Monday, July 21, 2014

A Special issue of Communiqué on Bill C-36

July 21, 2014 -- compiled by Bill Maher of Smart Justice Network

In case you were wondering about Bill C-36 and the issues it raises… As the bill moves through, many still have unanswered questions and perhaps some confusion around who thinks what and why. Here is just a modest attempt to pull together some links you may want to check out. We are pleased to offer first a reflection by distinguished jurist George Thomson as a centering piece for both the links and your thoughtful consideration. 

George Thomson on C-36

Here is how I think about the issue and the government’s new law. My understanding of that law is that it does not criminalize the practice and it allows prostitutes to advertise their service (more easily now with the amendments just introduced). However it does make it a crime to buy the services of a prostitute. I think it also maintains the prohibition against living off the avails of prostitution, although I think it permits prostitutes to have security services to some degree. In addition the criminal code provisions that would punish such activities as underage sex, sex tourism, sex trafficking, pornography etc. continue, and I think are strengthened in some ways. Finally there is modest funding set aside to assist in helping, persuading prostitutes to move away from the practice.

I think we all agree that prostitution is a high-risk, damaging choice and that many who enter the business are forced to do so for a variety of reasons. We likely all support the many positive things that can be done to enable persons to make other choices or to assist them to move out of the profession. The government has set aside some funds to support these measures although almost everyone agrees that the amount is not nearly enough if they are serious about this. More than that, I don’t think anyone thinks this will somehow bring the practice an end (although some of the things being said by the Minister of Justice seem to imply it will over time).

I think we also agree that the answer is not to turn prostitutes into criminals by making the practice a crime. This is important because we are therefore talking about how far you can go to deal with or regulate what is otherwise a perfectly legal activity. This is the challenge that the Supreme Court faced when considering the present law, which focused on the ways in which the practice created a major nuisance, interfered with residential neighbourhoods etc. The Court said this was a legitimate objective but that objective could be outweighed by concerns that the way the objective was achieved placed the prostitute at serious risk. In the Court’s view (bolstered by strong evidence about the risks women were running to avoid the prohibited behaviour or to avoid detection-see Picton etc.) the present law failed the test.

In my opinion, once you accept that it is simply wrong to make prostitutes criminals, this is the test to be applied: does the new law and its objective (which is now I think to protect and “save” those who have entered the profession for whatever reason) sufficiently manage the potential risk or harm to the prostitute that it no longer fails the test. By allowing them to advertise and offer their services from a specific location with whatever protections they need to be as safe as possible, the new law certainly does better than the last one.

However the law makes it a crime to buy the advertised services-and the way the prostitute is able to locate her place of operation (not in a brothel as I understand it) makes it clear where the services are being delivered and who is delivering them. It seems obvious to me that, unless the police announce they won’t be charging clients who come to these private locations, those clients will stay away and the prostitutes will be driven back to the less visible but much riskier places their clients will be prepared to come to. In other words, the risks to them will be just as great and I can’t see how the Supreme Court could uphold this law.

It may be I am missing something here and the experience in other jurisdictions demonstrates this. I also recognize the challenge this is for government, given the right decision not to make it a crime. However, I simply do not believe the new law will somehow bring prostitution to an end and I can’t see how particularly the most vulnerable prostitutes will be made safer by it.

I believe the opposition should concentrate on the safety issue, rather than pressing for either legalization or criminalization of prostitution. In other words, start from the position that the law does not make the behaviour illegal and so there is an obligation to reduce the risk to the prostitute while investing heavily in services to assist prostitutes (both those who remain in the profession and those who can be helped to leave it). For myself, I lean towards something like the New Zealand model which seems to achieve much greater safety and health for those who engage in a practice that is not going to disappear. However, that is not a position that one needs to take to respond to the present bill before Parliament.

Communiqué Links on the issues raised by C-36

Ed note:

1. The links go backward from July 20, 2014 to the SCC ruling in Dec 2013.

2. These are all the links we have offered our readers over the past 9 months on prostitution and Bill C-36. The more recent ones are at the top of the list. 

3. The latest version of Bill C-36 needs to be linked as well. There were several amendments from the original bill. I was unable to find an update at this time. The link to SCC ruling prompting the new law is found on p. 12 (Dec. 21, 2013).

4. The positions of E. Fry, the Evangelical Fellowship of Canada, the Canadian Council of Churches, the Native Women Association of Canada, Canadian Association of Sexual Assault Centres are all together at the end of the media reporting. 

5. As usually, updates as they develop will be found in the communiqué .

6. Note that there is an article on the topic of prostitution by Don Lenihan, the new Policy Engagement Process specialist who is heading the Ontario Open Government Initiative. (cf p. 7 – June 21, 2014)

7. There is a section on the New Zealand Prostitution Law reform of 2003 and a government assessment review from 2012 starting on p. 12. They have decriminalized prostitution. 

July 20 

Globe and Mail - Tabatha Southey

To Harper, a ‘majority’ (on sex) is not always a majority (on marijuana)

Southey is looking for consistency in the decision making prompted by the federal government polling, once released or discovered. (Polls outsourced to survey companies are routinely released but if internal to government polls may be kept secret until other sources reveal them.) A bare majority seem to support the prostitution laws (51.2%) but over 70% (70.7%) favour less severe marijuana laws. While we may not want to be governed by opinion polls, we may want to have the opinions found in the professionally researched polls aired honestly and accurately in the legislative process. 

 Related article: Globe and Mail - Emma M. Woolley New prostitution law could force sex workers off the Internet 

 Related article: Globe and Mail Editorial (July 15, 2014) That new prostitution bill? It’s still worse than the old law

July 17

National Post - John Ivison

Prostitutes back off exposing Conservative clients despite ‘palpable’ hypocrisy over C-36 

Ivison suggests that the hypocrisy around C-36 on Parliament Hill was “palpable” as the hearings progressed and the question of which MP’s are known clients of Ottawa’s sex trade. POWER (Prostitutes of Ottawa/Gatineau Work, Educate and Resist) representative Frederique Chabot and Emily Symons, chair of POWER, conceded the temptation to name names but also insisted that “the only time clients would be outed is to protect other sex workers.” 

Related article: 
 Toronto Star – Alex Boutillier and Tonda MacCharles - Secret poll shows Canadians deeply divided on prostitution approach

July 16

Globe and Mail – Josh Wingrove 

Tories soften prostitution bill provision by expanding legal discussion areas 

The Globe and Mail is reporting that the federal government will change the key provision of the new prostitution bill (C-36) by eliminating the provision that one may not discuss the sale of sex anywhere a young person could be expected to be found. The new version limits the sale of sex talk to at, or near, a school, playground or daycare. 

Related article: CBC News – Kady O’Malley Prostitution bill's fate unclear as committee begins final review

Related article: CBC News - Julian Sher Prostitution not an equal crime for men and women

Related article: Toronto Star – Kimberley Potter Tories' moral stand puts prostitutes in danger

Related article: Kitchener-Waterloo Record - Liz Monteiro Prostitution is one name, human trafficking is another

Related article: Toronto Star - Tonda MacCharles Prostitution bill hearings had strong evangelical voice

Related article: CBC News – Kady O’Malley Analysis: Prostitution bill critics treated as hostile witnesses at committee

Related article: Globe and Mail - Terri-Jean Bedford As a former sex worker, I am sure the Conservative bill will fail

Domestic violence:

Thomson Reuters Foundation

Domestic violence 

This link is for a number of articles that look around the world at domestic violence. The link includes a first ever survey of the EU countries – interviews with 42,000 women - and a comparison chart of rates of domestic violence. There are commentaries on the Nordic countries (highest rate) and on Italy, Greece, England, Afghan.

July 9

National Newswatch – Mike Blanchfield, Canadian Press

$20M paltry for prostitutes, hearings told 

The number revealed by the federal government to assist prostitutes to leave the practice is in fact a five year figure and to be split between the various provincial jurisdictions in Canada. That revelation effectively says there is little or no help intended to help MacKay’s aspirational goal of ending prostitution in Canada. "From our perspective, $20 million is peanuts," said Michele Audette, president of the Native Women's Association of Canada, a sentiment echoed by Calgary Police Chief Rick Hansen. Hansen thinks that Calgary’s share would be $125,000 and called it “woefully inadequate.”

Related article: CBC News - Laura Peyton Prostitution laws: 7 voices from the field - Former sex workers, advocates, lawyers tell their stories to MPs on justice committee this week

Related article: Toronto Star – Tim Harper Peter MacKay’s utopian goal obscures prostitution reality

July 8

National Newswatch: Mike Blanchfield, Canadian Press

Swan to Harper: don’t criminalize prostitutes

Amid concessions from Peter MacKay that the new prostitution laws will likely go to the SCC, the Manitoba Attorney General is looking for a whole section dealing with prostitutions communicating for the purposes to be deleted from the bill.

Related article: Canadian Press – Mike Blanchfield MacKay first witness as marathon prostitution bill hearings begin Monday

Related article: CTV News Prostitution bill 'offends' the Charter, legal experts say

Related article: CBC News Former sex workers make their cases in prostitution bill debate

July 7 

CTV News

Prostitution hearings prompt special summer parliament session 

Monday, July 7, will see a special meeting of the House Justice Committee for hearings on the prostitution bill, the replacement for the one struck down by the SCC. There are some 60 witnesses to be heard over 20 hours – the hearing closes on Thursday morning - creating a very pressed opportunity at best. Minister Peter MacKay will not accept delay or postponement, or a request to the SCC for an extension on the December time limit. Related article: CBC News- Canadian Press Peter MacKay open to amendments to proposed prostitution law

June 30 

Centre for Crime and Justice Studies (UK)

Justice Matters: lifting the lid on Pandora’s box 

This link is especially focused on the criminalization of women and children in the justice system, a claim that the prison system delivers as much social injustice in the present formulation, the researchers say. The site is also pre-occupied with alternatives. The link is for the newsletter of the group and offers access to other themes. For more UK articles around women: Centre for Crime and Justice Studies E-Bulletin:

June 15

Related article: CTV News Sex workers rally across Canada to protest prostitution legislation

June 12 

Canadian Law Times - Richard Cleroux

The Hill: Harper ignores Supreme Court in new prostitution law 

Cleroux says that the biggest critics of this new bill on prostitution are the very women it supposedly protects but worse still, the legislation does not take directions from the previous SSC directions about what the court wanted fixed in any new legislation.

June 11 

Globe and Mail – Campbell Scott 

Canadian prostitution laws a no-win, poll shows

An Angus Reid poll for the Globe and Mail is suggesting that Canadians are not, in fact, opposed to legalizing prostitution, either the buying or the selling of sex. When the numbers break down, there is a gender divide but there is also a wide political gap which says that no one can win politically. Likewise, there is every likelihood that the new law would be challenged constitutionally and for compliance with the SCC directives for correction.

Related article: Toronto Star – Heather Mallick Why did prostitution bill go off the rails?: Mallick

Related article: Globe and Mail Christine Wilson Trust me, this prostitution law won’t help hookers

June 9 

Vancouver Sun - Daphne Bramham
The government’s failed attempt to address prostitution 

Bramham traces the Canadian version of the Nordic model through the various incarnations in Sweden, Norway, Iceland andFrance, identifying the author of the legislation as a BC lawyer - Gunilla Ekberg. The Canadian version, she says, takes cues from the Swedish but fails in the core purpose in providing a law “that would reduce the risk of harm.”

June 7 

National Newswatch – Don Lenihan
Prostitution and the politics of justice 

Lenihan, and most experts agree that the new prostitution laws will wind up challenged in court and that Peter Mackay known the laws will not pass muster. Some think the laws are about the supremacy of parliament over judges. Lenihan thinks the laws are about politics, about posturing, not principles nor justice, and that the government is content let someone else eventually clean up their mess. MacKay continues to refuse to release a second and adverse poll after a first survey with what Lenihan thinks were loaded questions.

Related article: National Post – John Ivison Harper pitched new prostitution bill to caucus as a compromise despite staunch social conservative opposition

Related article: – Paula Simons, Edmonton Journal ‘It’s going to be a disaster’ — Peter MacKay’s proposed prostitution law defies the court and common sense

Related article: Globe and Mail - Margaret Wente Who really speaks for sex workers?

Toronto Star – Editorial

Ottawa’s crackdown on the sex trade fails the victims

The effect of the new proposed prostitution law (Bill C-36) will be to endanger sex workers even more than before and to make the sale of sex in a public place illegal. Calling the response to the SCC’s objections to the old laws “boneheaded,” the Star quotes Katerina Pacey, a Vancouver lawyer for Pivot Legal Society : All this will have a “devastating impact on sex workers’ safety. More women will end up working in the shadows, be slapped into jail, go missing or be murdered.” Critics suggest that unless the government refers the law for prior ruling to the SCC, the matter is likely to wind its way through lower courts and then back to the SCC.

Related article: Toronto Star – Tonda MacCharles NDP joins call for Tories to refer prostitution bill to Supreme Court

Related article: Globe and Mail - Anqi Shen 8 arrested on human trafficking charges.

June 5 

CBC News – Daniel Schwartz

Sex workers like New Zealand law, not Canada’s new ‘Nordic model’ for prostitution 

The new prostitution laws have been borrowed from the Nordic model but sex workers themselves say that the model used inNew Zealand offers more protection. Schwartz paints the picture of prostitution laws in Spain and Germany as well and the link offers video commentaries by Canadian sources, including a 3 minute video report from Calgary. There is a 7 minute interview (on the sidebar) with Vancouver lawyer Katrina Pacey as well.

June 4 

CBC News – Susanna Mas

Prostitution bill would make it illegal to buy, sell sex in public

Peter MacKay started his press conference saying that for the first time prostitution is illegal in Canada. Supposedly intended to crack down on primps and johns, so called third parties, critics say the specifics of the bill will make matters worse for the safety of the sex trade workers and will likely drive the encounters deeper underground. The bill defines spaces where the prostitute could be charged and also defines age as a basis for charges. Likewise advertizing sex for sale will be illegal, in print or on line. The federal government will provide $20 million to help sex workers exit the profession. (Includes the 22 minute press conference video)

Actual Bill: C-36 The Protection of Communities and Vulnerable Persons Act 

Related article: Power and Politics – Evan Solomon Interviews with Support workers and MP’s

Related article: - Peter O’Neill, Vancouver Sun Ottawa rejects B.C. study showing its new policy will harm sex workers - Report backs international research saying laws targeting 'johns' hurt sex trade workers 

Related article: CBC News – Canadian Press Vancouver sex trade policy a model for what not to do across Canada: advocates

May 22 

Globe and Mail – Angela Campbell 

For sex workers, the Nordic model still falls short 

The federal government intends shortly to introduce a replacement for the prostitution laws on the books – the Court gave a year to accomplish the change. Campbell, a professor at McGill’s law faculty, has some reservations about the adoption of the Nordic model in which the prostitutes become victims rather than offenders. The weakness, she says, is the lack of safety and security for the sex workers.

March 4 

Ottawa Citizen – Kate Heartfield

Rethinking Canada’s prostitution laws

The Supreme Court has given the Canada one year to re-write Canada’s criminal code dealing with prostitution, laws that do not put sex workers in danger. This article looks at language, the Nordic model, and the philosophy at play in the options available.

Feb. 4 

Toronto Star

New prostitution laws to be introduced before December deadline

Federal Minister of Justice Peter MacKay says that the new legislation around prostitution will be ready well before the December 2014 deadline, even though there needs be consultation with the provinces.

Jan 28

CBC News

Peter MacKay faces balancing act with justice agenda, court rulings

At least two legal matters will deter the federal government from the economic agenda, not counting the present struggle with discretion for judges over the Truth in Sentencing Act. The revision of the prostitution laws and the assisted suicide laws may together prove a hindrance for this session of the House. Victims rights is another concern if it is pursue matters other than harsher sentencing for those convicted of violent crime.

Jan 22 

CBC News

Girl accused in teen prostitution trial gets maximum sentence

In the case of three Ottawa girls who managed a human trafficking and prostitution ring, the first juvenile and the youngest of the three, sentenced has received the maximum allowable under the juvenile code.

Dec 21, 2013 

CBC News

Supreme Court ruling forces prostitution policy onto Harper’s agenda

At the very least, the ruling by the Supreme Court striking down the three prostitution laws and giving government one year to pass alternate legislation will cause a dent in the intended use of time and energy for the next parliament. Simply allowing these laws to lapse does not appear an option for the Conservative government.

Related article: CBC News – Canada’s prostitution laws: What the court said

New Zealand Prostitution Laws

Prostitution Reform Act 2003 

Cf in particular Part 2, sections 7-11

New Zealand Parliament

Prostitution law reform in New Zealand (2012)

A 2012 government review of the Prostitution Laws of 2003. 

Toronto Star (March 18, 2014) - Emily van der Meulen Elya M. Durisin Victoria Love 

Star Phoenix (Regina) - Betty Ann Adam 

Sex trade safer in New Zealand - and legal 

June 16, 2013

Elizabeth Fry (Canadian Association of Elizabeth Fry Societies
Press Release: March 24, 2014

Women are not for Sale

Press Release: (Dec 13, 2013)
Equality-Seeking Women’s Groups continue to demand a Change in Prostitution Laws 

Other sources:

Evangelical Fellowship of Canada

The EFC Responds to Bill C-36 

Submission to the House of Commons Standing Committee on Justice and Human Rights

Reforming Canada’s Prostitution Laws: Response to Proposed New Laws (2014) 

Canadian Council of Churches (CCC)
Human Trafficking in Canada Working Group Brief
Protection of Communities and Exploited Persons Act
Standing Committee on Justice and Human Rights, Parliament of Canada 

Recommendations on Bill C-36 to Parliament Committee on Justice and Human Rights

Native Women's Association of Canada 

New Prostitution Law begins to recognize the Harm in Prostitution 

Canadian Association of Sexual Assault Centres

In Committee from the House of Commons – July 10, 2014

The committee resumes its hearings on the federal government’s proposed prostitution legislation (C-36). MPs hear fromCanadian Association of Sexual Assault Centres representatives Lisa Steacy and Mélanie Sarroino; Rachel Phillips and Natasha Potvin from the Peers Victoria Resource Society; Kate Quinn from the Centre to End All Sexual Exploitation; Glendyne Gerrard representing Defend Dignity, The Christian and Missionary Alliance; and Marina Giacomin with theServants Anonymous Society of Calgary. (July 10, 2014)