Bill C-36 (Historical)

Protection of Communities and Exploited Persons Act

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

This enactment amends the Criminal Code to, among other things,
(a) create an offence that prohibits purchasing sexual services or communicating in any place for that purpose;
(b) create an offence that prohibits receiving a material benefit that derived from the commission of an offence referred to in paragraph (a);
(c) create an offence that prohibits the advertisement of sexual services offered for sale and to authorize the courts to order the seizure of materials containing such advertisements and their removal from the Internet;
(d) modernize the offence that prohibits the procurement of persons for the purpose of prostitution;
(e) create an offence that prohibits communicating — for the purpose of selling 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;
(f) ensure consistency between prostitution offences and the existing human trafficking offences; and
(g) specify that, for the purposes of certain offences, a weapon includes any thing used, designed to be use or intended for use in binding or tying up a person against their will.
The enactment also makes consequential amendments to other Acts.

[Cathy Peters, Educator, As an Individual]

Thank you, Madam Chair.

I am a former inner city high school teacher and private citizen raising awareness about human sex trafficking—sexual exploitation for the purpose of prostitution—in order to stop it.

Prostitution would not exist without trafficking. Prostitution would not exist without buyers. Prostitution everywhere in the world is unequal, unhealthy, unsafe and unfair to women. In regard to any federal policy or law regarding women and girls, the question to ask is, does this practice or industry make women more equal and advance the equality of women and girls, or does it set the equality of women and girls backwards?

Since 2014, when the Protection of Communities and Exploited Persons Act became federal law, I've been doing presentations to politicians, police and the public. I just presented at the Canadian Sexual Exploitation Summit.

The most notorious cases in Canada for human sex trafficking and sexual exploitation are from British Columbia: Amanda Todd, victim; Reza Moazami, trafficker, 23 years in jail; and Robert Pickton, sex buyer and serial killer.

B.C. is an example of PCEPA not being enforced, and the result is that sex buyers and sex traffickers act with impunity. British Columbia has become a magnet for criminals and organized crime. B.C. urban centres have become sex tourism destinations. Sex traffickers are targeting very young girls from 10 to 12 years of age.

Dr. Jacqui Linder, a traumatologist from Alberta, states, “Human trafficking is one of the forms of trauma that when you really understand what people are going through and what is being done to them, it is true evil.”

Survivors tell me that it is easy to get into the sex industry and very hard to get out.

Former MP Joy Smith states that education is our greatest weapon. Her foundation operates the National Human Trafficking Education Centre.

In my brief, I described the current trends contributing to human sex trafficking, and I gave 10 recommendations to stop human trafficking and sexual exploitation. Please read my brief to the federal justice committee of February 2022.

PCEPA focuses on the source of harm: the buyers of sex and the profiteers. The clear statement from Parliament was that girls and women are not for sale. They are full human beings with dignity and human rights.

Repealing this law would be a disaster. With the longest border in the world, Canada would become America's brothel. Indigenous women and girls would be the first casualties.

The reason we have a growing problem with sexual exploitation today is that PCEPA was never consistently enforced across Canada. Police were not trained to enforce it, attorneys general and justice systems had no training about it, and there was no robust prevention education rollout campaign to explain it, so Canadians do not know about it.

The idea that sex work is work is completely contradicted by the preamble in PCEPA, the testimonies you have heard and my 40 years in prevention education.

Men and boys are the key to end sexual exploitation and trafficking, because they are the perpetrators and buyers of sex. They need to be taught that girls have value and worth and that every woman and girl has the right to be free of violence.

Please check out my website at beamazingcampaign.org. It is a one-stop shop on the issue. My book is finished, hot off the presses: Child Sex Trafficking in Canada - and how to stop it. It has the resources and research to stop this in Canada. I have a book for each party, including the Bloc. MP Andréanne, I want to make sure that you get a copy as well.

Thank you very much.

[Anna Roberts, Conservative, King—Vaughan, ON]

Thank you, Madam Chair, and thank you to all the witnesses for being here.

I'm going to ask Ms. Walker a few questions. First of all, congratulations on helping more than 8,000 women and on your work with Shine the Light. That is to be commended. Thank you for doing that.

My question pertains to Bill C-36 from 2014, which targets Johns who purchase sex and the pimps who profit from it, while providing support for prostitutes who are looking to escape sex work. Do you believe the implementation and enforcement of this bill is working?

[Naomi Sayers]

That's a really good example.

I'll share a story from law school. I was sitting in law school in constitutional litigation class and working on a theoretical challenge to Bill C-36, PCEPA, which we're here on today. We were building our fact pattern, and I remember my constitutional law prof saying, “That doesn't happen.” I said, “Yes, it does.”

What he was referring to was my personal experience. Working in the northern region, you have to have a driver. If you don't have a driver, you will be hitchhiking. There is no Greyhound bus. There are no cabs. Cabs will not take an indigenous person anywhere unless they charge exorbitant fees. If you do the research that's out there, the cabs even will drop off indigenous women in particular in spots that they didn't ask to be brought to. I said, “You know, PCEPA prevents indigenous women—in particular, young indigenous women—from having those supports.”

The reason I talk about my story so much is that it's not heard. It's not considered. I entered when I was 18. I was still in high school. I was learning to live with a brain injury. I had just survived a horrible car accident and had almost died. I was working two minimum-wage jobs. When you have a brain injury, you have headaches—migraines. You're tired. I was like, “I can't achieve my education goals to go to university if I'm working two minimum-wage jobs.” I was not living at home, and sex work was there.

If you attack minimum wage, if you attack safe housing, if you tackle those other supports.... Maybe I never would have gone into sex work. I don't know, but it got me out. It led me to where I am today. I'm a lawyer and I help other victims and survivors. I think that's key.

[Melissa Lukings, Juris Doctor, Author and Researcher, As an Individual]

Thanks for having me.

Hi. I'm Melissa Lukings. As was just said, I just finished my law degree as a juris doctor from UNB Law. I have a B.A. from Memorial University in Newfoundland and Labrador. All of my education, so two degrees as well as life expenses, has been paid for entirely by sex work. In total, I have 14 years of lived experience in sex work. That includes experience working in massage parlours, managing a massage parlour, operating an advertising website, as well as years of independent work. In terms of scope, it spans Ontario, New Brunswick, Nova Scotia, P.E.I. and Newfoundland and Labrador.

While completing my law degree, and prior to that as well, I was actively involved in sex work research and advocacy across Canada, specifically with the Safe Harbour Outreach Project in Newfoundland; SafeSpace in London, Ontario; as well as the Canadian Alliance for Sex Work Law Reform.

With regard to exploitation, I have had experiences in sexual exploitation, which overlapped with but were distinct from my experiences in sex work, so I will speak to that as well. I've completed the sex trafficking and sexual exploitation course offered by the Arizona Trauma Institute, and I also volunteered with the Sexual Assault Crisis and Prevention Centre in Newfoundland.

I want to highlight the timeline. I started out in sex work in 2008. Between 2008 and 2014, when Bill C-36 went into effect, is six years, and from 2014 to 2020, when COVID happened, work slowed. That was also six years. So I have six years before, that year in between, and then six years after....

To put it into context, I was a sex worker before Bedford. I was a sex worker after Bedford, but pre Bill C-36. I was a sex worker after Bill C-36. I have experienced sexual exploitation. I can speak to the legal issues through the lens of advocacy, and lived experience in sex work, as an employee, an employer, an advertiser and an independent—that does make me a third party—as well as lived experience in exploitation, again which is separate from the sex work.

Very quickly, I just want to talk about what an expert witness is. Before meeting everyone today, I did a little bit of a—I'm not going to call it a deep dive—light dive into everyone's backgrounds. The majority of you seem to be law folk, so I want everyone to think back for a moment to those law school days when you were first learning about evidence. It's a required course for us, so I'm assuming it's a required course for everyone. It's a great class. Do you remember evidence?

In evidence, you learned what qualifies someone as an expert witness. We're talking about unbiased perspective, peer-reviewed, published and lists of qualifications. There are some issues with finding qualified expert witnesses for vulnerable communities. We've had that be a thing in the past. I wrote a paper on it. It's included in my brief, which you will get later.

Where does Paul Brandt fit into this? I can't not say it. I don't get it. I don't know who invited him. After my background investigation, I have some suspicions, but whoever it was needs to refresh their memory on relevant evidence and expert witnesses. A country musician involved with an anti-trafficking group has nothing to do with providing meaningful insight into how laws impact sex workers in the country. It doesn't make any sense.

When you have an expert witness, they're someone who is supposed to provide experience and insight which cannot be intuited without their testimony. I think that was a waste of time, and it made me sad that he was invited before I was, because we both applied.

I want to give you a metaphor.

You're tasked with hanging a poster on a vital community bulletin board. To accomplish this, you're given a few thumbtacks—simple enough. However, rather than using your thumb to press the tacks into the board, you decide to bring in your gas-powered, heavy-duty, reverse engine hammer drill from home. Do you get the tacks in the board? Well, yes, sure. However, in the process of doing so, that gas-powered, heavy-duty, reverse engine hammer drill also ended up fracturing the frame of the bulletin board, effectively breaking it. As a happy bonus, you also ended up causing extreme, extensive structural damage to the wall behind it. Will you be getting any gold stars for this assignment? No, you will not. Nobody's going to be handing out any gold stars to you for damaging the community's bulletin board, no matter how far you bashed that tack into the board before it broke and fell off the wall.

Did your method of completing the task end up creating a scope of impact much wider than you intended? It would seem so. I feel certain in saying that if the assignment you're given is to hang a notice on a bulletin board using thumbtacks and you break the board entirely, no one's giving out gold stars.

Let's talk about these laws. Do they target human trafficking and sexual exploitation? Yes, just as we targeted the notice and the tacks on the board—

[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.

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

All right.

Ms. Jay, is the interpretation working, or am I talking to myself? You can hear me? Good.

Earlier, you told us about your recommendations to improve the Protection of Communities and Exploited Persons Act, the former Bill C‑36. Is there a document?

Have you produced a brief that contains all your recommendations to this effect? If not, are you preparing one?

[Alexandra Stevenson, Ford]

To answer your question about Bill C-36, I think we need to keep it. I briefly touched on this but I think it would help the current workers who keep hearing that sex workers are marginalized and in survival mode and for multiple reasons unable to move beyond that survival mode.

Decriminalization would certainly help these workers move within their survival mode more freely but it would be unlikely to provide resources to give these workers a leg up and to get them out of that survival mode. As far as I'm concerned, widespread resources and education to prevent people from existing in a survival mode that results in the sale of their own bodies is the best way to create foundational change.

Decriminalization and repealing PCEPA, as I said, would certainly result in those short-term benefits but the long-term detriments of having more people being exploited due to increased demand and the overall continued lack of resources that result in the sale and commodification of human bodies would continue to be an issue.

We need to keep PCEPA and work together to provide resources so we don't see people having to work the streets because they are in survival mode.

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

Thank you, Mr. Chair.

My question is for Ms. Stevenson.

In your testimony, you were telling us that we should distinguish between prostitution and human trafficking, which I think is obviously self-evident. No one will disagree with that.

However, when you tell us that, I take it that prostitution is, in your view, a proper and tolerable activity that should be supervised and supported, whereas human trafficking is a criminal act that should obviously be criminally prosecuted.

Furthermore, you say that you support the legislation arising from Bill C‑36 and that you do not believe it should be abolished. I would like you to explain clearly your position on this matter. Indeed, since the bill has had the effect of criminalizing the purchase of prostitution, if I can use that expression, this is detrimental to sex workers who would like to file a complaint. That, at least, is what the other witnesses told us.

Where exactly do you stand on this issue? Do you think this law should be abolished or kept? If you think this law should stay in place, I'd like to hear from you on how we can improve it.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Thank you, ladies, for your participation this afternoon. All of you have presented some very passionate arguments that will assist this committee in this very important study.

The time I have permitting, I'd like to ask a number of questions, starting with you, Ms. Stevenson.

I must say, Ms. Stevenson, that your story is a powerful one, and I'm glad you started the preamble by asking us, in recounting your life journey, to walk with you.

For someone who has spent 30 years in law, and in particular the last 18 as a Crown prosecutor, dealing with similar victims, it is quite reassuring to me to hear from you that you have found your voice, that you have not just been patronized by the police for your strength you exemplified during the prosecution, and that you are now not only a survivor, but you're also an advocate. You should be very much congratulated for that. I'm very proud of you for your attendance today and what you have to share.

The gist I got from listening to you very carefully is that part of your strategy is all about educating the public. I'd like to hear from you specifically on your ideas with respect to those who propose repealing Bill C-36, and those, such as you and others you've heard from today, who feel that this is a very important piece of balanced legislation. How does education fit within that equation?

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

... I would like you to answer a question in a few words.

In your opinion, should Bill C-36, or the Protection of Communities and Exploited Persons Act, be abolished in order to legalize prostitution, or should it be retained and improved to better protect sex workers?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to all of our witnesses today as we finish up a very important study.

We know that this legislation came about after the Bedford decision. It's an attempt to strike the right balance, but there are always improvements that can be made.

I note that just in the last few days we've seen the Court of Appeal for Ontario uphold several provisions of PCEPA, or Bill C-36. That brings us to this study. We're studying ways we can improve the law and how the laws work. We've certainly heard from a wide variety of witnesses, some who are very supportive of PCEPA.

I have a question for the Peers Victoria Resources Society. There are two witnesses here. I guess you can decide between yourselves who would like to answer.

It was mentioned that you provide harm reduction support services, education and employment training for current and former sex workers. Could either of you elaborate on what those support services look like, education and employment training as well? Perhaps share with the committee what that looks like typically, the services you are providing for your region.

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

Thank you, Mr. Chair.

I thank you also, Ms. Big Canoe.

I'd like to discuss two issues with you.

First, according to your testimony, Bill C‑36, which was passed in 2014, did not really help the situation. If I understand correctly, in your view, the solution is not to crack down.

I would like you to confirm that and tell me whether the provisions currently in the Criminal Code are sufficient and well suited to address this problem or whether the Criminal Code should also be amended.

Should we amend the part of the Criminal Code related to human trafficking and prostitution?

Then I'd like to talk about consent. Earlier, you said that we should focus on the difference between prostitution and human trafficking. A previous witness told us that the main difference was consent. I thought that was an enlightening distinction. I'd like to hear your thoughts on that.

Can we say it is prostitution when the person gives consent, and say it is human trafficking when the person does not give consent, regardless of age?

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you for that.

Part of your narrative was to talk about the overincarceration rates of indigenous offenders, particularly in this area. When you testified before the committee when Bill C-36 was being debated, you objected to the bill because of the acute aboriginal overrepresentation in the criminal justice and penal systems, and the overall impact this bill would have on a number of aboriginal sex workers, their families and communities.

What has been the impact, in your opinion, of Bill C-36 on the overrepresentation of indigenous people in the criminal justice system and on indigenous sex workers, their families and communities?

[Kelly Tallon Franklin, Chief Executive Director, Courage for Freedom]

Thank you, Chair.

This is a very difficult day.

I am Kelly Tallon Franklin with Courage for Freedom. I'm CED and chair of committees for Canadian and international ECOSOC organizations for business and professional women.

As a survivor of the sex trade, I share current experiences with over 427 minor-aged women and girls, personally and professionally supported. I am sharing their perspectives with additional information from traffickers, johns, different areas of the sex industry, law enforcement, frontline support workers, friends and families. It includes all oriented communities, including the Black, ethnic, language and religious faith communities, as well as all socio-demographics.

I do not speak to repeal Bill C-36, PCEPA, as it's still in the best interests of Canada as a whole. I ask instead that the committee review sections and amendments of it, as well as witness testimony, briefs and documents against CEDAW concerning the difficulty—and our responsibility as a UN-sanctioned nation and as a founding member—of individual versus collective and societal rights and responsibility.

I would also ask that you note the UN's neutrality in view of four choices: the Nordic model, decriminalization, partial decriminalization and legalization.

My [Technical difficulty—Editor] would also say that under decriminalization they have, as indigenous women, been placed at further risk of harm, violence and even murder without increased safety or liberties.

In Germany, the studies of 80% of their population report that the law does not work. In 2017, all parties there agreed the laws were a failure. In Costa Rica, sex trade women have suffered. Legalization lowered their standard of living to less than $2 an hour, opened doors to international criminals, placed them as the now number one central Latin American country for sex tourism with increased child exploitation, and lowered their tier status at the UN.

Canada has a tarnished record, as human trafficking is the second-highest national grossing crime. However, in our quest for a ranking globally, may we not just seek to legalize all aspects to influence our status, but base everything we do on safety and security, addressing root causes and not governmental controls?

In the highest per capita community in Canada, officers I work with have asked me to share the information that they believe repealing PCEPA will result in more bridges to international organized crime and heightened victimization. Project Maple Leaf, which we founded, saw that a large number in the sex trade and in prostitution have not been charged under these current laws, but the procurers and benefactors from the sale of others as managers in that 5% agency privileged advanced have exemplified personal gain under the guise of helpful support of the oppressed and marginalized.

Hard and grey data used under the law enabled the discovery of victims and survivors of the sex trade who were protected, regardless of charges laid, plea deals or prosecution. I agree that inconsistent policing poses an issue, but we also understand that when we bring these issues to the surface, we are going to see a retribution of actions in crime.

A sex industry female friend said openly, “I am not afraid to say that without PCEPA, I and others in the sex industry would have been arrested and without options. Those who aim to repeal these laws do not speak for me.” Repeal will make it even easier for them than it currently is to buy and sell children, and marginalize and oppress women and youth.

An 18-year-old who is fighting out-of-sex-trade trauma has been told in a women's and girls' shelter that she's not “woke” and is being gaslit by posters that her body is her choice and sex work is real work. Last week, she was told that she should do some stripping or rub and tugs as harm reduction to pay for a baby stroller.

Statistics show the likelihood of rape, both as an escort or in the street trade. Murder rates are higher, whether it's legalized or not, and 95% are still under-represented by agency. It means there's no equity in privilege, race or economy that could be presented to you today, and that third party profiteers draw on the criminal element.

How can we possibly weigh the effectiveness, when some of our measurements' activities were not even enabled given the COVID situation?

Today, I'm not a conflationist and I don't want to remain polarized, but I demand consideration of the sex trade, sex industry, human trafficking, sex trafficking, labour trafficking, violence against women and girls, domestic violence, murdered and missing indigenous women, sexual exploitation and, as a witness already stated, the consideration of youth sex workers. Yes, consider them, but please consider them as child rape victims. Request more report consideration from the Canadian Centre for Child Protection and the National Center for Missing and Exploited Children as representatives of the visual, written and audio sex trade to actually and adequately represent everything, including the previous misrepresented data about jails, probation and parole.

Honourable Chair, what will be the report implications of our time in history? What will be the choices and the rights?

If we do not have a means to discover—

[Christa Big Canoe, Legal Advocacy Director, Aboriginal Legal Services]

Good afternoon, and thank you for inviting me to present to the committee. My name is Christa Big Canoe, and I'm the legal advocacy director of Aboriginal Legal Services. It is our position that the Protection of Communities and Exploited Persons Act is an end-demand legislation that is not effective, that it is not creating positive change, and that it increases harms and opportunities for violence against sex workers.

Given my limited time, I'm going to point to the Pivot Legal Society's “Evaluating Canada's Sex Work Laws: The Case for Repeal” as a good document that this committee is encouraged to read, review and seriously contemplate.

Stigma perpetrates conditions that have allowed predators to murder, rape and abuse sex workers with impunity. Police fail to investigate and prosecute these crimes when they involve indigenous women, girls and 2SLGBTQQIA+ community members. They are assumed to be sex workers. The National Inquiry into Missing and Murdered Indigenous Women and Girls heard this horrific narrative time and time again. Negative stereotypes about sex workers continue to have adverse impacts on the way indigenous women are portrayed, seen and treated. An example of this was apparent in R. v. Barton, in which Cindy Gladue was reduced to being referred to multiple times in court as a native prostitute, native girl and sex worker.

Disappeared and murdered indigenous women are often assumed to be sex workers or reported in the media as being sex workers. This belief, although erroneous on many occasions, results in less attention being paid when indigenous women go missing.

Laws prohibiting the exchange of sex for compensation between consenting adults are not the way to end violence against indigenous women or to address inequality and systemic poverty. The pervasiveness of these stereotypes and racism is so ingrained that the Supreme Court in Barton in 2019 had to instruct that:

[O]ur criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons—and in particular Indigenous women and sex workers—head on. Turning a blind eye to these biases, prejudices, and stereotypes is not an answer. Accordingly, as an additional safeguard going forward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls.

Sexual exploitation of indigenous women and girls and two-spirited community members occurs well before they decide to engage in sex work. Indigenous children who are apprehended into child protection services at alarming rates in this country often experience sexual exploitation. Addressing issues of poverty and inequity and decolonizing approaches to child welfare institutions is the leading way to reduce sexual exploitation that indigenous children in this country experience.

The acute mass incarceration of indigenous women in Canada's correctional institutes also demonstrates the high criminalization of indigenous women. Indigenous women now account for 42% of the women inmate population in Canada. Laws that further perpetuate stereotypes and distinguish groups such as sex workers are harmful, and overcriminalized populations are the ones that face the most scrutiny from authorities, even when it's not warranted.

The ban on purchasing sex directly impacts sex workers' safety and indigenous sex workers' safety, engaging the rights of liberty, life, and security of the person under section 7 of the charter, as well as section 15, the guarantee of equality under the law.

The court in Barton also reminded us of an important thing:

Our criminal justice system holds out a promise to all Canadians: everyone is equally entitled to the law's full protection and to be treated with dignity, humanity, and respect. Ms. Gladue was no exception. She was a mother, a daughter, a friend, and a member of her community. Her life mattered. She was valued. She was important. She was loved. Her status as an Indigenous woman who performed sex work did not change any of that in the slightest. But as these reasons show, the criminal justice system did not deliver on its promise to afford her the law's full protection, and as a result, it let her down—indeed, it let us all down.

We call for the repeal of PCEPA . It's unconstitutional and actively prevents people who sell or trade sexual services from enjoying their fundamental charter rights.

Like Pivot, Aboriginal Legal Services was an intervenor in the Bedford case before the Supreme Court of Canada. We intervened mainly because of the life and liberty risks that the Criminal Code provisions were creating for indigenous sex workers.

In July 2014 we also made submissions to this committee on Bill C-36. At the time, we objected to the passing of Bill C-36 because of the acute indigenous overrepresentation in the criminal justice and penal systems. This situation has only gotten worse in respect of those two issues.

The overall impact of the bill—