-old who is fighting out-of-sex-trade trauma has been told in a women's and girls' shelter that she's not “woke” and is being gaslit by posters that her body is her choice and sex work is real work. Last week, she was told that she should do some stripping or rub and tugs as harm reduction to pay for a baby stroller.

Statistics show the likelihood of rape, both as an escort or in the street trade. Murder rates are higher, whether it's legalized or not, and 95% are still under-represented by agency. It means there's no equity in privilege, race or economy that could be presented to you today, and that third party profiteers draw on the criminal element.

How can we possibly weigh the effectiveness, when some of our measurements' activities were not even enabled given the COVID situation?

Today, I'm not a conflationist and I don't want to remain polarized, but I demand consideration of the sex trade, sex industry, human trafficking, sex trafficking, labour trafficking, violence against women and girls, domestic violence, murdered and missing indigenous women, sexual exploitation and, as a witness already stated, the consideration of youth sex workers. Yes, consider them, but please consider them as child rape victims. Request more report consideration from the Canadian Centre for Child Protection and the National Center for Missing and Exploited Children as representatives of the visual, written and audio sex trade to actually and adequately represent everything, including the previous misrepresented data about jails, probation and parole.

Honourable Chair, what will be the report implications of our time in history? What will be the choices and the rights?

If we do not have a means to discover—

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Franklin.

I'm going to have to end it right there, but hopefully you'll be able to extract some of it during the questions.

[Kelly Tallon Franklin]

Thank you.

[The Chair, Liberal, Randeep Sarai]

I'm going to ask Madam Clerk if SWAN Vancouver Society is on. No?

I believe the third witness is having difficulty, so we'll bring in a round of questions, beginning with Mr. Brock, for six minutes.

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

Thank you, Mr. Chair.

Thank you, ladies, for your testimony today. Your advocacy in this important area is going to help us formulate our studies.

My questions go first to Ms. Big Canoe.

I know, Ms. Big Canoe, that you did not have an opportunity, because of the time constraints, to finish your narrative. Were you planning on opining or providing any input with respect to the intersection of indigenous women and girls and human trafficking? Is that part of your narrative?