2nd Session, 41st Parliament,

Volume 149, Issue 92

Tuesday, November 4, 2014

The Honourable Noël A. Kinsella, Speaker

Criminal Code

Bill to Amend—Third Reading

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today also to speak on Bill C-36. During my second reading speech, I outlined what troubles me most about the bill. I reminded you that this bill is not about human trafficking, nor is it about underage prostitution; it is about finding a way to protect those who choose sex work. Consensual adult sex workers will not be safe under this bill as it currently stands.

Honourable senators, I have, as you have, heard from many people on both sides of this issue, and one letter that really struck me was from Taryn Onody. She’s one of those women who will be affected by this legislation. So that there is no confusion about who we are talking about, she shared her story with me and has been so kind and generous as to allow me to share her story with you today. I will only share part of the story that she sent to me:

I started in the adult industry when I was 21 years of age. I grew up in the suburbs of Toronto. I am a practicing Catholic. My parents are upper middle class. My siblings are tax-paying, working citizens.

I come from a wonderful home, wonderful people and a great upbringing. I was an overachieving student with accelerated grades and hold multiple post-secondary diplomas/degrees. I am the girl next door.

I started looking into sex work when I became bored with my corporate job, which I held for five years. I felt bored, trapped and craving something more in my life’s experience. I found a small ad for a massage parlour. My interview was with a female who was also employed there. She was kind, sweet and a regular girl like me. I worked for this company for six years.

Taryn continues:


My experiences within my position in the adult industry were vast. Shocking. But, not at all how Bill C-36 paints it.

I worked with a group of very ambitious women. Women who taught me how to work hard, master the trade, become a stronger, smarter woman, and save my money. I was fortunate to work with women who helped each other, worked together as a team, and presented fantastic examples of what advantages the income of this business could provide.


I am a living, breathing, law-abiding citizen who is an example of how the adult industry can be a success. Be it a stepping stone to bigger dreams, a joy of all things sensual or a lifelong journey, I firmly believe that there are ways for the Canadian government to actually make history with a brand new approach.

Taryn then went on to describe a hypothetical situation:


If I had a daughter and she wanted to work in the adult industry, I would want her to be happy, successful, healthy, safe, and secure. These are the same things I would want if she wanted to be a nurse or professor or electrician. I’d want to know where she works. I’d want to know it was legal. Licensed. Clean. That her health and safety came first. That her boss was kind and flexible. A little understanding goes many miles in sex work. I’d want her to work with security personnel or measures.


I would want her clients to be kind, generous and helpful, healthy customers, respectful. Imagine the ability to formally screen customers. That could change the lives of hundreds of sex workers. Getting the message across fast about a problem or issue, and equally about a wonderful customer, is critical to building a base of safe clientele.

Criminalizing all customers is outrageously unfair, biased, judgmental and unconstitutional. I’d want her to have access to health care specific to sex work. I’d want those clinics well-funded and to have plenty of resources to supply excellent health care and safe sex education.


I’d want her to have access to legal help if she felt it was needed. And full available police services if she ever felt unsafe or harmed. I’d want to see my daughter financially sound. Responsible. Fiscally secure. Reasonable things for any parent to want, no?


I’d want my daughter to be free of stigma. Stigma is the sex industry’s biggest problem. I’d want any man anywhere in the country punished for violence, trafficking, rape, robbery, regardless if that crime happened in a strip club or a nightclub.


Taryn then goes on to suggest:

Why not invent a new system. A Canadian system. The country most known for acceptance and diversity in the world could design a functional non-judgmental approach, perhaps?


Maybe your daughter never chose to be a sex worker, but maybe she already has. The truth is, you would never know. She would hide it at all costs because of stigma. The fact of the matter is that this bill affects many more lives than you, or even I, would ever know.

That part of Taryn’s story that really struck me. She concluded by saying:

We are all someone’s daughter or son. We all deserve rights, freedom and safety.

Honourable senators, I read to you Taryn’s story, and I would not be sincere if I said to you that I agree with her point of view entirely, because I have had a different experience; I’ve walked a different path. But I believe, as I have said to you many times in this chamber, it is not for us to decide whose rights we will protect. This is a chamber of sober second thought, a chamber that was specifically created to protect rights of minorities.


I do not believe that we have a right to say we will protect the rights of people who look like us, who have the same values as us, who think like us, who are part of our group. As senators, we have to rise beyond that. We have to protect rights of every Canadian.

Honourable senators, we know this is not a bill about trafficking. Do not confuse this bill with trafficking. Two trafficking bills already exist in our country, and last week we debated yet another trafficking bill. This bill is not about trafficking. This bill is not about exploitation. This bill is about prostitution. When we mix things up with trafficking and exploitation and prostitution and rights of sex workers, we confuse the issue.

I would like to share with you the very cogent analysis done by Leo Russomanno, a criminal lawyer who works at the firm of Webber Schroeder Goldstein Abergel in Ottawa who appeared before us during the pre-study of this bill. He speaks and he has written to me about the constitutionality of this bill, and I quote him:

Bill C-36 is supposed to be about protecting the vulnerable and complying with the Charter of Rights and Freedoms. It achieves neither of these goals. The purposes as set out in the preamble are almost entirely divorced from what the actual legislation is likely to achieve. It is as though the government failed to appreciate the magnitude of the Supreme Court’s findings in Bedford.

The Supreme Court found all three previous prostitution provisions unconstitutional. It is important to note that during the application the court received a massive amount of evidence which unequivocally stated that sex workers engaging in street-level prostitution were at a decidedly greater risk of physical harm than those working indoors. Sex workers were also at a greater risk if they did not screen clients, either through communicating with a prospective client or through a receptionist. Logically, sex workers who could afford bodyguards and drivers were less exposed to physical harm. Therefore, based on the evidentiary record, the Supreme Court of Canada found that the impugned provisions did indeed deprive sex workers of security of the person. Ultimately, the court found that the deprivations were not in accordance with the principles of fundamental justice.

The “principles of fundamental justice” is language from section 7 of the Charter, which is subject to a rich jurisprudential treatment.

Any section 7 case analysis begins with determining whether there is deprivation of life, liberty or security of the person. If such deprivation exists, the task is to identify whether the deprivation is carried out in violation of a principle of fundamental justice.


In Bedford, the Supreme Court analyzed three such principles which had been developed in the case law: arbitrariness, overbreadth and gross disproportionality. Each of these principles seeks to juxtapose the legislative objective of the Criminal Code provision with the effects of the prohibition.


Bill C-36 suffers from a disconnect between its purposes and likely effects. The preamble of Bill C-36 states that the purpose of the legislation is to protect sex workers from “the exploitation that is inherent in prostitution,” and “the social harm caused by the objectification of the human body and the commodification of sexual activity” and to “protect human dignity and the equality of all Canadians by discouraging prostitution.”

Honourable senators, the goal to eradicate sex work is supposed to be achieved by criminalizing demand. The focus on demand is intended to protect sex workers. However, this is wrong thinking because by criminalizing their clientele and dissuading them from working in demarcated indoor spaces, this bill enhances the risks faced by sex workers.


The communication provisions pose a similar, albeit more obvious problem. The government’s insistence on criminalizing communication is entirely unresponsive to the Supreme Court’s Bedford decision and flies in the face of a massive evidentiary record establishing that sex workers communicate in public in order to manage the risk of physical harm.


Bill C-36 criminalizes any transaction that offers sexual services with the caveat that the seller would be immune from prosecution. The fundamental flaw of this asymmetric approach is that it will discourage the purchasers of sexual services from going to safer indoor locations where they may be arrested. It would be the most basic act of self-preservation for a purchaser to avoid the indoor location in favour of an unknown and secluded one.

The law, as did the previous legislation, will contribute to the risks faced by sex workers by forcing them where the money is and away from police attention — in the dark corners of society and out of view.


Given the two main changes brought about by Bill C-36 — the criminalization of the purchase of sex and the loftier legislative objectives — the recent Insite decision of the Supreme Court may be illustrative.

This decision suggests that a law may be arbitrary and therefore contravene section 7 where it “bears no relation to, or is inconsistent with, the state interest that lies behind the legislation.”


In Insite, the court was faced with an overwhelming evidentiary record suggesting that the safe injection site in Vancouver was protecting addicts, accomplishing the very goals the impugned legislation sought to achieve. A similar argument could be made with respect to Bill C-36. The legislation aims to protect sex workers from the risks of violence and to encourage them to report incidents of violence.


By driving sex workers out of view and preventing them from taking protective measures, this legislation will achieve precisely the opposite. While Bill C-36 purports to curb profiteering and commercialization of prostitution, it fails to address the harsh reality that prostitution is an aspect of society that is not easily erased.


It would be naive of Parliament to assume that resorting to the blunt use of criminal law will instigate the eradication of sex work. What then if we are not to rely on this aspirational purpose? The Supreme Court made it clear in Bedford that the government action cannot contribute to the harm.


We must therefore ask ourselves whether this legislation further contributes to the potential security of those at risk, of those it aims to protect. It is likely that this legislation is unconstitutional because it arbitrarily and disproportionately contributes to the harm faced by sex workers.


The government has chosen the broad sword over the scalpel and has utterly failed to pay heed to the suggestions of the Supreme Court. Mr. Russomanno’s comments were further supported last week when Professor Edward Herold from the University of Guelph stated in a brief he submitted:

[All groups] agree that criminal laws are needed to deal with forced prostitution such as trafficking and juvenile prostitution. However, there are strong disagreements regarding the issue of adult prostitution.

He went on to support this claim with the opinions of Canadians. In an extensive review done in 2012, John Lowman and Christine Louie concluded that recent Canadian public opinion surveys do not support the views of the justice minister regarding Bill C-36.


While most believe that street prostitutes should be prohibited and 96 per cent agree that the purchase of sex from a person under the age of 18 should be illegal, most Canadians do not believe that consensual adult prostitution should be illegal.

Honourable senators, I encourage you to consider these words. At the very least, we should listen to the vast majority of witnesses who appeared before the House Justice Committee deliberations, the Senate pre-study and last week’s committee meetings. They said that whether they supported the bill or not, any clause that criminalizes the sex worker in any way should be removed.

Honourable senators, I believe we all have our biases and personal value systems, and we consider the rights of all citizens. I have learned from spending time with sex workers all summer that when it comes to our fundamental rights, we must put aside our different value systems and ensure the rights of all Canadians.

I have taken this matter seriously, perhaps too seriously. All bills are serious to us, but I have worked all my life on this issue. As I said to you last week, I was in Calcutta dealing with the issue of trafficking. While there, church groups from Australia, Canada and New Zealand were also there recruiting women out of prostitution. They spend a lot of time bringing women out of prostitution. The first thing they did, which really impressed me, was to provide food for the children. Second, they provide good daycare for the women’s children. Third, they provide good housing for the women. Fourth, they give the women a skill. In this particular case, they taught them sewing and had them work in factories. The women started earning a decent living.

I listened to the minister, and I can stand here and genuinely say that I believed he was sincere about his wish to eradicate prostitution. No one in this room disagrees with him. As with everything we do in this world, things do not disappear with wishes. The minister has declared that he will set aside $4 million a year to deal with this problem.

Honestly, saying that he wants to eradicate prostitution and then giving $4 million a year to do so is not being serious. I’m not saying this, but when the former Minister of Justice of Manitoba was in front of our committee, he said that $4 million was not enough. He was mostly in support of this bill, but he said that $4 million is not enough. Manitoba alone spends $8 million a year on this problem. The minister said, if the $4 million is per capita across the country, then Manitoba will receive only $200,000.

Honourable senators, I said this last week and I will say it again: If we are serious about dealing with a problem, just passing a law will not do it. We have to provide resources. When the Minister of Justice says that he wants to eradicate prostitution, I say that I do as well. Everyone in this room wants to do that. Sex work is allowed to continue to exist under this bill and, if it’s allowed to exist under this bill, honourable senators, then I honestly believe we need to protect the sex workers. When they are consenting adults participating in this, we need to protect them.

Even when we eradicate trafficking, a goal I’m firmly committed to, there will still be consenting adults engaging in sexual acts for money. We have a duty to protect all our citizens. If we truly want to do that, we need to remove the possible criminalization of sex workers. There is much room for improvement in the bill, but this is the most crucial weakness and it must be fixed before it does damage to our citizens. We cannot continue to criminalize the sex worker.

To this end, honourable senators, I propose one simple amendment: The complete removal of proposed section 213 of Bill C-36. As stated last week, based on the decision in Bedford, this section will not hold and, until it has the chance to be challenged again in court, it will be subject to the many harmful effects of this bill. This is my primary concern with this bill, and many others agree.

This proposed section has been addressed repeatedly by both supporters and explicit opponents of this bill as something that needs to be at minimum amended and ideally removed. Sex workers cannot be criminalized under any circumstances if we want to adequately protect them.

Honourable senators, we have a responsibility to protect these individuals, as made clear in the Bedford decision. The men and women who choose to be sex workers have made it clear that criminalizing the sex worker under any circumstance would do more harm than good. If the minister is serious about the protection of these women, he will agree to remove this proposed section.


The Minister of Justice himself has acknowledged that the government has a responsibility to the safety of those who choose to remain in the sex industry. Criminalizing sex workers, regardless of the circumstances of the transaction, will prevent us from fulfilling our responsibility to Canadians.


Honourable senators, let us do the job that we were sent to Ottawa to do. Join me in expanding our moral imaginations beyond our personal biases. Let us protect the Canadians we serve, every single one of them. I ask you to amend this bill.

Motion in Amendment

Hon. Mobina S. B. Jaffer: Therefore, honourable senators, I move:

THAT Bill C-36 be not now read a third time, but that it be amended

(a) on page 7,

(i) in clause 14, by deleting lines 11 and 12 and the heading before line 13, and

(ii) in clause 15, by replacing lines 13 to 34 with the following:

15. Section 213 of the Act and the heading before it are repealed.“;

(b) on page 8, in clause 17, by replacing line 19 with the following:

(a) by striking out the reference to “212, 213,”;“; and

(c) on page 14, in clause 22, by replacing line 39 with the following:

(a) by striking out the reference to “212, 213,”;“.

The Hon. the Speaker pro tempore: A copy of the amendment will be sent to the interpreters, and then we will proceed.


I interrupted the speech of Senator Batters. I thought it was the appropriate moment to relearn the rules of this chamber. I want everybody to understand that I’m here to have those rules respected. There is a very simple rule: No senator should cross the line between the senator who is speaking and the chair. There have been too many times that I have seen this happening, and I thought it was appropriate to remind everybody that we have a rule to be respected.

Hon. Senators: Hear, hear!

The Hon. the Speaker pro tempore: Thank you very much.


I will resume reading the amendment.

It is moved by Senator Jaffer, seconded by Senator Smith:

That Bill C-36 be not now read a third time, but that it be amended

(a) on page 7,

(i) in clause 14, by deleting lines 11 and 12 and the heading before line 13, and

(ii) in clause 15, by replacing lines 13 to 34 with the following:

“15. Section 213 of the Act and the heading before it are repealed.”;

(b) on page 8, in clause 17, by replacing line 19 with the following:

“(a) by striking out the reference to “212, 213,”;”; and

(c) on page 14, in clause 22, by replacing line 39 with the following:

“(a) by striking out the reference to “212, 213,”;”.

Is there debate on the proposed amendment?


Hon. Joan Fraser (Deputy Leader of the Opposition): Your Honour, I thank you for reminding us about the rule that none of us should cross between the person who is Speaker and the person who is speaking.

There is another rule to which I wish to refer: When the Speaker is standing, all other senators are to remain seated.

Hon. Senators: Hear, hear!

The Hon. the Speaker pro tempore: Senator Fraser, I thank you for reminding us of another interesting feature of our rules.

Thank you, colleagues, and I hope everybody will take good note of that.


One Response to November 4 2014 Third Reading Bill C-36

  1. […] yesterday. Taryn Onody sent me a letter with her story. I encourage you to read more of it in my speech, but here is a short […]

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