Justice Committee on March 1st, 2022

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Mr. Garrison, you have six minutes.

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

Thank you very much, Mr. Chair, and thank you to the witnesses for being here today.

I want to say a special thanks to Pivot Legal Society. It's very important that we centre the voices of those involved in sex work and those who work directly with them, instead of talking about them.

Ms. Porth, in your introduction, you talked about the danger of conflating sex work and trafficking. We've heard from other witnesses here that if you conflate the two, then you miss the real trafficking.

Could you expand a bit on why that's one of your key points?

[Kerry Porth]

When we're constantly conflating sex work and trafficking—I can say that many of the witnesses who have appeared before the committee have definitely been doing that—we miss out on actual violence and exploitation that happens in the sex industry but that does not rise to the level of trafficking. That's part of the negative work conditions that are caused by criminalization.

Criminalization really forces the sex industry into dark shadows and the underground. It really facilitates the violence and exploitation that happen. Calling them one and the same thing really does a disservice both to sex workers and the work they do, and to trafficking victims.

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

Thank you very much.

In that response you mentioned forcing sex work into marginal places, both physically and in the community. We've heard from other witnesses that this is what makes this law more dangerous for sex workers.

Can you talk a bit more about how that works? How does criminalizing the purchase of sex make sex work more dangerous?

[Kerry Porth]

Sure.

If you think about it, the prohibitions on communication and advertising make it very difficult for sex workers to properly communicate the terms of transactions and consent with their clients.

For sex workers working on the street, their clients are wanting them to get into the car with them very quickly, because they don't want to be detected by law enforcement for the crime of purchasing sex. Rather than having time outside of the vehicle to assess the client, to see if there are any weapons in the car or items of restraint, or perhaps, to consult a bad date sheet, the sex worker is asked to get into the car quite quickly. Once she's behind the closed door of a moving vehicle she's lost the power of negotiation. Sex workers who are advertising online are no longer able to place very explicit ads. Clients are unwilling to engage with typical screening practices, which include giving a real name and a real phone number, so they're finding it very difficult to assess the safety of potential clients prior to meeting them in person. That is when misunderstandings and potential violence can happen.

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

We've heard today several people asserting that the PCEPA law is not being enforced in British Columbia.

Would you say that's the experience of sex workers you work with in British Columbia?

[Kerry Porth]

There are a couple of things.

There are the provincial sex work enforcement guidelines that were adopted in 2017, I think, by the B.C. Association of Chiefs of Police. Basically, those are guidelines for police interactions with sex workers that prioritize sex workers' safety, dignity and respect over other considerations.

The Vancouver Police Department doesn't enforce sex work laws between consenting adults, but it does focus on issues such as the sexual exploitation of children and youth, and human trafficking.

What we hear from sex workers themselves is that they continue to be surveilled and harassed by police while they're working on the street. We've heard of police parking marked police vehicles on strolls where sex workers are working, or stopping them for street stops or other reasons while they're trying to work, so they continue to be harassed by police. Whether or not the police are actually enforcing PCEPA, they continue to surveil and harass sex workers.

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

If we were to recommend the repeal of PCEPA, would you say that this would somehow encourage trafficking, or would it actually have no impact on trafficking?

[Kerry Porth]

I think it would have a positive impact on trafficking if police were less concerned with enforcement against consensual sex workers. If they stopped searching for trafficking where it didn't exist and sex workers had access to labour protection, employment rights and occupational health and safety, sex workers could act as allies in the fight against trafficking.

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

I have 30 seconds for a quick question.

You talked about learning from others in New Zealand. We've heard some assertions about what goes on in New Zealand.

What has been your experience in communicating with those involved in New Zealand?

[Kerry Porth]

Peer-reviewed evidence about the New Zealand model of decriminalization shows that it's been incredibly positive for sex workers there.

We hear there's been an increase in trafficking in New Zealand since decriminalization was enacted. One of the problems with New Zealand's model of decriminalization is it didn't decriminalize migrant sex workers, so any migrant sex worker is captured in statistics as a trafficking victim. Of course, it looks like trafficking has increased, when that's not the case.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Porth.

Over to you, Mr. Brock, for five minutes.

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

Thank you, Mr. Chair. I'd like to sincerely thank all the witnesses for their testimony today and for their advocacy in this important area.

Time permitting, I'd like to ask Ms. Allison a couple of questions and Mr. Brandt one question.

Ms. Allison, I come from a legal background as well. I'm a former Crown attorney for the Province of Ontario. I would like to hear your thoughts with respect to the recent Ontario Court of Appeal decision in N.S., and in particular your opinion as to whether or not you agree with the court's analysis and conclusions reached.

[Gwendoline Allison]

I do agree with the court's analysis in N.S. I think it's an important decision. On the key parts of the provisions, one of the issues that wasn't considered in N.S., of course, and is considered in the upcoming Canadian Alliance case is whether or not the purchasing law under section 286 is constitutional. The Ontario Court of Appeal upheld the “material benefit” provision and the “advertising” provisions as well. They upheld the purposes. I know that you've been taken to the purposes of PCEPA, which are key to establishing a section 7 argument, if you like, and to find that the three purposes that the court found were the purposes of PCEPA are constitutional. I think it's a very important decision.

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

Along a similar vein, we know that the court of appeal rendered a unanimous decision, so there is no automatic right to appeal to the Supreme Court. If leave were granted—and this is all hypothetical— by the Supreme Court of Canada, do you foresee any constitutional vulnerabilities with any other aspects of Bill C-36?

[Gwendoline Allison]

It's hard to predict what will happen. Obviously, if leave is granted, the Supreme Court of Canada will be considering only the three provisions, but what the court does in making its decision may have an effect on the other ones. The purposes of PCEPA have been upheld as constitutional by the Ontario Court of Appeal, so even though section 286, the “purchasing” provision, wasn't available, it still has an influence over that. The Supreme Court of Canada's decision in N.S. will have an overflow effect on the other decisions that are coming forward.

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

I'll go over to you, Mr. Brandt. I will say your testimony was absolutely gut-wrenching. I know you didn't identify the country as you described the circumstances and what you saw, but your description brought me back to my days as a member of the Brantford Crown office, being responsible largely for all the Internet child exploitation prosecutions for the last 10 years.

It really brought me back to that dark period of my professional career, which really caused me to reflect on the vulnerabilities of our youth.

I have a quick question with the minute and 30 seconds remaining.

Bill C-36 made some amendments with respect to the penalties associated with trafficking of adults and trafficking of minors. As it stands right now, there is only a one-year differential with respect to the minimum penalties for trafficking minors versus trafficking adults. Given your advocacy, given what we've heard today, do you think that adequately denounces this type of heinous crime against the vulnerable members of our community?

[Paul Brandt]

I would say no.

Human trafficking is an outcome of vulnerability. It's progressive in nature. As I mentioned, 75% of people who end up in the commercial sex industry were first exploited as children. I've seen in testimony through the work with the Alberta human trafficking task force, and in my work over the last 18 years that those initial abuses, victimizations, often lead victims into a dangerous spiral that they continue to deal with for the entirety of their lives. While there can be rehabilitation, there's a lifelong impact from this crime.

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

Thank you, Mr. Brandt.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

We now go for five minutes to Mr. Naqvi.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much.

I want to go back to Ms. Kerry Porth, please. When you were talking to Mr. Garrison, you were describing the experience of New Zealand. Mr. Brandt mentioned Sweden as well. I'm always interested in jurisdictional experiences.

Ms. Porth, can you walk us through what's contained in the law in New Zealand? How does it differ from what we have in Canada that we're studying at this moment?

[Kerry Porth]

In New Zealand, they removed all of the criminal penalties associated with adult sex work. The sex industry is still regulated by their public health. Public health is a federal department in New Zealand, so it has a bit of a different legislative model from what we have in Canada.

Sex workers can work independently, for themselves, or they can choose to work in sex-based businesses, such as brothels. There are occupational health and safety regulations that they abide by, and they have access to employment and labour law.

In one situation, a sex worker who was being sexually harassed at the brothel she worked at, by someone else who worked there, won a large award because she sued for it.

They have far more rights, and they also feel more free to call the police if they need to, if they're in trouble.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

How long has that regime existed in New Zealand?

[Kerry Porth]

They decriminalized it in 2003.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

What is the experience? What has the research demonstrated is the impact of decriminalizing sex work in New Zealand?