Hon. Peter MacKay (Minister of Justice and Attorney General of Canada, CPC)
moved that Bill C-36, an act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other acts, be read the second time and referred to a committee.
He said: Mr. Speaker, I am pleased to commence the second reading debate on Bill C-36, the protection of communities and exploited persons act, a comprehensive and compassionate Canadian response to the Supreme Court decision in Bedford.
It may come as a surprise to some, but to put this in context, in current Canadian law, neither the sale nor the purchase of sexual services is illegal. That would be known to many in the chamber who are police officers or former police officers, many of whom are joining us for this debate.
It is well known to the member for Kildonan—St. Paul, who has dedicated much of her life to helping those who find themselves in prostitution, and I want to express appreciation for that work.
The existing criminal offences prohibit activities related to prostitution. This bill is in direct response to the Supreme Court of Canada's Bedford decision, on December 20, 2013, which found three of the prostitution-related offences unconstitutional, based upon the court's view that the offences prevent those who sell sexual services from taking measures to protect themselves when engaged in prostitution, which I think can fairly be described as a risky, but previously legal, activity.
That would change, as a result of the bill, in terms of its legality. It was a key consideration for the government's response.
The Supreme Court was clear. Its decision does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted.
Significantly, the court recognized not only the complexity of the issue but also the ability of the government to legislate. I am quoting from the decision, at paragraph 165, which states:
|| The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting the different elements of the existing regime.
Bill C-36 would do just that. It is a brand new approach, one that would transform Canada's criminal provisions of prostitution laws. It is a new approach based upon the prevailing thinking in modern industrialized countries.
Bill C-36 proposes law reform that would signal a significant shift in prostitution-related criminal law policy from treatment of prostitution as a nuisance toward treatment of prostitution for what it is: a form of exploitation.
This is not a life from a Hollywood movie, portrayed in movies like Pretty Woman. It is an inherently dangerous pursuit, often driven by factors such as violence, addiction, poverty, intimidation, and mental illness. These are very often the most marginalized and victimized of our citizens, vulnerable Canadians, often aboriginal, new Canadians, brought into a life of prostitution at a very early age and most often through no fault of their own.
The bill is about protecting vulnerable Canadians, as encapsulated in the title.
Let us be clear: we do not believe that other approaches, such as decriminalization or legalization, could make prostitution a safe activity.
The evidence, including the evidence submitted to the courts in the Bedford case, shows that prostitution is extremely dangerous no matter where it takes place. It also proves that decriminalization and legalization lead to increased human trafficking for the purpose of sexual exploitation. Failing to ensure the consistent application of criminal law to the wrongful acts of prostitution is simply not an option.
The Supreme Court gave Parliament one year to respond to its findings in Bedford. We have introduced Bill C-36 well ahead of time to ensure that the court's ruling does not result in decriminalization, and to have even greater opportunity to examine legislation, and to ensure that even greater harm to vulnerable persons, particularly women and children, does not follow.
For the first time in Canadian criminal law, the bill would criminalize the purchase of sexual services; in other words, it would now make prostitution illegal.
The impact of the new prohibitions would be borne predominantly by those who purchase sex and persons who exploit others through prostitution. The bill is intended to reduce the demands for prostitution, which disproportionately impact on society's most marginalized and vulnerable.
The bill would also modernize existing procuring offences, to ensure that those who exploit others through prostitution are held to account for capitalizing on the demand created by purchasers.
These reforms are informed by new, contemporary legislative measures outlined in the bill's preamble, which include protecting communities and those who are exploited through prostitution from prostitution's implicit harms, which include sexual exploitation, the risk of violence and intimidation, exposure of children to the sale of sex as a commodity, and related criminal activities such as human trafficking and drug-related and organized crime.
Also in the preamble is recognizing the social harm caused by prostitution's normalization of sexual activity as a commodity to be bought and sold; and protecting the human dignity and equality of all by discouraging prostitution, which we know disproportionately impacts women and children.
Bill C-36 proposes two entirely new offences, which I would submit differentiates it from other models as a distinctly Canadian approach: purchasing sexual services and advertising the sale of sexual services. Both are hybrid offences with maximum penalties of 5 years on indictment and 18 months on summary conviction. The purchasing offence would also carry mandatory minimum fines.
The purchasing offence targets the demand for prostitution, thereby making prostitution an illegal activity, and to complement this offence, the advertising offence targets the promotion of this exploitative activity, thereby furthering the legislation's overall objective of reducing the demand for sexual services.
An additional objective is to reduce the likelihood of third parties facilitating exploitation through prostitution for their gain, and the key and operative word here is “exploitation”. Consistent with the bill's treatment of persons who sell their own sexual services as victims, the persons would be immunized from prosecution if they advertised their own sexual services.
Never before have these activities been criminalized in Canadian law, and the bill would also criminalize receiving a financial or material benefit, knowing that it was obtained by or derived from the prostitution of others. This offence replaces the existing offence of living on the avails of prostitution, struck down by the Supreme Court.
The proposed approach has been carefully tailored to address the specific vulnerability of those involved. The material benefit offence strikes a careful balance and ensures that those who sell their own sexual services have the same ability to interact with others as anyone else, while also recognizing the dangers, harms, and risks involved in allowing the development of economic interests in others' prostitution.
Legislated exceptions clarify that the offence does not apply to non-exploitative relationships. For example, those who are in legitimate living arrangements with persons who sell their own sexual services, such as children, spouses, or roommates, would not be caught under these sections. Neither would those who offered goods or services to the general public, such as accountants, taxi drivers, or security companies. Moreover, the material benefit offence would not apply to those who offered goods or services on an informal basis, which could include such things as babysitting or even protective services.
To be clear, Bill C-36 also recognizes the risks associated with allowing persons to benefit from the profits of others' prostitution. A person who initially poses as a benevolent helper may become unscrupulous in order to maximize profits that are contingent on the provision of sexual services for others. We know this happens. For that reason, the bill stipulates that none of the exceptions to the material benefit apply where the person who received the benefit engaged in coercive measures, such as using violence or intimidation, abusing a position of trust or power, or engaging in conduct that amounts to procuring or receiving a benefit in the context of a brothel.
This approach affords some room for sellers of their own sexual services to take steps to protect themselves in response to the concerns raised by Supreme Court of Canada in Bedford, while also ensuring that the criminal law holds to account the pimps or anyone else in an exploitative relationship, working through prostitution.
The bill also proposes to modernize existing procuring and child prostitution offences. The proposed procuring offence reformulates existing offences with respect to procurement—paragraphs 212(1)(a) to (i)—to ensure consistency with the new material benefit and purchasing offences.
Procuring, as we know, is a serious offence that involves inciting or causing others to sell sexual services. That is why this legislation proposes to increase the maximum penalty to 14 years from 10 years imprisonment.
Bill C-36 modernizes and reformulates child prostitution offences as aggravating forms of offences related to the purchase of sexual services, receiving a material benefit and procuring. In addition, it increases the applicable sentences. The maximum penalty for the offence prohibiting the purchase of sexual services from children would increase to 10 years imprisonment from the current five, and the mandatory minimum would increase from six months to one year for repeat offenders.
Offences related to receiving a material benefit and procuring involving children would have a maximum sentence of 40 years and a mandatory minimum of two and five years, respectively.
Moreover, through these amendments, the government would send a clear message to those who exploit vulnerable persons and, in particular, inflict trauma and revictimization on women and children.
All of the offences that I have just described comprehensively address the exploitative conduct engaged in by those who create the demand for sexual services and those who capitalize on that demand.
Bill C-36 does not stop there. It recognizes and addresses the harms that prostitution also causes to communities. It would achieve this objective in two ways. It would impose higher mandatory minimum fines for purchasers if they commit the purchasing offence in public places that are near schools, parks, religious institutions, or places where children can reasonably be expected to be present. This is the same description found in the Criminal Code in other sections. There is an already well subscribed definition of a public place. This approach would also provide an additional measure of protection to those who are vulnerable in our communities.
The bill would also comprehensively protect children from exposure to the sale of sex as a commodity. In that regard, it proposes a new summary offence that would criminalize communicating for the purpose of selling sexual services in public places where children can reasonably be expected to be present.
The bill recognizes the vulnerability of those who sell their own sexual services by immunizing them from prosecution for any part they may play in the purchasing, material benefit, procuring, or advertising offences vis-à-vis their own sexual services.
As I mentioned, children, on balance when doing the calculation, can also be considered vulnerable, so the bill seeks to strike that careful balance, part of that being the provision of a tool that would allow law enforcement to ensure that children are not harmed through exposure to prostitution. Parents in particular will be relieved to hear this.
The bill also proposes related amendments that would complement its approach to prostitution. First, with the definition of a weapon, this part of the Criminal Code has been somewhat overlooked in the public debate on this legislation. This section is intended to ensure that offenders who possess weapons of restraint, such as handcuffs, rope, or duct tape, with the intent to commit an offence, or use such weapons to commit a violent offence, are held accountable. I suspect that much of the focus on this stems from the horrific circumstances that we know occurred in the Picton case in British Columbia.
This amendment has implications for three offences: possession of weapon for dangerous purpose, section 88; assault with a weapon, section 290; and sexual assault with a weapon, section 291. This approach will better protect all of the victims of these offences, including those suffering from extreme exploitation as prostitutes, who are particularly vulnerable to sexual assault and assault.
Bill C-36 would also ensure consistency of penalties between human trafficking offences and the proposed prostitution ones. We know that prostitution and human trafficking are related criminal activities. It follows that the penalties for both should reflect the severity of that conduct. That is why this bill proposes to increase the maximum penalties and impose mandatory minimum penalties for receiving a material benefit from child trafficking and withholding documents for the purposes of committing child trafficking. The maximum penalty for both child-specific trafficking and prostitution material benefit would be 14 years of imprisonment, with a mandatory minimum penalty of two years. The maximum penalty for withholding documents for the purpose of committing child trafficking would increase to 10 years, with a mandatory minimum sentence of a year.
The bill would also amend the offence prohibiting trafficking in persons to impose mandatory minimum penalties when the victim is an adult. The mandatory minimum penalty would be five years if the offences involved kidnapping, aggravated assault, sexual assault, or caused death, and four years in all other cases. The offence prohibiting trafficking of children already includes mandatory minimum penalties.
These are reforms proposed by this bill, but why are they necessary? In particular, what do we know about prostitution in the country today?
Although the incidence of prostitution is impossible to truly ascertain, given its clandestine nature, we know from research that prostitution occurs in all parts of the country, most often on the street but also through escort agencies, in massage parlours, in private apartments and houses, and in strip clubs, hotels, and restaurants. It is facilitated through the Internet and print media advertising.
We know that 75% to 80% of those involved in prostitution are women. As I mentioned earlier, many come from the most marginalized groups of society and share common vulnerabilities, such as childhood abuse, neglect, poverty, and addictions, and they lack the education and skills necessary to exit prostitution.
Research indicates as well that a large number of those who provide sexual services entered prostitution when they were mere children, and that they experienced sexual abuse prior to their first prostitution experience. Furthermore, aboriginal women and girls are disproportionately represented among those who are exploited through prostitution.
There is simply no getting away from the fact that prostitution is an extremely dangerous activity. Studies before the courts in the Bedford case have shown that prostitution is multi-traumatic. It regularly involves physical violence, sexual violence, forceable confinement, and drugs, and involvement in prostitution often causes post-traumatic stress disorder, which can result in permanent harm.
Communities are also negatively affected by all forms of prostitution. Used condoms and drug paraphernalia may be discarded in public places, such as parks, playgrounds, or school grounds. Other community harms may include noise, impeding traffic, children witnessing acts of prostitution, harassment of residents, unsanitary acts, and unwelcome solicitation of children by johns.
Prostitution also poses other risks because of its link with human trafficking, as mentioned, which is another form of sexual exploitation, as well as its link to drug-related crimes and organized criminal groups that thrive in that environment. Two recent international studies indicate that there is cause for concern in these areas. These studies show that jurisdictions that have decriminalized prostitution have often experienced increases in human trafficking and further violence, which is unacceptable.
The risks and harms associated with prostitution are readily acknowledged. However, the issue of which legal framework should govern adult prostitution remains highly contentious. The results of the government's extensive public consultations indicate and demonstrate that Canadians are still divided on this issue, but overall the results show that the majority of Canadians consulted prefer a criminal law response, one that involves the criminalization of purchasers of sexual services and of those who exploit prostitution for their own gain.
In addition to the legally oriented response through this legislation, we have also, in a compassionate and Canadian way, brought forward additional resources to partner with provinces and organizations throughout the country that provide front-line services to help prostitutes to exit from prostitution by giving them choices and alternatives that would allow them to leave this exploitative field and find a better life.
Noting the time, I urge all members to support this important piece of legislation. There will be ample time to examine it at committee. There will be an opportunity to hear from Canadians further on this important matter. The objective here is clearly to protect the vulnerable, to protect our communities, and to move, for the sake of all those involved, to a better place and a better life.