Justice Committee on March 4th, 2022

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

Thank you very much, Mr. Chair.

I do apologize if I have to turn off the video because of our bandwidth problems here, but we'll try it.

First of all, I want to thank Peers, an organization based in my riding, for all the work they do and particularly for bringing directly the voices of sex workers to the committee today. I think it was very important testimony and I appreciate that they've done that.

I think they left out one of their functions and I can testify to that. That's education of elected officials about sex work in our community. I first began to work with Peers more than a decade ago when I was a city councillor. They spend a lot of their time trying to make sure people understand the reality of sex work.

I thank all the witnesses today for bringing that important perspective to the table. I also thank Mr. Moore for asking so many questions of Peers.

Let me turn back again to Ms. Clamen and the question she was dealing with from Monsieur Fortin about the number of witnesses who come forward saying it's possible somehow to fix PCEPA.

You've just been very clear on that. I think we've also heard from sex workers that some pieces of PCEPA are particularly harmful and particularly dangerous. I wonder whether you could comment on that.

[Jenn Clamen]

It's a great question.

From the perspective of all of our member groups, all of PCEPA is actually very dangerous. The regime itself actually hinges on the criminalization of clients. I think it's important for people to see that to understand how the law actually functions. Regardless of what its intention was when it was written, it actually hinges on the criminalization of clients. If the clients are considered violent and rapists at every single moment that a sex worker is seeing them, it's an extremely problematic notion. I don't think anybody would agree with that, including law enforcement.

The whole framework that clients are abusive at every given moment and that sex workers are exploited all the time is really problematic. The entire PCEPA is based on that foundation, so there's nothing in it that you could actually save.

That's not even speaking to the fact that it actually reproduces some of the laws that were struck down in the last constitutional challenge before the Supreme Court. Those were the communication of one's own sexual services in public places and the reproduction of pieces of it in some of the third party laws.

All of the regime itself is dangerous and actually just increases the risk of exploitation and violence in sex workers' lives.

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

We've had a number of witnesses talk about the recent decision of the Ontario Court of Appeal. My understanding is that other cases are making their way through the courts. In particular, there is a case that the Alliance has worked carefully on.

Can you tell us a bit about that?

[Jenn Clamen]

Absolutely. We actually launched a constitutional challenge to all the sex work laws. There are seven applicants. The main applicant is our Alliance, our 25 sex worker rights groups. Then there are five individual sex workers and one third party who is still in an agency. We launched that constitutional challenge just last March. We hope to be in court at the first level in June or July.

We're challenging the entire regime. We're bringing forward a massive whack of evidence to demonstrate those harms. One problem with the most recent decision, the N.S. decision, is that it was really based on two hypotheticals regarding sex work co-operatives without considering all of the third party relationships that are prohibited under PCEPA.

This notion of the co-op that they ruled on is actually a theoretical idea. It assumes that everybody is independent, that everyone is kicking in the same amount of money, that everybody has the same share, that nobody exercises any influence over everybody and that nobody is concerned with profit. That simply doesn't exist.

While that decision was made in the Ontario Court of Appeal, our case is really explaining the different roles that third parties play in the lives of sex workers. They are various roles that aren't actually allowed with the existing Criminal Code provisions. We're not just talking about drivers and receptionists. We're talking about sex workers who aren't entrepreneurs who really depend on third parties. Most sex workers aren't entrepreneurs and cannot be entrepreneurs.

This idea that most sex workers are able to do that or that the sex workers who want decriminalization are a small subset is a complete myth and used by prohibitionists as a tactic.

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

Thank you.

I want to ask a question. I'm going back to something that I know you've already ruled out. The whole bill.... As you know, I've been a supporter of decriminalization for a very long time, so I agree with you on that.

One of the things you talked about is that the prohibitions on certain things that sex workers do don't require any element of exploitation. Can you say a bit more about that? That's a very important point.

[Jenn Clamen]

Right.

When you read the provisions, it doesn't actually say that exploitation needs to occur in order for a third party, for example, to be charged. Just the very relationship or earning a material benefit off the work that a sex worker does is considered a reason for arrest, and the exceptions to the exceptions don't actually leave room to adjust for the actual relationships that sex workers have with third parties. It doesn't actually address violence. The only thing that addresses violence within the PCEPA is the assumption that sex work is violent, so all of the laws stem from that.

There are laws that actually address violence, period, that we would appeal to insofar as the Criminal Code is a useful tool sometimes. We would appeal to those laws to address violence in sex workers' lives, but we would definitely not say that the sex work laws actually address violence in sex workers' lives. They're just used as an extra tool that law enforcement has to be in the lives of sex workers, hoping, as they scrounge around, to find something.

I don't know if that answers your question.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Clamen, and thank you, Mr. Garrison.

We'll go to our next round of questions.

Mr. Morrison, you have five minutes.

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

Thank you, Chair.

I thank the panel today. There is a lot of experience here, and I am glad to see that.

For my question, I'm going to Maggie's, with their 35 years of experience.

Throughout the last few meetings we've had, we've heard about difference in policing, how some people are really quite happy and have a good relationship with local police, such as the Victoria Police Department as we heard from Peers, but in some places, just do not.

With your experience in Toronto, 35 years, could you elaborate on what kind of relationship, and maybe even further than that, help some of the police departments so that they might have a relationship like Vic PD's?

[Jenny Duffy]

Thank you so much for the question.

There is always going to be a turbulent relationship between police and sex workers as long as police are instructed to criminalize sex workers. I want to emphasize that's really how it goes.

The sex workers on the ground experience violence. They experience harassment, especially racialized workers, especially trans and queer workers.

Something we saw during COVID-19 was that police were using the emergency orders to further target sex workers. That's something we always see. We always see how law enforcement uses other laws to surveil sex workers.

For example, during the height of the pandemic, a service user reached out to us because someone who they thought was a client booked a session with them. That client showed up and it was actually a policeman who ticketed that sex worker for transgressing social distancing. We actually had to amp up our legal support services to address this increase in policing. We also saw how the emergency orders just facilitated more contact.

I'm not here today to be a proponent of police relationships, because under criminalization, it doesn't work. Under incarceration, under colonialism, that just doesn't work.

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

I understand that, and I understand it is difficult, especially in some areas, like during COVID if they're targeting the people who you're trying to help. It's hard to imagine why they would do that. I know there are some probably good-news stories, not only from Vic PD but we also had the Ottawa police in as well. I think they have a really good relationship. It takes a lot of time and a lot of effort for the police to actually listen to what you have to say.

Is there anything you could recommend to this committee that would further protect individuals in the sex trade, Criminal Code-wise, that you would say is what we actually could do, would do and would like to see? Is there something that could help guide us in the future?

[Jenny Duffy]

Thank you for the follow-up question.

I think it really needs to be understood that there's no possibility of improving this bill, that criminalization plus supports doesn't work and that this bill doesn't facilitate access to supports. It's not a matter of adding anything onto this bill. It is a matter of repealing this bill and totally dismissing an approach that criminalizes sex workers, recognizing that it's just creating dangerous conditions for us.

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

Maybe I'll just change that question. I didn't mean amendments. I meant new Criminal Code provisions that would protect the people who you are working with.

[Jenny Duffy]

We already have legislation that exists around confinement, kidnapping and robbery. Those things already exist. What we really need is for this bill to be repealed. We need migrant workers to be able to work in sex work. We need improvement with immigration laws.

I'm sorry. Go ahead.

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

Thank you very much. I appreciate the answers.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Morrison. Next I have Mr. Naqvi for five minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much.

Ms. Duffy, you spoke about your organization's work with marginalized women, those who are indigenous, Black and women of colour. Can you speak to the impact you have seen of this legislation on those women who are involved in sex work?

[Jenny Duffy]

I will say that indigenous women, Black and racialized women, transgender and migrant women and people living through poverty are overrepresented in street-based work.

At Maggie's we serve a lot of street-based workers. This means that sex workers who face some of the highest levels of marginalization with industry are unable to access the security that working in more private and secure settings would offer them. These workers are pushed into remote situations away from supports.

For indigenous workers, their self-determination and their self-identification are completely undermined by this act, because their experiences are pushed into the singular narrative of human trafficking victims. This completely dismisses the social conditions and the history of colonialism that make sex work the best choice for many of these individuals and that there are many reasons why these individuals come to sex work.

For racialized and indigenous sex workers, this bill increases contact with police, it increases surveillance and it increases targeting, while also discouraging marginalized communities from being able to approach police and other social services for support.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

What changes would you suggest we should be considering as we're reviewing this particular piece of legislation as it relates to marginalized women?

[Jenny Duffy]

As I said before, this act needs to be repealed. At previous meetings, I know there were witnesses who said.... There's this misconception that it's just the privileged few who want to see sex work decriminalized. That's so false, because criminalization impacts marginalized workers so severely. They're the ones who are experiencing the brunt of discrimination and violence as a result of this law, so the best first step would be repealing it.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

If the first step is repealing it, what's the second step, in your view?

[Jenny Duffy]

The second step would be to increase the supports for sex workers, especially marginalized workers, because there will still be a stigma that will exist even after decriminalization. There's a history of this. We need supports, education for health care workers, legal support and social service sectors to support sex workers. We need funding for organizations like Peers Victoria, Maggie's and all the alliance groups who are working on the ground to provide really vital resources to generations who have experienced abuse and discrimination.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

I'm asking you this question, Ms. Duffy, but Ms. Clamen may also want to answer.

In looking at other jurisdictions, is there a jurisdiction that you would point to as doing a better job in terms of protecting sex workers, their health and social needs than Canada? If so, what are they doing that's better than what is being done in Canada?

Why don't we start with you, Ms. Duffy.

[Jenny Duffy]

I would point to jurisdictions like New Zealand, where they are decriminalized. I would not point to any jurisdictions that have a Nordic model like ours and tout this idea of partial decriminalization. It's either criminalization or it's decriminalization.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Ms. Clamen, do you have thoughts on the same question?

[Jenn Clamen]

I think Jenny did a great job of responding.

The only thing I would add is that when sex work is not treated as a crime, when sex workers are not afraid of the impacts of criminalization on their lives, including but beyond arrest, then sex workers can start to think about having that safety and not having relationships criminalized, not having loss of family, loss of life or loss of income. The whole framework of sex work as a crime, wherever in the world that is implemented, really limits the capacity for sex workers' human rights to be protected.

The only place we actually see that right now is in New Zealand and in parts of Australia.