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Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts.—Third Reading


Senator Joyal: Honourable senators, this is a very emotional issue because each one of us has a personal position in relation to the morality or immorality of prostitution, about the legality or non-legality of the prostitution. Prostitution, which has existed since time immemorial, is something that has been there and will continue to be there, but we certainly hope not in the context that we often see it represented or reported in the media with exploitation of persons under the age of 18, persons coerced to offer their sexual services because they are drug addicted or under the control of pimps or johns, or because they have been trafficked by a street gang, mafia or other criminal network. We all have a personal reaction to that, and it is certainly one of those issues whereby you have to pause and think about the implications it has for society as a whole.

My first comment would be to underline for those of you who didn't have the benefit to participate in the pre-study and the study of Bill C-36 that the way that the committee was conducted, under the chairmanship of Senator Runciman, in my opinion was exemplary. In support of that conclusion, I want to read to you an email that I received from one of the witnesses who testified, a former prostitute. I think I should read it because it speaks to the level of seriousness and professional responsibility that senators have expressed all through the difficult study of that bill. It says:

Dear Senator Joyal, I want to take a moment to thank you for your very thoughtful question that you posed to me when I testified before the Standing Senate Committee on Legal and Constitutional Affairs about Bill C-36 this week.

I underline this:

I had a very negative experience when I testified before the Justice Committee (House of Commons) in July and wrote about it when I returned home. On a personal note, I wish to tell you that my father was a decorated veteran of World War II and he taught me to love this country and its institutions. My parents were older when I came along, and while my father knew that I was troubled and struggled with addiction, he never knew that I was a sex worker, as I did not want to hurt him. While I continue to have a deep love for this country and the democracy that my father fought for, I feel very disillusioned by the treatment of those advocating against Bill C-36 and for the decriminalization of sex work by the representatives of the Harper government, so it meant a great deal to me to be treated with dignity and respect by you and the other Liberal senators. My father passed away early in my recovery from addiction, but I know that he would be proud of the activist I have become. He taught me to stand up for what is right and to fight for what you believe in, and I will continue to fight for justice for sex workers.

Again, my deepest thanks to you, sir.

I want to add on a personal note that the negative comment did not apply to the government senators sitting on the Standing Senate Committee on Legal and Constitutional Affairs. I certainly am a witness to that. The negative comments were addressed to the experience that witness had in the House of Commons. It is signed by Ms. Kerry Porth, Pivot Legal Society, former sex worker.

That being said, honourable senators, I want to add my personal comment to Bill C-36. In my own personal conviction, I think Bill C-36 is flawed on three grounds. The first is because the bill is premised on the assumption that any sex work is exploitative, any offer of sexual services is exploitative. It's an assumption. It's not demonstrated. It's taken for granted. It's an assumption based on which grounds? It could be a variety of grounds. One could think, as I mentioned in my opening remarks, on morality.

Another one could be seen as being exploitative of the human body, be it female or male. It exists. The vast majority of sex work is not exploitative, per se. A large number of prostitutes, again male or female, do it wilfully. We have heard testimony on that. Of course we have also heard other stories. There's no doubt about it. It's not an easy activity. It's a dangerous activity, on all accounts. The Supreme Court has recognized this in its decision, but to base the whole philosophy of the bill on the principle that all sexual service is exploitative would not stand the test of reality in the Supreme Court. As a matter of fact, the three women who were petitioners in the Supreme Court were in these sexual activities wilfully, and the Supreme Court accepted that. Nobody questioned that.

The other aspect of the presumption of the bill which in my opinion would not meet the test of reality is based on the assumption that all persons who offer sexual services are deemed criminal. It makes the sexual activities criminal, as my colleague Senator Baker has stated. However, at the same time, because the bill recognizes that sexual activity is exploitative, the corollary is that all persons who are involved in sexual activities are victims; they are victimized. It is not knowingly, but they are victimized. They are presumed to be victims.

The bill, in relation to that conclusion, makes some exceptions to that situation, as Senator Baker and Senator Jaffer have been eloquently explaining. The bill makes exceptions. In other words, if you practice the activity of offering your sexual services by yourself in your own apartment — with a bodyguard that you hired, with somebody who takes the calls, with somebody who will go and get the customers — on your own, with only you as an individual, it's allowed.

We learned even at the conclusion of our report, in the last testimony that we heard, as I stated and questioned Senator Baker on, if you operate under a cooperative form of organization, it would also be allowed under Bill C-36, under the new sections of the Criminal Code. The assumption that you are exploited and a victim is negated by a form of organization, either on a cooperative basis or on your own. There is something illogical there.

Another aspect that is illogical is the fact that if you offer your sexual services with a group of persons, and you are found guilty by the police of offering sexual services, you will have a criminal record. Having a criminal record will make it much more difficult for you to be rehabilitated, in other words to leave that kind of activity to try to assume another kind of responsibility or job in the normal course of life.

I raised that question to some of the witnesses, and here is the answer or comment that I received when I raised that question. It is from one of the witnesses who sent me an email last week:

During my testimony, I was very pleased that you focused a line of your questioning on the idea of expunging records for those who have been charged with prostitution offences. You correctly identify this as "the law of unintended consequences," whereby, in trying to criminalize sex sellers, you might, in fact, stigmatize them in a deeper way. This, of course, is a serious problem for both women who have been sex trafficked and charged with prostitution offences and those who are victims of prostitution and have been charged criminally.

In other words, we are presuming that every activity in relation to selling sexual services is deemed exploitative. We make the person who does that activity a victim, but, at the same time, we charge that person with a criminal record and expect that that person will finally come back into the normal course of life.

We all know that having a criminal record will bar you from all work in the civil service or public service and from many jobs, even the lowest-paid jobs in large, multinational companies. I won't name one, but many come to mind. It will prevent you from travelling because, in your passport, that will be part of your criminal record. For all kinds of objectives, which I'm not disputing today, we have made much more difficult the deletion of criminal records in the past years because we have changed the rules that allow a person to have a criminal record deleted.

I'm not disputing the objective that some prostitutes are victims, that some prostitutes are exploited and so forth. We all know those details and horror stories. Again, I'm not trying to diminish them, but by making the criminal record of those alleged victims more difficult to get rid of, we are victimizing the prostitute a second time. So there is some illogical element in the bill. I'm sure that the court, when they have to review the overall system that the bill implements, will have to look into, as I say, the unintended consequences.

It is the same with a second aspect of the bill that is very questionable, the fact of criminalizing the customer. We all recognize that by criminalizing the customer instead of putting all of the emphasis on the prostitute as, again, being male or female, we are trying to reduce the demand. It's what I call the simple market law. You have reduced the demand, so the offer will diminish. Let me make a simple parallel. If nobody asks for apples, fewer apples trees will be grown and maintained because nobody wants the crop. Nobody wants the apple. It seems to me that it is very illogical, that by criminalizing the customer and letting a person offer his or her sexual services, we are, in fact, putting ourselves in a dear situation.

Let me make a parallel. Suppose you are allowed to offer your services as a painter. You are allowed to buy the paint, the paintbrush. You are allowed to hire the ladders and the scaffolding and all you need. You are allowed to rent a van to move your stuff. But anyone who will be in contact with you to buy your services as a painter will be deemed to be a criminal. There's something illogical there. Either the activity is legitimate or it is not. It might be legitimate in some cases, if you are operating alone, but it will be illegitimate if you are operating with a group. There is something there that is very illogical at face value.

The other, more important element in that situation is that by criminalizing the customer, what do you do? What will you provoke in the system of offering sexual services? It's simple. You will drive it underground. Why? Because of course a person who wants to buy sexual services from another person will not be in a position to do that in the open. It will push offering sexual services underground, push the prostitute more into the dark alley, not allow the prostitute to negotiate.

May I have another five minutes, honourable senators?

The Hon. the Speaker pro tempore: Five more minutes is granted to Senator Joyal?

Hon. Senators: Agreed.

Senator Joyal: What you will do, in fact, is put the prostitute more at risk in negotiating the condition of the offering of the services. The Supreme Court recognized that clearly in Bedford. The negotiation aspect is essential for the safety and the security of the prostitute. The court has been very clear. Only one prostitute need be put at risk to make the section unconstitutional against section 7 of the Charter, which is the protection of the security of the person.

By criminalizing the customer, which is, as I said, essentially with the objective of reducing the demand, that is, reducing the offer of services and pushing prostitutes out of the activity, we are, in fact, endangering the safety and security of the prostitute. I'm not the only one contending that. The British Medical Journal came forward in June with a long study evaluating what impact criminalizing customers would have. I will read the title. I won't read the study, of course, but I will read the title of the study by the British Medical Journal. If you don't know what it is, the British Medical Journal is a very serious, reliable, scientific publication. What is the title? "Criminalisation of clients: reproducing vulnerabilities for violence and poor health among street-based sex workers in Canada—a qualitative study."

We have heard that from the Vancouver Police, which has adopted the model of criminalizing the customer. We have also heard it from the municipal police of Montreal, which has adopted that approach. In fact, that section of Bill C-36 will certainly be challenged because it will have that unintended consequence of making the offer of services more dangerous by unbalancing the equal footing on which a person who offers his or her sexual services should be able to negotiate with the person who accepts that offer on the basis of maintaining the safety of the person, the health of the person and the ability of the person to refuse to perform some forms of sexual activities. If you criminalize the customer to make it more pressing for a person who offers his or her services to accept any kind of conditions, it makes that person more vulnerable to safety and health conditions. This section of the bill, in my opinion, will be challenged because it is contrary to the very conclusion that the Supreme Court drew from the former sections of the Criminal Code in relation to that.

What were the three elements of the Bedford case? There were three elements that the Supreme Court decided on, against the sections of the Criminal Code. The first one is that keeping a common bawdy house was struck down. Bill C-36 recognizes that. Bill C-36 removes from the Criminal Code the definition of "common bawdy house" in relation to prostitution. They maintained "common bawdy house" only in relation to indecent acts and removed it from prostitution.

The second element they struck down in the Bedford case was the section of the Criminal Code dealing with living off the avails of prostitution. The third element was communicating in public for the purpose of engaging in prostitution, which is the whole section that our colleague Senator Baker mentioned about communication. As I stated, the court mentioned repeatedly in the Bedford case that communication is essential to the security, safety and maintenance of health of the prostitute.

The section of Bill C-36 that limits communication certainly will be challenged in court again, honourable senators, on the presumption of exploitation and victimization, which were not recognized in the Bedford case. The three people who challenged the criminal records before the Supreme Court were there on the basis of consenting adults — not coerced or under the age of 18. They knew perfectly well the activities they were engaged in. The court repeatedly recognized that it is a dangerous activity, but nowhere did the court say that because it is dangerous it should be prohibited. In other words, when something is dangerous, you have to take the proper means to frame it in the context of maintaining the security and health of the person.