Justice Committee on March 22nd, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number seven of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the motion adopted on Tuesday, February 8, the committee is meeting on the review of the Protection of Communities and Exploited Persons Act.

Today's meeting is taking place in a hybrid format, pursuant to the House order of November 25, 2021. Members are attending in person in the room and remotely using the Zoom application. The proceedings will be made available via the House of Commons website.

I'd now like to welcome our witnesses. First of all, I would like to apologize that we are a little late, because we had votes today, so we might have to be a little shorter.

For the first panel, I'd like to introduce Superintendent Lisa Byrne of the Canadian Association of Chiefs of Police, who will speak for five minutes. The Canadian Bar Association will be next, with Jeneane Grundberg, chair of the municipal law section, and Kevin Westell, secretary, criminal justice section. I believe they'll be splitting their time.

We'll begin with the Canadian Association of Chiefs of Police, for five minutes.

Go ahead, please.

[Superintendent Lisa Byrne, Member, Law Amendments Committee, Canadian Association of Chiefs of Police]

Good afternoon, everybody. Thank you for the opportunity to address the committee on behalf of the Canadian Association of Chiefs of Police.

Human trafficking investigations and prosecutions require significant victim participation. This leads to the revictimization of individuals who have to retell their stories and relive their experiences on multiple occasions.

While police in Canada focus on trauma-informed practices, the nature of the system required to hold offenders accountable is adversarial, difficult for victims to navigate and not victim-centred. The primary goal should be to fully support victims, who are often children and vulnerable individuals. This may include helping the victim leave the exploitative situation, but this often happens in the absence of criminal charges or offender accountability. A significant strategy employed by police to combat sex-related human trafficking is to hold offenders accountable in court by relying more on corroborative evidence and less on direct victim testimony.

The section “Commodification of Sexual Activity” and related sections of the Criminal Code are useful for police to combat sex trafficking. For example, in 2018, the Vancouver police used subsection 286.1(2), “Obtaining sexual services for consideration from persons under 18 years”, to arrest and convict 24 individuals who made efforts to purchase sex from children. In 2020 and 2021, the Ontario Provincial Police charged 26 males and two females with a variety of offences related to sex trafficking, including trafficking in persons, material benefit and procuring and advertising sexual services.

Police agencies use these offences to focus on offenders, who are often the buyers of sex and the profiteers of human trafficking victims. These offences may or may not require evidence in the form of victim testimony. They are often supported by corroborative evidence that the police can obtain via the use of search warrants, production orders and other evidence-gathering techniques.

For example, I am aware of an investigation in southwestern Ontario in which a 17-year-old victim of sex trafficking never provided a statement to police. Despite offers to support the victim, the combination of her fear and personal vulnerabilities prevented her from ever giving a statement. However, the police were able to collect sufficient evidence to arrest the accused. A warrant was obtained to search a phone that the accused had in his possession upon his arrest. The evidence contained within it, along with corroborative evidence from the victim's mother, was sufficient to prove the procuring charge. The offender pleaded guilty and received a jail sentence.

The offences in section 286 of the Criminal Code led to this offender accountability, whereas the same evidence without victim testimony would not have been sufficient to prove a human trafficking charge to the requisite standard in criminal court. In addition, where human trafficking and offences from section 286 are laid in the same case, the legislation being studied provides much-needed flexibility in developing a prosecutorial strategy when victim testimony is or becomes unavailable for a variety of reasons.

The Criminal Code also provides exceptions to those who provide their own sexual services, whether independently or co-operatively, as long as the only benefit received is derived from the sale of their own sexual services. The exceptions codified in law under subsection 286.2(4) and section 286.5 extend to those who assist others in the sale of their own sexual services—for example, by keeping them safe—and derive a financial or material benefit, as long as there is no exploitative relationship. As a result, police are not laying charges in these circumstances.

The Ontario Court of Appeal recently upheld the constitutionality of the relevant offences and further defined the exceptions in a case called Regina v. N.S. The citation for that is R. v. N.S. 2022 ONCA 160. I encourage the committee to reference this case as part of your decision-making process.

The law as it is does not permit the police to target individuals who provide their own sexual services and those who receive financial or material benefit from non-exploitative situations. The focus of the police has been to target predatory offenders and organized crime groups exploiting vulnerable victims. The legislation being studied is an essential tool for police to ensure the safety and security of children, vulnerable adults and victims of crime and, where appropriate, to prosecute offenders who exploit them.

The CACP recommends that the current statutes be maintained and is not advocating for change.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you.

I now give five minutes to the Canadian Bar Association. I think they'll split that time between themselves.

It's over to you.

[Kevin B. Westell, Secretary, Criminal Justice Section, The Canadian Bar Association]

Good afternoon, Chair and honourable members of this committee.

My name is Kevin Westell. I'm the secretary of the CBA criminal justice section and a criminal lawyer currently practising in B.C., the traditional territory of the Musqueam, Squamish and Tsleil-Waututh nations. I'm coming to you from there now.

Thank you for inviting the CBA to discuss this particular act. Ms. Grundberg is here. We'll split the time. She'll come after me and is from the municipal law group. My perspective is from the criminal group.

The CBA is a national association of 36,000 members, including lawyers, law students, notaries and academics. Our mandate includes seeking improvement in the law and the administration of justice.

One of the things this CBA section prides itself on is that our membership comes from both the Crown prosecutors of this country and members of the defence bar, and also from members of the bars of this country who act for vulnerable witnesses as well. As such, we say that we bring a unique and balanced end-user perspective to the system.

The comments I raise on behalf of the criminal lawyers' perspective concern the extent to which this legislation is really built to meet the overarching aim of the act as set out in the DOJ's 2017 technical paper, namely, to strike a balance between the interests of two vulnerable groups: those who are subjected to prostitution and children who may be exposed to it.

I'm going to talk first about section 286.1 of the act, which criminalizes the purchase of adult sexual services, including consensual and non-exploitative transactions. While the act of selling sexual services is not criminalized, the very fact of the criminalization of the purchase of sexual services maintains a risk of harm to vulnerable sex workers within our populations. We feel this section should be removed altogether. Section 286.1 is arbitrary, grossly disproportionate and overbroad. It captures non-exploitative consensual sex work in the net of criminal liability and prevents sex workers from availing themselves of protective measures.

Sections 286.2 and 286.4 also pose safety risks. Restricting sex workers' ability to advertise limits their access to clientele, forcing them to conduct their business in public locations rather than in safe indoor environments. Restricting the ability of sex workers to hire employees such as bodyguards and executive assistants by making them vulnerable to criminal liability severely limits the ability of sex workers to protect and organize themselves and to grow their businesses with a recurring clientele in safe, secure locations.

Charter challenges based on that notion or the notion that such concerns have led to Superior Court rulings that the sections I've mentioned are unconstitutional, and the sheer volume of litigation dealing with the breadth of these provisions and its impact on their constitutionality, militate, we say, for amendments narrowing those provisions.

Finally, from the criminal perspective, there is the issue of mandatory minimum sentences. At its 2021 AGM, the CBA adopted a resolution urging the federal government to eliminate mandatory minimum sentences for offences other than murder and to include a safety valve for offences where mandatory minimum sentences remain. Mandatory minimum sentences implemented by this act are vulnerable to constitutional challenge, and the CBA sections recommend their removal.

The Ontario Court of Appeal, in Regina v. Joseph, recently ruled that the mandatory minimum sentence required by section 286.2 is unconstitutional and of no force and effect. Maintaining the mandatory minimum sentences mandated by the act runs contrary to its broader high-minded purpose: to prioritize the protection of vulnerable populations from exploitation. Mandatory minimum sentences have consistently been shown to exacerbate the exploitation of vulnerable populations, in particular Black, indigenous and racialized populations.

Further, as noted by the Public Health Agency of Canada, indigenous women, who are most likely to be affected by mandatory minimum sentences, are also disproportionately overrepresented in sex work. Imposing mandatory minimums on those who communicate for the purpose of securing sexual services negates the self-determination of vulnerable and marginalized people over their own bodies, further marginalizing those individuals. This is the opposite of the effect intended by the legislation.

I thank you for your time, and I welcome any questions the committee may have when it's my turn.

I'll turn it over to Jeneane.

[The Chair, Liberal, Randeep Sarai]

Jeneane, you have 30 seconds.

[Jeneane S. Grundberg, Chair, Municipal Law Section, The Canadian Bar Association]

I'll hit the high points.

First, we're recommending that there be revisions to add definitions to subsection 213(1.1), the offence respecting communication to provide sexual services by the seller.

Second, we recommend that the same prohibition be extended logically to other situations where children frequent.... School grounds, playgrounds and day care centres are mentioned, but this should be extended to other locations such as swimming pools, recreation facilities and shopping malls.

Third, we would encourage the committee to pursue more grassroots consultation.

Fourth, we recognize that since Bill C-36 became law, the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls has been released. For ease of reference, we have attached the relevant calls for justice, and we encourage you to reference those calls for justice when you're deliberating on the future changes.

Thank you very much for the opportunity to present.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Hopefully, you'll be able to finish off anything else you had to say in one of the questions.

I'll go to the first round of questions for six minutes, beginning with Mr. Cooper.

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

Thank you very much, Mr. Chair.

Thank you to the witnesses.

It's very good to see my former colleague, Ms. Grundberg. Welcome. I'll allow you to carry on from where you left off.

Before I do that.... In your brief, you mention section 213 and the definition of “public place”, which you characterize as “circular”. Perhaps you could elaborate on some of the issues you see with the definition and changes that could be made to provide greater clarity.

[Jeneane S. Grundberg]

Thank you very much, Mr. Cooper.

Just to provide context, there are three different prohibitions relating to communication.

First, the prohibition relating to the seller is under subsection 213(1.1). This is the section that we focused on primarily in our submission. That prohibition prevents the sex worker from “offering or providing” the sale of sexual services “in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre.”

The definition of “public place” in subsection 213(2) only applies to that section, but, as I mentioned in our written submission, it's somewhat circular. It simply says that a public place is essentially a place to which the public is invited. The definition doesn't really provide any meat, if you will, or additional context.

Then, there is the prohibition relating to a traffic impediment. Under subsection 213(1), that prohibition applies to both the seller and the purchaser.

Now, section 286.1, the main section relating to communication, applies to the purchaser. It is broader, in that it says it is an offence to communicate “with anyone for the purpose of obtaining for consideration” sexual services. There are two tiers, if you will, of offences: a generic offence for summary conviction and, of course, the more serious, indictable offence of communication “in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present”.

For the purchaser, if you will, the communication has a broader location and includes locations where children “under the age of 18 can reasonably be expected to be present”. But for the sex worker, it is narrower and tied to, at present, the public place or place open to public view that has those three qualifiers: school ground, playground or day care centre.

Now, the problem with those three terms, as they apply under subsection 213(1.1), is that they're not defined. For example, a term like “playground” might seem self-evident at first blush. Well, what does it mean? Is it a place—as might first come to mind—where there are slides, monkey bars, etc.? Does that mean it's restricted to an outside event, or is it some place that would also be included within a recreation facility? These things simply aren't known. Where there's ambiguity in terms, there's difficulty with respect to both compliance and enforcement.

In our paper, we outlined some case law post-2014, not directly relating to these sections, but cases that have struggled with the issue of what is meant by “public place”. We would leave those for your consideration, because it does show that the courts wrestle with this.

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

Right. Thank you for that.

You briefly touched on, in the very short time you had to present, extending the prohibition on communication under subsection 213(1.1) to include additional lands that children frequent, I guess because there doesn't seem to be a rational basis to, on the one hand, include school ground, playground or day care centre, but, on the other, exclude places like swimming pools and public parks, which children also frequent.

[Jeneane S. Grundberg]

Yes, precisely. There doesn't seem to be a rational explanation. We don't know why those three specific locations were chosen—school grounds, playgrounds and day care centres. It does seem like it would be logical to extend the location to other places that children would frequent, such as public parks and swimming pools.

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

What is my time, Chair?

Time is up. Okay, thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Cooper.

Next we have Mr. Naqvi for six minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Chair.

Can I go back to Inspector Byrne? Sorry, maybe I'm getting your title wrong.

I want to start with the experience of policing around the enforcement of this legislation. If you have some data from the Canadian chiefs of police, that would be very interesting to know. Since the enactment of this legislation, what has been the experience in terms of enforcement? What have been some of the deficiencies, the challenges, that you may have faced with the enforcement of this particular piece of legislation?

[Supt Lisa Byrne]

I don't have statistics readily available, but I would be happy to supply them at a later date, if that is acceptable.

As I said in my statement, our difficulties in enforcement really involve having the victim come to court and getting that statement from the victim. It is very difficult in the human trafficking charges to get a victim on board and have them attend court. There are multiple vulnerabilities, and when we're dealing with high-level, organized criminal groups in particular, there are additional threats to the victim that make it very difficult to bring that person to court.

Additionally, when we do enforcement, the more offences we have.... If we think of the offences as a tool, we can use these offences. These will not necessarily be the charges that we lay in the long run, but the tools to obtain and gather evidence. We use them to seek judicial authorization, for example search warrants to search phones, and to gather other corroborative evidence that we can use either to corroborate the victim's testimony or instead of the victim's testimony.

Our goal is not to target individuals who are selling their own sexual services. Our goal is really to target offenders who are exploiting vulnerable victims, and to also target the buyers of sex who are being exploitative, particularly around children.

Those are some of the prevailing strategies that you will see with police across the country.

Let me know if that answers your question or if I can clarify.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

I want to further probe the point you just made, which was that your aim is not to go after people who are voluntarily offering themselves as sex workers versus those who may be exploited.

How do you make that distinction from a law enforcement perspective?

[Supt Lisa Byrne]

From a law enforcement perspective, typically when we enter into an investigation, it usually involves a complaint that comes in via a complainant, a victim or a witness, and it will often have something to do with violence or some other overt act.

Typically, those who are involved in the selling of their own sexual services.... If it's peaceful and consensual, that does not come to our attention, so we're not proactively targeting people who are selling their own sexual services.

I would argue that we're more reactively investigating when there are additional offences or concerns such as violence, intimidation, coercion, or children involved. Those would be the differentiations. We're not proactively targeting those who sell their own sexual services in a consensual manner.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Has it been your experience that one of the side impacts of this legislation has been that those who are involved in sex work have gone underground because they're concerned they may be targeted as a result of this particular law?

[Supt Lisa Byrne]

I cannot in good conscience speak for the entire country in that regard. I can tell you that here in Vancouver that is not my experience. The Vancouver Police Department does have a very good and open relationship with the sex worker community in Vancouver. I do not believe they have gone underground per se. They certainly don't fear enforcement from the Vancouver Police Department specifically, because we simply aren't doing it. We are tasking and enforcing where there are other concerns, as I've already mentioned—violence, organized crime and exploitation of children.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

We've heard from some, at this committee, that the legislation allows better protection for those who are in the sex trade industry.

Has that been your experience as law enforcement, that it does allow for that protection, or not?

[Supt Lisa Byrne]

I would say, yes, it does allow for protection, in the sense that a legitimate, lawful brothel owner, where there is no exploitation whatsoever and they're operating within the law.... That allows for the protection of not only the operator but the women working in that situation. The way it stands, the law also allows for the protection of vulnerable people, because we have the tools necessary to actually engage, initiate, and carry on with those investigations in the hopes of getting criminal charges.

As I said in my statement, that's not always what happens. Often, the success of these investigations is the extraction of the victim, who is usually female, from the situation and getting her to a safe environment. The criminal charges sometimes can be secondary to that primary concern regarding the wellness of the victim.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

Mr. Westell, does the Canadian Bar Association have any position on decriminalizing the sex trade in Canada, something akin to New Zealand?

[Kevin B. Westell]

At this point, we have not gone that far in any of our positions. I would say that we're just concerned about.... The closest we've come to that position is the position I pointed out with section 286.1. We don't believe that provision should be in there at all. We don't believe that the purchase of sexual services, without any qualifications for exploitative circumstances, should be criminalized. It just poses more problems. It doesn't add anything, and it doesn't do anything to protect Canadians.

I don't mean this in any crass way, but when we say that sex work is the world's oldest profession, there's a reason for that. Sex work is going to continue to go on. There are going to continue to be those who sell it, and there are going to continue to be those who purchase it. For that reason, there's really no public interest in criminalizing its purchase.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

Next we have Mr. Fortin, for six minutes.

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

Thank you, Mr. Chair.

Mr. Westell, the Canadian Bar Association believes that criminalizing prostitution isn't necessarily helpful. That said, how far would you be willing to go? I haven't heard anyone say that sexual exploitation of minors is acceptable and should be legalized. On the other hand, when we talk about prostitution between consenting adults, some people say it should be allowed and decriminalized, while others argue that it should remain a crime. There are also issues related to the people who work in this environment.

How far does the Canadian Bar Association believe the law should go? Should a decriminalization process eventually be undertaken, what behaviours should continue to be considered criminal acts and which should be more tolerated?