Bill C-36: The Protection of Communities and Exploited Persons Act*

What Happened

In 2013, the Supreme Court of Canada unanimously struck down Criminal Code provisions pertaining to some aspects of prostitution; solicitation, pimping and keeping bawdy houses.  At the time prostitution itself was not criminalized.  The Supreme Court determined that the challenged provisions of the Criminal Code violated prostitutes’ section 7 Charter rights to life and security of the person by putting them in harm’s way – by forcing them onto the street and prohibiting them from screening a client.  In response, the Conservative government introduced Bill C-36 in 2014 (the “Protection of Communities and Exploited Persons Act”), which was meant to prevent victimization of the seller.  However, the Bill was tabled and subsequently enacted without adequate consultation with stakeholders or the public. Critics of the Bill have expressed concerns that its criminalization of sex work again puts the seller in harm’s way.  Others believe that the Bill doesn’t go far enough to protect vulnerable women from harm, especially Indigenous women who are disproportionately victimized by sexual violence.

Despite the promises of some Liberal MPs and the Minister of Justice to review and consult on the changes introduced by Bill C-36, no action has been taken to date.

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* The terms used in the debates over Bill C-36, ‘prostitute’, ‘sex worker’ and ‘victim’, are highly politically charged.  'Sex worker’ is an attempt to attribute some of the dignity of ‘labour’ or the ‘proletariat’. Opponents see this term as a romanticization of exploitation.  Those on this side of the debate focus on systemic ‘victimization’ of the ‘prostitute’.  This case attempts to address the debate objectively and to pay attention to legislative and judicial language.

 

Background

Motivations for selling sexual services vary. For some, it can be a deliberate choice by those who see themselves not as victims in need of rescue but as workers who chose this work over other available means of income. For many others, it’s a last resort - a matter of economic survival.  In this category, members of marginalized communities such as Indigenous and other racialized women as well as members of the LGBTQ2S* community are over-represented.   

Canada’s Prostitution Reference case

Since the 1980s, prostitution has provoked fierce debates about appropriate legislative, political, and moral responses. In 1990, the Supreme Court of Canada considered the constitutionality of two Criminal Code provisions that prohibited communication for the purposes of engaging in prostitution and operating a “bawdy house”. The legal question was whether these provisions violated sections 2(b) and 7 of the Charter. Section 2(b) recognizes the right to freedom of expression while section 7 recognizes the right to be treated according to the principles of fundamental justice if one’s life, liberty or security of the person is jeopardized.

The majority of the Court held that the Criminal Code provision prohibiting the operation of a “bawdy house” did not infringe prostitutes’ Charter rights. The Court found an infringement of freedom of speech in respect to the provision against publicly communicating for the purpose of engaging in prostitution. This was found to be justifiable under section 1 of the Charter as its purpose (to address the “social nuisance” of the public display of the sale of sex) was seen as an acceptable and reasonable measure to express society’s disapproval of street solicitation.

Interestingly, the only two female justices on the Court dissented, finding that the Criminal Code provision limiting prostitutes’ ability to communicate with clients in public too broad and its consequences (i.e. incarceration) too severe to be justifiable infringements of the then lawful right to sell sexual services. These justices were also alone in their focus on how these provisions impacted the potential exploitation of prostitutes.

Since this reference case, there has been growing public concern in Canada about domestic and international human trafficking, prompting the federal government to take steps to address associated sexual trafficking exploitation. Though some critics such as Robyn Maynard argue that Canada’s anti-trafficking enforcement measures can have harmful effects on those they are meant to protect. This is largely because these measures to not address underlying conditions that give rise to sex trafficking in the first place, such as inequalities resulting from colonization, anti-sex-work laws, and racist immigration measures and programs.

Revisiting the question of Charter compliance in Canada: Canada (Attorney General) v Bedford

In 2007, Terri Jean Bedford, Amy Lebovitch, and Valerie Scott challenged the provisions in the Criminal Code that criminalized ancillary aspects of prostitution in Canada:

1) s. 210 (keeping or being found in a bawdy house);

2) s. 212(1)(j) (living on the avails of prostitution); and

3) s. 213(1)(c) (communicating in public for the purpose of prostitution). 

Their Charter challenge argued that while prostitution itself was not illegal, these three provisions criminalizing ancillary aspects put those engaging in a lawful activity in harm’s way by making it impossible to legally engage in sex work indoors. They provided evidence that street sex work was more dangerous and referred to the case of Robert Pickton, a serial killer who targeted street sex workers. The claimants also introduced evidence that s. 212(l)(j) of the Criminal Code effectively made it illegal for sex workers to take protective measures in their work such as hiring bodyguards or other help, and that s. 213(1)(c) effectively made it illegal to adequately screen clients.

In the trial level decision, Justice Himmel of the Ontario Superior Court of Justice struck down all three provisions, finding that they all adversely impacted safety and wellbeing and infringed section 7 Charter rights in a way that was unjustified in a free and democratic society.

The federal government appealed this decision and the Ontario Court of Appeal affirmed the trial decision with regard to the Criminal Code provision concerning “bawdy houses”. However, it found that the prohibition on living on the avails of prostitution should not be struck down, and directed the federal government to revise the wording of the law to make it more specific to preventing pimping in circumstances of exploitation. Finally, the Court reversed the trial decision concerning communication for the purposes of prostitution. The Court found that s.2(3)(1)c of the Criminal Code did not violate prostitutes’ section 7 Charter rights and that the law constituted a justifiable infringement on their 2(b) Charter right to freedom of expression.

The case was appealed to the Supreme Court of Canada.  Pivot Legal Society, as an intervenor, argued that prohibiting communication for the purposes of prostitution prevented sex workers from conducting basic safety measures, and that its purpose of preventing a public nuisance was insufficient to justify its real impacts, including the risk of serious harm to or death of marginalized women. The British Columbia Civil Liberties Association (BCCLA), another intervenor, seconded those concerns and argued that s.2(3)(1)c  was the only section in the Criminal Code targeting the expression of a particular group. They noted that it disproportionately affected the more vulnerable street workers as it permits them to engage in sex work on the streets, but not to verbally discuss consent or personal health and safety protections. Other local organizations representing those with experiences of sex work, amongst them Prostitutes of Ottawa/Gatineau Work and Educate and Resist (POWER), had tried to intervene in the Ontario decisions but were denied intervener status.The Native Women’s Association of Canada (NWAC) also intervened, arguing that all forms of prostitution were detrimental to Indigenous women, who are disproportionately represented amongst sex workers, and who are victimized and murdered while engaging in prostitution.  NWAC argued that the overall abolition of the purchase of sex was required in order to protect Indigenous women from sexual exploitation and violence.

The Supreme Court unanimously struck down all three Criminal Code provisions on the basis that they violate section 7 of the Charter’s right to fundamental justice when security of the person is jeopardized. The Court stated:The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks. (para 60)

More specifically, the Court found that the first criminal prohibition of keeping a common bawdy house jeopardized security of the person and was disproportionate. The Court held that barring prostitutes from access to fixed work locations prevented them from using other safeguards, such as the use of surveillance devices or hiring a security guard or receptionist. It found the prohibition also prevented prostitutes from using a safe house.

The Court found it unconstitutional to prevent a person from living wholly or in part on the avails of prostitution. While the federal government had argued that the purpose of this prohibition was to target pimps or others who effectively force others into prostitution in order to live off their earnings, the Court found that the prohibition was overly broad, because it potentially criminalized anyone who provides a service to a prostitute. For instance, it implied the interdiction of receiving rental payments from sex workers as landlords would be profiting indirectly from prostitution, which consequently increased the threat of homelessness amongst sex workers.

Finally, the Court held that prohibiting communicating for the purpose of prostitution prevented prostitutes from being able to screen clients. It also found that the prohibition had the dangerous effect of forcing prostitutes to move to more isolated areas to conduct their work. The Court held that the negative impact on security of the person violated the principles of fundamental justice was disproportionate to the provision’s objective to prevent public nuisances.

The claim that sex workers were excluded from policy debates

Sex workers and organizations representing them say they were largely excluded from public and government policy debates on appropriate state responses to sex work during the ongoing litigation in Bedford. In February 2008, the British Columbia Coalition of Experiential Communities (BCCEC), an organization that represents some sex workers in the province, attempted unsuccessfully to communicate with then Conservative Minister of Justice Rob Nicholson, regarding sex workers’ rights. Throughout the litigation at all levels of court, Minister Nicholson ignored the voices of sex workers and refused to review the Criminal Code provisions to better ensure the safety of sex workers.

In February 2011, BCCEC expressed concern to Susan O' Sullivan, the Federal Ombudsperson for the Victims of Crime, about the continued marginalization of sex workers’ perspectives in the National Strategy on Missing and Murdered Women. While O’Sullivan communicated these concerns to Ottawa, she stated that she was unable to act in any direct way because federal/provincial/territorial government actions were beyond her mandate. Again, in September 2011, the BCCEC contacted the Ombudsman expressing concerns about the exclusion of sex workers from policy debates.

Exclusion of Indigenous women from policy debates concerning sexual exploitation

In Canada, Indigenous women experience disproportionately high rates of violence and exploitation and are almost seven times more likely to be murdered than non-Indigenous women. NWAC advocated the abolition of prostitution, explaining, “[w]e want to stop the buying and pimping of our women. We want to stop the sale of human bodies. We want to be free from poverty and abuse that targets them for prostitution, and stop being blamed for prostitution”. The organization supported a model similar to that in Sweden which decriminalizes women who are prostituted, while criminalizing the purchase of sex and those who profit from the prostitution of women and girls. Contrary to the appellants in Bedford, NWAC opposed the decriminalization of sex work for fear that this would encourage sex trafficking and the exploitation of women, particularly Indigenous women and children. NWAC also opposed dividing women between those that “choose” sex work and those who are forced into prostitution as “it is the sex industry that encourages women to view prostitution as their chosen identity.” The organization argued that prostitution has been imposed on Indigenous communities as part of the continuum of colonial (male) dominance against Indigenous women and girls, resulting in thousands of cases of missing and murdered women, which have not been properly investigated nor have perpetrators been held accountable.

The Federal Government’s Response to Bedford

The Supreme Court of Canada granted the federal government one year to respond to the Bedford decision. On June 4, 2014, the government introduced Bill C-36, Protection of Communities and Exploited Persons Act. The Bill received Royal Assent on November 6, 2014 and came into force on December 6, 2014.

Hearings for Bill C-36

Prior to the Bill’s passage, the government held Parliamentary Justice Committee hearings on it. However, critics argued that these hearings were flawed, denying multiple stakeholders a fair and respectful hearing. After the Bill passed in the House of Commons, the BCCEC made a submission to a Senate Committee hearing on Bill C-36 in which it stressed the absence of sex workers’ participation at the Parliamentary hearings. The organization also petitioned the Senate to send the Bill back to the House of Commons to be amended, or withdrawn. In particular, BCCEC argued:

In our view, the Parliamentary Justice Committee hearings replicated the Conservative government’s longstanding exclusionary attitudes toward sex workers. At the hearings, sex workers testifying were mocked, belittled, laughed at, and their testimony was not taken seriously. Members of the audience heckled them while the Conservative Committee Chair did nothing to stop that behavior to ensure sex workers voices were fairly included or to ensure they felt safe giving their testimony. Generally, Conservative committee members asked no questions of those who opposed the Bill – clearly demonstrating they had no interest in including all relevant perspectives and evidence on the issue. In one extremely inappropriate comment Conservative MP Stella Ambler went so far as to tell a witness her experiences sounded like a ‘surreal sitcom’. (p 8)

The exclusion of sex workers’ voices from these Parliamentary Justice Committee hearings included to those of varying gender identities. The Conservative government did not acknowledge the existence of male and transgender sex workers and consequently left their realities unexamined. 

Bill C-36: Protection of Communities and Exploited Persons Act

The preamble to the Protection of Communities and Exploited Persons Act recognizes and expresses concern about exploitation, including the objectification of the human body. It also affirms the importance of protecting the human dignity and equality of all Canadians.

The Bill creates offences that prohibit purchasing sexual services, knowingly receiving a material benefit from sexual services, advertising sexual services and 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 center.

The Canadian Civil Liberties Association (CCLA) has argued that Bill C-36 exacerbates rather than relieves any of the failures of the Criminal Code to protect those engaged in sex work. According to the CCLA, the Bill made it more difficult for sex workers to properly identify their clients and to work in safe environments. The creation of a total ban on communication prevents sex workers from being able to properly assess their clients’ levels of intoxication or predisposition to violence. Furthermore, the offence of knowingly receiving a material benefit from sexual services was drafted in an overly broad language and is not limited to specifically criminalizing pimping, which was its initial purpose. The Bill’s broad language, like the Criminal Code provisions previously struck down, could also criminalize people for helping or protecting sex workers, such as landlords, drivers, bodyguards, nurses, and assistants.

BCCEC was skeptical of the Bill’s claim to protect children and youth and argued that there were already laws in place to protect minors from sexual exploitation. Additionally, BCCEC insisted that the Bill’s focus on trafficking was unnecessary as there already were existing laws to protect individuals from being trafficked for the purpose of sexual exploitation.

While Bill C-36 intended to address the issue of violence against Indigenous women, it was not drafted in consultation with women or organizations such as NWAC and therefore fails to address underlying causes of Indigenous women’s vulnerability. They face race, class and gender discrimination. For instance, while the Bill addresses exploitation and trafficking by buyers, it ignores the fact, that many Indigenous women and girls have experienced racism-related abuse and intimidation by police forces, as recent events in Val d’Or made apparent. The most vulnerable women engaging in survival sex work also do not profit from provisions which would allow them to work indoors in bawdy houses or massage parlors. They remain on the streets without access to safe houses. Other organizations representing sex workers have also argued that legalizing prostitution, rather than Bill C-36’s criminalization of prostitution, would make it easier for sex workers to prescreen their clients prior to any engagement.

Many feminist organizations involved in the debate noted that any legislation aimed at protecting survival sex workers (many or most of whom are Indigenous, racialized, trans, Two-Spirited and/or street-based workers) must be accompanied by funding to address persistent root causes which underlie this work, such as poverty, racism, sexism and colonialism. They also advocated for more training of police officers and legal professionals working in this area of law. However, Bill C-36 does not include any reference to ancillary measures to prevent marginalized women from having to resort to survival sex work due to a lack of other options.

The Liberal Government’s Position on Bill C-36

In 2014, the Liberals stated that they would not support the Bill. While the issue did not figure in the Liberals’ 2015 campaign platform, several Liberal candidates suggested that their government would revoke Bill C-36 and legalize prostitution.

In September 2015, at the “Proud to Vote” debate, NDP, Liberal, and Green representatives noted that they favoured repealing Bill C-36. However, Prime Minister Justin Trudeau did not include this topic in his mandate letter to Justice Minister Jody Wilson-Raybould. Nevertheless, Minister Wilson-Raybould has since promised to review the Bill and to consult sex workers on any changes. Many hoped she, as a female Indigenous Justice Minister, would properly address the various realities that Indigenous and non-Indigenous women face engaged in sex work. However, to date, there does not appear to be any plan for doing so.

During the 2015 federal election, several organizations including Pivot Legal Society, the Canadian HIV/AIDS Legal Network and Migrant Sex Workers Project sent an open letter to all party leaders, requesting the repeal of the Bill.  Since then, several women’s, Indigenous and other organizations representing sex workers have separately continued to push the federal Liberal government to repeal the Protection of Communities and Exploited Persons Act. The argument is that, as in any other industry, sex workers are very diverse, have different backgrounds and live in very diverse milieus. Some sex workers support the legalisation of prostitution, to be able to pre-screen clients from home in advance or to use bawdy houses, as well as employ security personnel. Other organizations, however, argue that only a total ban on the purchase of sex would effectively decrease chances of victimization.  Additionally, most organizations agree on the need for the government to address the underlying causes of violence and abuse, such as sexism, racism and poverty.  Even though the standpoints on decriminalizing or abolishing prostitution may differ amongst organizations, all share the viewpoint that their voices have not been properly heard, either during the Bedford proceedings or during hearings on Bill-36.

Relevant Dates

  • 1990: Prostitution Reference case is decided by the Supreme Court of Canada
  • 2007: Terri Jean Bedford, Amy Lebovitch, and Valerie Scott initiate a court case in Ontario to challenge the constitutionality of three provisions of the Criminal Code of Canada pertaining to prostitution.
  • 2013: In the Bedford decision, the Supreme Court of Canada unanimously strikes down the provisions criminalizing ancillary aspects of prostitution on the basis that they violate section 7 of the Charter.
  • 2014: Sex workers and advocates of abolition are excluded from the Parliamentary Justice Committee hearings that are meant to inform government responses to Bedford. Those allowed to participate are treated with disrespect. 
  • 2014: Bill C-36 (Protection of Communities and Exploited Persons Act) comes into force, soon after it is first introduced in Parliament. The Liberals refuse to support it.
  • 2015: During the federal election, several Liberal candidates suggest that their government would revoke Bill C-36 and legalize prostitution.
  • 2015: After the Liberals are elected, Minister of Justice Jody Wilson-Raybould promises to revisit the Protection of Communities and Exploited Persons Act and consult about appropriate legislative reforms.  She has yet to follow up on her promise.

Implications and Consequences

Equality: The Protection of Communities and Exploited Persons Act disproportionately endangers economically marginalized, racialized, and sexualized individuals facing multiple barriers.

Rule of Law: The Protection of Communities and Exploited Persons Act largely disregards the Supreme Court of Canada’s judgment in Bedford as it enacts substantially similar prohibitions to those that were found by the court to be unconstitutional. 

Participation and Democracy: A basic principle of democracy is that people should be consulted and have their voices heard regarding the laws that affect them. The Parliamentary procedures and hearings held on Bill C-36 were problematic due to the inadequate representation of advocates on both sides of the debate and the disrespect with which some were treated at committee hearings. The discriminatory attitude of certain politicians participating in the process was epitomized by Conservative MP Stella Ambler’s statement that one sex worker’s experience sounded like a “surreal sitcom”. 

Freedom of Expression: the provisions in the Protection of Communities and Exploited Persons Act limiting communications with potential clients infringes on their right to freedom of expression. Further, limiting their involvement in the hearings to inform the development of laws designed to protect them, disparage their voices and infringes their freedom of expression.

Date Published: December 17, 2017

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