Mr. Speaker, I will get to that member's point about advertising in just a moment. She has it exactly wrong, as a number of commentators have. I will be happy to explain it to her. I hope she sticks around for my speech.
I am pleased to rise in support of Bill C-36, the protection of communities and exploited persons act. This legislation represents the government's response to the Supreme Court of Canada December 2013 Bedford decision.
Before discussing the measures proposed by Bill C-36, it is important to examine the Bedford decision, which has informed Bill C-36 proposals for law reform.
The NDP justice critic mentioned a few moments ago that we had not talked that much about the Bedford decision in relation to our bill, so I am going to do that right now. I hope she has a chance to stay and listen to my speech.
Under the current law, neither the purchase nor sale of sexual services is illegal. Instead, existing criminal offences prohibit activities related to prostitution. In Bedford, the Supreme Court of Canada found three of these offences unconstitutional: first, the bawdy house offence with respect to the practice of prostitution under section 210; second, the living off the avails of prostitution offence, which is paragraph 212(1)(j) and third, the offence of communicating in a public place for the purpose of purchasing or selling sexual services, which is paragraph 213(1)(c).
The court suspended the effects of its decision for one year, until December 19, 2014. If there is no legislative response this ruling will result in decriminalization of most adult prostitution-related activities.
The Supreme Court of Canada found that the impugned offences violate section 7 of the Charter of Rights and Freedoms, which is the security of the persons who sell their own sexual services, by preventing them from taking measures to protect themselves while engaging in a risky but legal activity. Such protective measures include independently selling sexual services from a fixed indoor location, hiring bodyguards and drivers, and negotiating safer conditions for the sale of sexual services in public places.
Specifically, the offences were found to be grossly disproportionate or over-broad with respect to the legislative objectives, which are to combat neighbourhood disruption or disorder and to safeguard public health and safety; to target pimps and the parasitic exploitative conduct in which they engage, which is living off the avails of the offence; and to take prostitution off the streets and out of public view in order to prevent street prostitution nuisances, which is the public communication offence in paragraph 213(1)(c).
The objectives of existing criminal law prostitution provisions as described by the court focus on the nuisance aspects of prostitution, with the exception of the living off the avails provision, which was found to target exploitative conduct. As I mentioned, construing these objectives and these offences narrowly led to findings that they were unconstitutionally over-broad and grossly disproportionate in relation to their objectives.
The Supreme Court of Canada was nonetheless clear that Parliament is not precluded from imposing limits on where and how prostitution may be conducted as long as it does so in a way that does not infringe on the constitutional rights of those who sell their own sexual services. That is precisely what Bill C-36 would do. It would criminalize the harmful conduct associated with prostitution while respecting the constitutional rights of all Canadians.
To start, Bill C-36 would make prostitution an illegal activity by criminalizing half of the prostitution transaction. This is done to show that the people who are trapped in this awful trade, largely women, are victims. It is showing compassion toward them.
Whenever prostitution, which involves the purchase and sale of sexual services, takes place, a criminal offence would be committed by the purchaser. This would be the first time in Canadian criminal law that purchasing sexual services from an adult has ever been criminalized.
The preamble in Bill C-36 explains why it is making prostitution illegal. It is a clear statement of the objectives of the Bill C-36 proposals for law reform, clarifying that Parliament sees prostitution as an inherently exploitative activity that always poses a risk of violence. Members of both the Liberal Party and the NDP have said that they agree, that it is exploitative, and that most of the people trapped in this awful trade are being exploited. Prostitution would no longer be viewed as creating merely neighbourhood disruption or disorder or street nuisances.
The preamble explains that prostitution is not only viewed as a form of exploitation of those subjected to it. It also recognizes the social harm caused by the normalization of sex as a commodity to be bought and sold, and it clarifies the importance of protecting human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on vulnerable groups, including women and children, and especially aboriginal women and girls.
Accordingly, Bill C-36 seeks to denounce and prohibit the demand for prostitution and to continue to denounce and prohibit procuring others for the purposes of prostitution and the development of economic interests in exploiting others through prostitution. We hope these measures, over time, will reduce the incidence of prostitution in Canada and the exploitation of those who are trapped in this business.
It also seeks to denounce and prohibit the commercialization and institutionalization of prostitution, particularly when it occurs in businesses such as strip clubs, massage parlours, and through escort agencies, which is largely the case in my city of Mississauga. Finally, the bill seeks to protect communities from the harms associated with prostitution, including related criminality and the exposure of children to the sale of sex as a commodity. These are robust objectives that go far beyond what the Supreme Court of Canada found were the objectives of the existing criminal offences governing prostitution, thereby fundamentally altering the premise of any future charter analysis.
The new offences would have to be constitutionally analyzed through an entirely new lens, one that sees prostitution as a gendered practice, implicating the equality of women and minorities, one that sees prostitution as a practice that exploits those who sell their own sexual services, and one that sees prostitution as causing both community and social harm.
The Supreme Court of Canada expressed concern that the existing offences prevent the selling of sexual services from fixed indoor locations, which the court found to be the safest way to sell sex. If members read the decision, that is exactly what the three appellants, Bedford, Lebovitch, and Scott, asked for. They had all been in the business. They had all been owners of escort agencies, and they had all said, “When you're out on the street, you get beaten. There's no way to properly protect yourself”, and they asked the court to give them the ability to do it safely indoors.
Notably, Bill C-36 criminalizes purchasing sexual services but not selling sexual services. Furthermore, it immunizes from prosecution those who sell their own sexual services with respect to any part they may play in the new purchasing, material benefit, procuring, and, I will point out for my friend, advertising offences. I would recommend that she take a look at proposed paragraph 286.5(1)(b) contained in Bill C-36, and she will find there a specific exemption for that.
It has been misunderstood by a number of commentators in the media. John Ivison and Andrew Coyne of the National Post and Tim Harper of the Toronto Star, got it wrong. They failed to read that provision of the bill, and therefore, based their articles on the absence of the ability of a sex worker to advertise her own services. I would say that Mr. Harper was corrected subsequently by his own colleague, Tonda MacCharles, in a later article and also on CTV's Question Period. Don Martin of CTV also got it wrong. They just failed to read the bill.
I hope they will be listening today and have a chance to take a look at that provision and perhaps comment on how this bill does not prevent sex workers from properly advertising their services in a safe way. This means that persons who sell their own sexual services cannot be prosecuted when they sell sexual services from a fixed indoor location, whether independently or co-operatively. As long as the only benefit received from selling sexual services co-operatively in one location is the safety of proximity to others and each person receives only the profits from their own prostitution, no offence is committed. This approach comprehensively responds to the Supreme Court of Canada's safety concerns about the ability to sell sexual services indoors.
The Supreme Court of Canada's second major concern was that existing offences prevent those who sell sexual services from hiring bodyguards and others who may enhance their safety, but we all know the risks associated with allowing the development of economic interests in exploiting others through prostitution. Third parties may start out as bodyguards or drivers and then over time become abusive pimps who will stop at nothing to maximize profits by exploiting the prostitution of those who work for them, especially women and children.
Bill C-36 carefully balances the Supreme Court of Canada's safety concerns with the need to ensure that exploitative third parties are criminalized. It achieves this goal by criminalizing receiving a financial or other material benefit that is obtained or derived from the purchasing offence, limiting the scope of the offence through legislated exceptions and ensuring that the exceptions do not apply in exploitative circumstances.
The legislated exceptions ensure that persons who sell their own sexual services have the same ability to interact with others as anyone else. The bill would not criminalize those who legitimately receive material benefits from the prostitution of others.
Specifically, the exceptions clarify that the offence would not apply if the person who receives the benefit is in a legitimate living arrangement with a person who provides sexual services, such as a spouse, child, or roommate; if a person receives the benefit as a result of an obligation owed to them, such as where financial support is provided to a disabled parent or where a gift is purchased with the earnings of prostitution; and also if a person receives the benefit in return for goods or services offered on the same terms and conditions to the general public, such as an accountant, a taxi driver, or a security company that offers goods or services to anyone.
In addition to all of that, there is a specific exemption if a person receives the benefit in return for a service or good that is offered informally, such as babysitting or even protective services, as long as the benefit is proportionate to the value of the good or service the person performed and that they did not counsel or encourage prostitution. In short, an arm's-length relationship is required.
This is in the proposed new paragraph 286.2(4)(d) of the bill. It would provide for the sex workers, who my friend is concerned about, to hire a bodyguard on commercial terms to provide security in that safe place. That is why this bill stands on all four corners with the Bedford decision, in my view.
These exceptions reflect existing case law that carves out exceptions to the current living on the avails of prostitution offence. The legitimate living arrangement and the legal and moral obligation exceptions find their origin in the Ontario Court of Appeal's 1991 Grilo decision, which was cited as an authority on these issues by the Supreme Court of Canada in the Bedford case. The exception related to goods and services offered to the general public originates in a line of cases, starting with the 1962 House of Lords decision in Shaw.
The exceptions respond to the Supreme Court of Canada's concern that existing laws do not permit those who sell their own sexual services to take safety measures, such as hiring bodyguards and drivers. However, as I have said, Bill C-36 would strike a careful balance. The exceptions I have just described would not apply if the person who receives the benefit uses violence, intimidation, or coercion; abuses a position of trust, power, or authority; or provides any intoxicating substances to assist or encourage the other person's prostitution.
As we know, that is very often the case. They find young girls who maybe have run away. There has been a problem at home. They find them, they give them alcohol, they give them drugs, they get them addicted. Then they are their slaves, and they put them out on the street to feed that filthy habit over and over again.
The bill would also criminalize where a person procures another person's prostitution or if the benefit is received in the context of a commercial enterprise that offers sexual services for sale, such as a strip club, a massage parlour, or an escort agency in which prostitution takes place. We know those types of businesses are often run by criminal organizations, such as gangs and the Mafia. That is the kind of behaviour we want to criminalize. It is not what the women who are exploited are doing, but the people who are actually exploiting them.
This approach would make it very clear that the exceptions to the material benefit offence would not be available if exploitative conduct commonly practised by pimps is involved. Such an approach responds to the Supreme Court of Canada's safety concerns while at the same time providing protection from the exploitation that involvement in prostitution generally always causes.
The Supreme Court of Canada's final concern was that persons who sell their own sexual services be able to take steps to negotiate safer conditions for the sale of sexual services in public places. Existing laws criminalize all public communications for the purpose of either purchasing or selling sexual services. The Supreme Court of Canada found that this offence prevented those who sell their own sexual services from being able to negotiate safer conditions for their transactions in public places.
On the other hand, Bill C-36 proposes, first, a new offence that would criminalize communicating in any place for the purpose of purchasing sexual services, and second, a separate offence that would criminalize communicating for the purpose of selling sexual services, but—and I have to emphasize this—only in public places where children could reasonably be expected to be present.
Prohibiting all communication associated with the purchasing of sexual services is justified by the new legislative objective of reducing demand for sexual exploitation. In short, purchasing sexual services constitutes exploitative conduct. Attempting to purchase by communicating for that purpose is equally problematic. Prohibiting communication for the purposes of selling sexual services in public places where children can reasonably be expected to be present, on the other hand, in my view strikes a careful, justified, and reasonable balance between the interests of two vulnerable groups: those who are exploited through prostitution, and children who may be exposed to the sale of sex as a commodity and to the dangers associated with prostitution, such as the presence of drugs, pimps, and persons associated with organized crime.
My colleague, the member for Kildonan—St. Paul, mentioned earlier that when she was a school teacher, there were pedophiles and pimps who hung around the schoolyard. They would approach young girls and try to entice them either to get in a car with the pedophile or to get into business with the pimp, and that is the kind of thing we are concerned about.
Bill C-36 does not prohibit persons who sell their own sexual services from communicating for that purpose in any public place other than when children could be harmed by exposure to prostitution.
Furthermore, the Supreme Court of Canada's Bedford ruling is clear that prostitution offences are intertwined, meaning that the offences impact on one another. Greater latitude in one measure, such as permitting prostitutes to obtain the assistance of security personnel, for example, might impact on the constitutionality of another measure, such as forbidding the nuisances associated with keeping a bawdy house.
The regulation of prostitution is a complex and delicate matter. I agree with the Supreme Court of Canada's conclusion that regulating prostitution is a complex and delicate matter. Bill C-36 recognizes this complex need by striking careful balances between sometimes competing interests.
In conclusion, the new legislation proposes an entirely new, made-in-Canada response to prostitution. It tackles the demand for prostitution to reduce its prevalence, thereby protecting those who are exploited through prostitution from the risk of violence caused by their involvement in it.
The new purchasing offence, together with modernized prostitution offences criminalizing third-party involvement in the prostitution of others, sends a clear message: prostitution is dangerous and exploitative and harms society itself. No parent would wish to see their children enter the world of abuse and exploitation that constitutes prostitution.
Legislative approaches that view prostitution as an exploitative practice that victimizes those who are subjected to it have recently received growing international support. I note that France's National Assembly passed a bill in December 2013 that would implement such an approach, and I understand that the bill is currently before France's Senate.
Ireland's parliamentary justice committee recommended implementation of this type of approach in June 2013. The European Parliament recently endorsed such an approach in February 2014, and a United Kingdom parliamentary report recommended this type of law reform in March 2014.
Canada is not alone in its concern about prostitution's harms. These harms are real and require concerted effort to address. The government is committed to working with its provincial and territorial colleagues who enforce criminal law toward ensuring that prostitution's harms are not left unchecked.
Enacting Bill C-36 is the first step toward addressing prostitution's harms. Accordingly, I encourage all members of this House to join me in support of it.
