116 Simcoe Street, Suite100, Toronto, Ontario, Canada

Bill C-36 (Prostitution)

Submissions on Bill C-36

Graeme Hamilton, Representative, Canadian Council of Criminal Defence Lawyers: Good morning, chair and members of the committee. Ms. Yanful and I are here today as representatives of the Canadian Council of Criminal Defence Lawyers. The CCCDL was formed in November of 1992 to offer a national voice and perspective on criminal justice issues.

Since the organization’s inception, the CCCDL has intervened in important cases before the courts of this country. It has been invited by the federal government to consult on major pieces of criminal legislation, and it is often asked by the media to comment on current issues. Our representatives have appeared before the Standing Senate Committee on Legal and Constitutional Affairs and the House of Commons standing committees on justice, human rights, public safety and emergency preparedness.

The current board has representatives from all ten provinces and three territories.

I would like to address two aspects of the legislation that are of concern to the CCCDL before turning things over to Ms. Yanful, who will use the balance of our allotted time to make some additional points.

First, prostitution is often envisioned as a big city issue, but it is not. A sex trade exists in medium-sized and smaller communities across the country, and the CCCDL fears that the negative effects of this bill will be felt acutely in small northern locales. Anecdotally, it would appear that a large proportion of the sex trade in these communities is what was referred to by Aboriginal Legal Services in its intervention in Bedford as “survival sex,” sex to enable women who are living in inhospitable climates to put a roof over their heads. These women engage in the sex trade as an act of desperation, and it would seem that they are unlikely to be deterred by provisions discouraging prostitution. Provisions that stigmatize and marginalize those involved in the sex trade and that push it into the shadows simple make these vulnerable women less safe.

Of particular concern is the prohibition on communicating in public places where a child can reasonably be expected to be present. Kim Hawkins, a board member from the Yukon, has described the situation in Whitehorse.

In the city of Whitehorse, the High Country Inn is next to a playground, and the Stratford Motel is on the next block from Wood Street secondary school and within a few blocks from the Whitehorse elementary school. Within an area that is roughly 14 blocks long and four or five blocks deep, Whitehorse has two schools, both movie theatres, major grocery stores, as well as the majority of hotels. Individuals attempting to access hotels will likely be near other services where children might reasonably be expected to go, such as schools, theatres, grocery stores, banks and dentists, et cetera.

Secondly, if Terri-Jean Bedford, Valerie Scott or Amy Lebovitch came to one of us for an opinion as to whether the new section 286.2 addresses the concerns they raised about the old “living off the avails” proscription, we could not say that it does. I recognize that the minister and officials from the Department of Justice have testified before the house committee and here that this provision is not intended to catch bodyguards and so forth, but the fact is that anyone living with or habitually in the company of a person offering sexual services is deemed to have received a material benefit, and the exceptions are vague and do not lend themselves to a single objective interpretation. For instance, looking at section 286.2, what is a “legitimate living arrangement”? What does it mean to “counsel or encourage”? Most significant, and this was certainly an issue before the house committee, what does “in the context of a commercial enterprise” mean? A commercial enterprise, it would seem, need not involve more than one person, and if that is so, section 286.2 casts an extremely broad net.

One amendment that would go a long way toward clarifying the scope of this provision would be a further delineation of what constitutes a commercial enterprise, or, better yet, deleting section 286.2(5)(e) altogether, leaving intact the remainder of this subsection, which is directed at exploitation.

Nana Yanful, Representative, Canadian Council of Criminal Defence Lawyers: Good morning. Thank you for the invitation to appear in front of you today. It’s an honour to have this opportunity to share briefly some of my thoughts.

While the purpose as set out in the new bill is cognizant of the real harm that some sex workers face and has tried to move away from the paternalistic lens through which it views choice, its message fails when it meets the language in the legislation. It fails to recognize the diverse experiences in the sex trade, makes it difficult if not impossible for sex workers, specifically street-level sex workers, to do their work in safe environments, and undermines the freedom-of- speech principles in the advertising sections, diminishing the capacity of sex workers to safely screen their clients.

First, the new communicating and advertising provisions do not address the concerns raised by the Supreme Court of Canada in Bedford. These sections prevent effective screening of clients and risk criminalizing people not intended, specifically Aboriginal and racialized women, transgendered persons and poor people who engage in street-level and survival sex work.

Second, the continued stigmatization of sex work exacerbates the power imbalance that already exists between law enforcement and marginalized communities.

Under section 213, police are able to detain sex workers under the threat of conviction. While it has been suggested by some police witnesses appearing before the house that this section can be used as a policing tool to engage with sex workers who appear to be in a vulnerable situation, using the threat of conviction to access safety as a bargaining chip would fuel further distrust between police and sex workers, many of whom already have a complicated and precarious relationship with police.

In these ways, the section fails to meet the objectives of the legislation, and fails to take into account the concerns raised by the court in Bedford.

It is difficult to see how the legislation, as is, will stand up to constitutional scrutiny.

On behalf of the CCCDL, Mr. Hamilton and I thank you for the opportunity to be here and welcome your questions.