SSLR Committee Meeting

37th PARLIAMENT, 2nd SESSION

Subcommittee on Solicitation Laws of the Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, October 7, 2003

º

1600

The Chair (Hon. Hedy Fry (Vancouver Centre, Lib.))

The Chair

Ms. Libby Davies (Vancouver East, NDP)

The Chair

Ms. Libby Davies

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

The Chair

Mr. Richard Mosley (Assistant Deputy Minister, Criminal Law Policy Section, Department of Justice)

º

1605

º

1610

The Chair

Mr. Richard Mosley

The Chair

Ms. Lucie Angers (Senior Counsel, Criminal Law Policy Section, Department of Justice)

º

1615

º

1620

º

1625

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Richard Mosley

Ms. Lucie Angers

Mr. Chuck Cadman

º

1630

Ms. Lucie Angers

Mr. Richard Mosley

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Mr. Richard Mosley

º

1635

Mr. Richard Marceau

Mr. Richard Mosley

Mr. Richard Marceau

Mr. Richard Mosley

Mr. Richard Marceau

Mr. Richard Mosley

Mr. Réal Ménard

Ms. Lucie Angers

Mr. Richard Marceau

º

1640

Ms. Lucie Angers

The Chair

Mr. Inky Mark (Dauphin—Swan River, PC)

Mr. Richard Mosley

Mr. Inky Mark

Mr. Richard Mosley

Mr. Inky Mark

Mr. Richard Mosley

Mr. Inky Mark

Mr. Richard Mosley

The Chair

Ms. Libby Davies

º

1645

Mr. Richard Mosley

Ms. Libby Davies

Mr. Richard Mosley

º

1650

Ms. Libby Davies

Mr. Richard Mosley

Ms. Lucie Angers

Ms. Libby Davies

Ms. Lucie Angers

Ms. Libby Davies

The Chair

Ms. Libby Davies

Ms. Lucie Angers

º

1655

Ms. Libby Davies

Ms. Lucie Angers

The Chair

Ms. Paddy Torsney (Burlington, Lib.)

The Chair

Ms. Paddy Torsney

The Chair

Ms. Paddy Torsney

The Chair

Ms. Lucie Angers

The Chair

Mr. Réal Ménard

»

1700

Mr. Richard Mosley

Mr. Réal Ménard

The Chair

Mr. Richard Mosley

The Chair

Ms. Lucie Angers

The Chair

Mr. Chuck Cadman

Mr. Richard Mosley

»

1705

Mr. Chuck Cadman

The Chair

Ms. Paddy Torsney

Mr. Richard Mosley

The Chair

Ms. Libby Davies

Mr. Richard Mosley

Ms. Libby Davies

»

1710

Ms. Lucie Angers

Ms. Libby Davies

Ms. Lucie Angers

The Chair

Ms. Paddy Torsney

The Chair

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CANADA

Subcommittee on Solicitation Laws of the Standing Committee on Justice and Human Rights

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NUMBER 002

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, October 7, 2003

[Recorded by Electronic Apparatus]

º  (1600)  

[English]

    The Chair (Hon. Hedy Fry (Vancouver Centre, Lib.)): I now call the meeting to order.

    Today, as you know, we have witnesses from the justice department, but before we listen to the witnesses, there's a little bit of housekeeping we need to do.

    We want to talk about how many minutes we would require witnesses to present. The usual time has been ten minutes. We want to decide here how we would go about questioning, what would be the length of time for questioning, the protocols for that. Perhaps we can quickly do that.

    First, we could agree to do the usual protocol, which is ten minutes per witness. Is that agreeable to everyone? Okay, there seems to be agreement there.

    Now, what about the question times? Are there any suggestions?

    An hon. member: What would it normally be?

    The Chair: Well, committees vary. I know I sometimes confuse what committees are doing, because I'm on one committee thinking I have seven minutes and find I have only five, or something like that.

    On the main justice committee, my understanding is that the opposition member has seven minutes to start, the first round is seven minutes each, and then subsequent rounds are three minutes. Is that okay with everyone?

    Ms. Libby Davies (Vancouver East, NDP): We are a smaller committee.

    The Chair: That's what I meant. We need to talk about that.

    Ms. Libby Davies: Because we're a smaller committee and hopefully really want to get into this subject, I wouldn't have a problem if we agreed that there would be a longer period for questioning, if that works in terms of the number of witnesses that we have.

    If it was seven minutes for each party on the first round...I don't know. I'm trying to remember again what we did on the drug committee, because my recollection is that whatever we did there worked quite well. I don't ever remember feeling that there wasn't enough opportunity to speak, to ask questions.

    I don't know if anybody has any recollection of what we did on that committee. Perhaps Réal remembers what we did.

    The Chair: I think Réal had a lot to do with formulating that protocol.

[Translation]

    Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Wasn't it ten for the first round, and five, for the second? I would prefer that we have a first round of ten minutes, and a second one of five, if there is enough time left. There aren't many of us, but will there be a lot of Liberals? We don't know. On the Committee on the Non-medical Use of Drugs, that system worked well.

[English]

    The Chair: One Liberal.

    Inky, I don't know if you're more comfortable sitting across there. It's easier. You're not crowded. We don't always have to sit on opposing sides, because only Paddy's going to sit there.

    Then do we have agreement from everyone? There's a suggestion that we go to ten minutes for the first round and then five minutes for the second round. All right, there seems to be consensus on this.

    We will begin today with witnesses on the review of the solicitation laws. We have two witnesses from the Department of Justice: Richard Mosley, assistant deputy minister, criminal law policy section; and Lucie Angers, senior counsel, criminal law policy section.

    Mr. Mosley, would you begin?

    Mr. Richard Mosley (Assistant Deputy Minister, Criminal Law Policy Section, Department of Justice): Thank you, Madame Chair.

    When we were invited to appear before the committee this afternoon, we consulted with your clerk as to what might be of assistance to the members of the committee in beginning this study. It was suggested that we provide a bit of historical background on how we came to have the current law.

    I understand that although the reference is with respect to solicitation particularly, you're interested in broader aspects of the issues relating to prostitution. It's difficult to isolate street solicitation from those other matters, so we will attempt to touch on a broader spectrum.

    I spent a good deal of the 1980s involved with this issue, and my colleague Maître Angers has spent a good deal of the 1990s dealing with it as well. So we thought we would divide up our discussion this afternoon. I'll start with some of the ancient history on the subject and Maître Angers then will attempt to bring you up to date on what has happened more recently.

    We've circulated a deck, and it begins with a truism or perhaps a trite observation that I'm sure you're familiar with: that prostitution per se is not illegal in Canada, but that the Criminal Code does address three categories of prostitution-related activities. Those are, respectively, keeping or being an inmate of a bawdy-house, which is found in section 210 of the Criminal Code; procuring or living on the avails, a series of offences that are set out in section 212 of the code; and then the one that has caused perhaps the most difficulty over the past twenty years, the notion of communicating in public for the purpose of engaging in prostitution, which is found in section 213.

    Dealing with history, prior to 1972 Canada had a vagrancy law as part of its Criminal Code, which covered a number of different conditions. One of them applied to women who were found in a public place and were unable to provide a good account of themselves. This was used to deal with what were known as common prostitutes or streetwalkers, and it authorized the police and the then police magistrates, as they were known, to remove women--and it was exclusive to women--from the streets and to impose fines on them for conducting their business in public places.

    That, of course, was an archaism that derived from the early part of the century and from old English statutes aimed at public order. It was repealed in 1972 and replaced with an offence that did not address the status or condition of the individual but the conduct of that person in a public place. It was the criminalization of solicitation of a person in a public place for the purpose of prostitution.

    That was intended to be a reform in 1972, to bring the law up to date. It caused a considerable amount of difficulty, in that its interpretation was disputed over the ensuing years. There was a considerable question in the courts as to what “solicit” meant. Did it mean a wink, a nod, or a casual conversation, whether that constituted soliciting? What level of importuning or persuasion was required in order to meet the standard of solicitation? There were questions as to whether it applied to customers, a customer soliciting someone else for the purposes in a public place. Did it apply to them? There were contradictory decisions on that. What was a public place itself was a question, and whether it applied to somebody soliciting from a motor vehicle in a public place.

º  (1605)  

    The 1972 law was not implemented easily, but the issue really came to a head with the decision of the Supreme Court of Canada in Hutt, in 1978. The court concluded that for soliciting to meet the standard of criminal conduct required by the code, it had to be pressing or persistent. In a subsequent decision, Whitter and Galjot, 1981, the conduct had to be directed at a single customer and could not consist of an accumulation of advances toward different potential customers. In that, it had addressed an attempt by the law enforcement agencies and the crown to meet the Hutt standard by establishing through evidence that the accused in a particular case had approached a succession of potential customers. The crown had argued that this constituted pressing or persistent conduct. It was not successful, ultimately.

    During this period of time, 1978 to 1984, there were repeated calls by the provinces at the federal-provincial meetings of justice ministers, calls from municipalities, and certainly calls from the police to revise the law to make it more effective, to address the issues that had been identified by the courts in response, in particular, to the Hutt decision.

    At that time the Government of Canada was more inclined—certainly this was the view of the Minister of Justice of the day—to leave the area to municipal regulation. The argument was that the municipalities would be better suited to deal with this as a matter of control of their own public space and that it did not need to be part of the criminal law. That was the view expressed on a number of occasions by the Minister of Justice at these meetings I've referred to.

    Unfortunately, the efforts by the municipalities to respond to that invitation were met yet again by a decision of the Supreme Court of Canada, in 1983 in the case of Westendorp. It concerned an attempt by the City of Calgary to enforce a bylaw it had adopted to deal with the situation of what they regarded as a public nuisance on their streets. The Supreme Court in Westendorp said no: “Sorry, but this is criminal law. You've invaded an area of jurisdiction you don't have.”

    That, of course, put renewed pressure on the Government of Canada to respond to the issue. As you know, in 1983 the government was facing a general election. The Minister of Justice of the day, the Honourable Mark MacGuigan, decided to form a special committee that was led by Mr. Paul Fraser from Vancouver. Appointed in 1983, iIt was a special committee on pornography and prostitution.

    The committee did not report until 1985, at which point Mr. Crosbie was Minister of Justice. As noted in our deck, the committee found that prostitution is a social problem that requires legal and social reforms. If prostitution is legal, the issues of where and when it can occur should be addressed. The committee, in its most prominent recommendation—the one that attracted the most attention—suggested that one or two prostitutes should be allowed to work out of private residences; if that were to be permitted, it would resolve at least to a certain extent the concerns about prostitution in the streets.

    Just prior to 1984, the Badgley committee on sexual offences against children and youth—

º  (1610)  

    The Chair: There's just under two minutes—one more minute, actually.

    Mr. Richard Mosley: I will perhaps not go through the rest of this. You can read it at your pleasure.

    We continued to work on the subject through the 1980s. There was the legislation Mr. Crosbie introduced, which is the current law; a review by the Standing Committee on Justice and the Solicitor General, as it was then called; a report in 1989; a further decision by the Supreme Court of Canada in 1990; the response of the government in 1991; a federal-provincial-territorial working group on prostitution established in 1992, which reported in 1998 with some recommendations; and then subsequent meetings with regard in particular to child welfare considerations in relation to child prostitutes.

    I'll quit there. I guess in the circumstances I won't call on my colleague to continue, unless you want to hear more.

    The Chair: No, we thought we would give Madame Angers ten minutes to do her piece.

    Thank you very much, Mr. Mosley.

[Translation]

    Ms. Lucie Angers (Senior Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Madam Chair.

    I would like to begin on page 9 because, as Mr. Mosley already mentioned, a number of events occurred during the nineties. First of all, the Federal-Provincial-Territorial Working Group on Prostitution was formed, which conducted considerable research as well as extensive consultations, and in 1995, it presented an interim report containing a number of recommendations, some of which were acted on by the government. However, having discussed this with your researcher, I believe you are more interested in the recommendations made in 1998 by the Federal-Provincial-Territorial Working Group on Prostitution.

    The main purpose of the Working Group was to look at two main issues: first of all, youth involved in prostitution, and second, street solicitation. As a result of the Committee's work, it was decided that we should also look at the issue that prompted your specific study—in other words,the matter of violence against prostitutes, which is an issue both among young engaged in prostitution and with street solicitation by prostitutes.

    I don't know whether you would like me to talk some more about violence or not; I know this is something of particular interest to Ms. Davies. It is a question that is addressed throughout the Committee report, because of the prevalence of violence in the context of street solicitation. The Federal-Provincial-Territorial Working Group on Prostitution based itself on a variety of consultations and research, as well showing that there was a close correlation between violence against prostitutes and the places where prostitutes practised their trade. Anonymity, isolation and the fact that cars are where prostitution is often practised—all of these factors have contributed to making street prostitutes more likely to be victims of violence than prostitutes working indoors in houses, for example.

    The Federal-Provincial-Territorial Working Group also noted that in terms of enforcement, there was a marked difference between enforcement of Section 213, relating to communication in a public place for the purposes of prostitution, and enforcement of Section 210, relating to common bawdy houses or brothels. The Working Group noted that there were far fewer charges laid under Section 210 than under Section 213, as a result of a need and a demand from citizens, municipalities and provinces that street prostitution not be practised in residential neighbourhoods. All of that resulted in prostitution being displaced to other areas. One of the Working Group's findings was that Section 213 probably had not succeeded in resolving the problem of street prostitution, but had certainly succeeded in displacing the problem from one area to another.

    We could certainly share some statistics with your researchers that tend to demonstrate that Section 213 has had some impact, but probably a less significant impact than the government at the time might have hoped.

    That is one of the issues I believe would probably be of greater interest to you. The issue of violence is also connected to youth involvement in prostitution.

º  (1615)  

    Contrary to recommendations on street solicitation, there was almost unanimous agreement on recommendations about youth involvement in prostitution among members of the Federal-Provincial-Territorial Working Group on Prostitution. They agreed that youth were more likely to be victimized and that street workers had a much better chance of “rehabilitating” them or removing them from an environment that was completely inappropriate; the main findings of the Working Group were that prostitution needed to be addressed from a social intervention point of view,rather than from the standpoint of what could be done to criminalize youth.

    As you know, there are a number of ways of dealing with youth in crisis, and there have been several attempts by both the provinces and the federal government to ensure youth are treated in a somewhat more appropriate fashion, both in terms of police discretion—a policeman can tell a youth that he will take him back home and then speak to the parents, in an attempt to break the cycle in which that youth could find himself becoming trapped—and in terms of instructions given to the Crown to avoid charging a youth involved in this kind of activity. The entire rationale behind the treatment of youth involved in prostitution was to victimize young people for a decision they supposedly had made on their own and that had resulted in their ending up in this environment.

    There is also the whole question of enforcement of provincial child welfare legislation, such as in Alberta, and we will be referring to this a little later—as well as alternative approaches to dealing with youth and children under legislation relating to the youth criminal justice system. I won't discuss that in detail, but you may want me to provide further clarification in that respect later on.

    So, the second part of the report of the Federal-Provincial-Territorial Working Group on Prostitution dealt with violence against youth involved in prostitution. Finally, the Working Group addressed the whole matter of street solicitation and ways of addressing this significant issue.

    One of the Working Group's recommendations was that municipalities, the provinces and the federal government get together to discuss the appropriateness of creating red-light districts or zones of tolerance where street prostitution could be practised, or of establishing brothels in certain districts.

    As Mr. Ménard reminded me earlier, there is a Private Member's Bill on this which is currently before the House—Bill C-480. Many similar initiatives have been taken over the years to decriminalize street prostitution by amending Section 213, or to decriminalize it or regulate brothels by means of amendments to Section 210 of the Criminal Code.

    Of course, there are advantages and disadvantages to decriminalizing or regulating brothels. There has been a great deal of discussion about decriminalization as opposed to regulation. That is the third area addressed in the report of the Federal-Provincial-Territorial Working Group on Prostitution.

    There were many other initiatives following the tabling of the report of the Federal-Provincial-Territorial Working Group on Prostitution, given that the report highlighted the problem of youth involvement in prostitution. One of these initiatives was to set up another working group, which is still in place, namely the Federal-Provincial-Territorial Working Group on the Commercial Sexual Exploitation of Children and Youth, which is mainly addressing the problem of the trafficking of youth between provinces, and how new technology can help to resolve certain problems, while at the same time creating others.

    Following the tabling of the report of the Federal-Provincial-Territorial Working Group on Prostitution, a number of government Bills were also tabled with a view to simplifying the process for tackling street prostitution among youth and, as Ms. Fry is well aware, facilitating the prosecution of Canadians who go abroad and commit sex tourism offences, for example.

º  (1620)  

    On the last slides, we talked about provincial responses to prostitution. An interesting example—and I have already referred to this, is what happened in Manitoba and Alberta.

    The final slide deals with international developments. At the present time, the trend, particularly within the European Union, is increasingly to decriminalize prostitution, particularly when practised in brothels, thus allowing prostitutes to enjoy social benefits while at the same time practising their trade in safer conditions than would otherwise be the case in the streets.

    That completes my presentation. Thank you.

º  (1625)  

[English]

    The Chair: Merci, Madame Angers.

    Mr. Cadman.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you to the witnesses. It's nice to see you again.

    I just have a couple of questions. First, there have, as you mentioned, been a number of legislative changes over the years to address the issue of exploitation of young people. Can you give us an outline of some of changes that have occurred, and has there been any measurable improvement in that particular area favouring the victims? That's basically what we have to look at—the victims here—because that's what I see: that children who are involved in the sex trade are victims. With the legislative changes that have occurred over the last decade or so, have we seen any actual, measurable signs of improvement in that area?

    Mr. Richard Mosley: Both of us will attempt to answer your question.

    I'm not sure we have any measurable impacts in that area. There have been, as you know, legislative efforts going back to Bill C-15 and Bill C-51, I think--I forget the exact number—in the late eighties, and those efforts have continued right up to Bill C-20, which is currently before the House.

    Certainly much of the object of the legislative effort has been to close any loopholes that would permit the sexual exploitation of children. A great deal of time and effort and thought have gone into that. We had the two Badgley reports on the subject. We had federal-provincial working groups.

    We didn't come prepared to answer that specific question today, but we'd be happy to provide a full exposé of the efforts that have been made and to consult with our colleagues in the provinces and other federal departments to see whether there are any indicia of success in the performance of that legislation.

    Can you add anything to that?

    Ms. Lucie Angers: Yes.

    As Mr. Mosley was saying, establishing measures in dealing with prostitution is not an easy issue. Even knowing how many prostitutes, especially young prostitutes, are out there is extremely difficult. As you know, a lot of it is hidden because it is illegal under the Criminal Code.

    One thing the government did in 1997 and 1999 was to help in the enforcement of the provision concerning obtaining the sexual services of a child. A lot of criticism coming from the police was saying they were not able to enforce this provision, because the best way to catch people, obviously, would be to use decoys, and they couldn't use decoys under 18 because it would have been against morality and all that. So the government changed the provision to make sure it was an enforceable provision. According to our conversations solely within all the working groups, it appeared to have worked to a certain extent, and was certainly more enforceable.

    Whether it has prevented kids from continuing to be on the street is another issue. As you know, it's so mixed up with abuse, with drugs, with all these other components that make a kid think of the street as a viable option. But we can certainly come back.

    Also, the provisions in relation to child sex tourism certainly helped send the message to Canadians that not only is it bad if you go against kids in Canada, but it's also bad if you go abroad. They helped, I think, send the message in a clearer way.

    Mr. Chuck Cadman: To that end, has there been any effort on the part of the federal government to work together with provincial counterparts, whether statistically or in establishing the indices of measurement or whatever you want to call them, to try to get a real handle just on the magnitude? I certainly know in some areas—obviously where Libby and Hedy are in the downtown east side, and in my constituency in Surrey—it's extremely visible on the streets. We can sort of get a handle on it, but it's difficult, as you say. Has there been an effort on the part of various jurisdictions to come together to try to outline the scope of it?

º  (1630)  

    Ms. Lucie Angers: That's certainly a problem we faced within the working group, because at the time we started the work in 1992, the data were not disaggregated. So all of the charges or cases under sections 213 and 212 were one number, and that was it. One thing that we did want to find out was how many cases there were under each: procuring, or living on the avails of prostitution, or obtaining sexual services of a child. For instance, section 212 is the procuring offence, but it also includes the provision relating to the obtaining of the sexual services of a kid, and we had no idea how many persons were charged under this, as opposed to procuring an adult to have illicit sexual intercourse.

    So that's certainly something that was addressed and has been rectified. Some provinces are still excluded from the data; B.C is excluded at the moment, and Manitoba, New Brunswick, and Nunavut. But we are working to get all of the data together in the adult criminal court survey that the Canadian Centre for Justice Statistics issues every year. We we are getting there in terms of trying to obtain some more reliable evidence in relation to that.

    Mr. Richard Mosley: Could I just add, there was also a recognition that we tend to work in stovepipes. We normally interact with our colleagues in the provincial justice ministries, and there was a need for horizontal efforts. So there was an attempt to engage in discussions between social welfare ministers and justice ministers on this problem.

    Thank you, Madam Chair.

    The Chair: Thank you. That was excellent; you had four minutes left.

    Monsieur Marceau.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Madam Chair.

    I want to thank you for being with us today. I'm sure that you know you are the first witnesses to come before the Committee. So, you will be our guinea pigs, in a way.

    When legislation is passed, there is clearly an objective behind that legislation. My first question, which may seem rather trivial but really isn't, is: what goals were being pursued through Sections 210, 121 and 213 of the Criminal Code? What exactly were we attempting to do with these provisions?

[English]

    Mr. Richard Mosley: If I may attempt at the outset.... My colleague will join in.

    Some of these provisions have been in the Criminal Code for many years, so it's difficult for us to reconstruct what the legislative object was.

    Keeping or being an inmate in a bawdy house goes back, I'm sure, to the 19th century. It was probably an effort to avoid the public or social nuisance of houses of prostitution, or at least to give the law enforcement agencies the means to attempt to control their proliferation.

    On the procuring or living on the avails offences, they were clearly aimed at trying to control the traffic, or what used to be called the “white-slave traffic”, or pimping, in female prostitutes.

    On the communication in public for the purpose of engaging in prostitution, it was quite clear that the federal government at that point in 1985 felt obliged to respond to the pressure from communities to do something about the social nuisance of the appearance of large numbers of prostitutes in the downtown cores of cities.

    As I noted earlier, there was a recommendation from the Fraser committee, which the government chose not to accept or act on. I can tell you that it was largely because of the absence of a consensus at that point in time, either from the provincial governments or, more particularly, from the municipalities. One of the difficulties in trying to deal with this issue over the decades has been that recommendations are put forth in good faith, but when it comes down to the practicalities of getting agreement to implement them, it's rare for there to be any form of consensus. That was clear in 1985.

    Mr. Crosbie, the Minister of Justice, decided he was going to deal with the problem that was the greatest irritant in federal-provincial relations at that time, which was street solicitation. He couldn't get agreement to go beyond that, so he chose to act on that particular problem.

º  (1635)  

[Translation]

    Mr. Richard Marceau: That's Section 213.

[English]

    Mr. Richard Mosley: Yes.

[Translation]

    Mr. Richard Marceau: My next question is an obvious one. Did it work? Was the goal pursued by Section 213—in other words, to put an end to street solicitation—met through this provision, in your opinion?

[English]

    Mr. Richard Mosley: I think it's difficult; there are very different views on that. If you speak to a number of researchers, they will tell you, “No, it was not effective; it merely displaced the problem.” So instead of having it visible on St. Catherine Street, for example, in Montreal, it was dispersed into pockets around the city where it was less visible. In 1985 prostitution was being carried on visibly on St. Catherine Street and in parking lots adjacent to St. Catherine Street.

    In Halifax, Regina, or Vancouver, in any of the major hotels in the downtown core, if you walked out the front door, there would be a line-up of prostitutes from the front door of the hotel to the corners. That was the social irritant driving the pressure for legislative change at that point in time. And Minister Crosbie I think was quite open about saying he couldn't address all of the social ills and was simply trying to deal with that one problem.

[Translation]

    Mr. Richard Marceau: So, if I understood what you said in giving us some of the history behind the legislation, prostitution itself is not illegal.The aim was to avoid any disturbance of the peace, and one of the things disturbing the peace was street solicitation. That is the problem Section 213 was attempting to address. You have just said that on the whole, this approach didn't work. So, we have a problem in terms of not only the objective, but also the means used to attain that objective. The aim was to avoid disturbing the peace, but Section 213 does not actually address that problem.

    You are both eminent legal experts. Do you have any suggestions to make?

    A number of members of this Committee have looked at this specific issue, including Libby Davies and Réal Ménard, on our side. We have realized that we simply cannot allow the current situation to continue. You have arrived at that same conclusion. Do you have any suggestions as to how we might address this problem, which is fairly prevalent? I guess we're asking you to give us your own analysis and tell us what can be done going forward.

[English]

    Mr. Richard Mosley: Malheureusement, comme fonctionnaires, we're in a bit of a difficult position here, because our role, of course, is to give advice to the government, the Minister of Justice.

    I'm sure you will hear a great many suggestions from the other witnesses you will invite to the committee. I think it would be inappropriate for us to volunteer or offer suggestions as to what the solution may be.

    Mr. Réal Ménard: Then you cannot talk as a customer.

[Translation]

    Ms. Lucie Angers: What we can say, though, it is that during the discussions of the Federal-Provincial-Territorial Working Group on Prostitution, we heard all the commentary. There were extensive consultations. As you have already been told, we have conducted a great deal of research. The Working Group was in place for six years, produced an interim report, and tabled its final report in 1998, but we were not successful in reaching consensus. Yes, there were a great many suggestions made, and I would invite you to read the Working Group's report, but the problem is arriving at a consensus around those suggestions. You will see for yourselves that society is very divided on this issue. It always comes down to the “not-in-my-backyard” syndrome. People may agree on the idea of legalizing prostitution, but when they are asked where and how prostitution should be practised, they say that they don't want it taking place near where they live. That is the problem Ms. Davies came up against. Given this kind of reasoning, prostitution is necessarily practised in places that are more and more remote, resulting in violence against prostitutes.

    Mr. Richard Marceau: Ms. Angers, should I take your comments to mean that there seems to be some consensus on decriminalizing or legalizing prostitution, and that the only problem you have identified is where it should take place? Is that what you're saying?

º  (1640)  

    Ms. Lucie Angers: No, we can't even say that, because it was impossible to achieve consensus even with respect to that approach. One of the main problems is determining where this activity should be carried out, but at the same time, what municipality will want to pass by-laws like the ones in Amsterdam, for example, to establish districts where brothels can conduct business and other special areas for street prostitution? We didn't even get that far. Like all the other federal-provincial-territorial working groups, this Working Group would certainly have liked to achieve consensus on all these recommendations, but that simply was not possible because this is too difficult an issue to resolve without creating other problems.

[English]

    The Chair: Thank you, Monsieur Marceau.

    Mr. Mark.

    Mr. Inky Mark (Dauphin—Swan River, PC): Thank you, Madam Chair.

    I want to thank our witnesses for appearing today.

    The Fraser commission ruled twenty years ago on this same topic. In your own evaluation, how far have we moved ahead on decriminalization?

    Mr. Richard Mosley: There really hasn't been an attempt to decriminalize in this area. I think that largely reflects the fact that the Supreme Court's decisions in the early 1980s pretty much closed the door. There was considerable interest.

    The government of the day I think would have preferred for this to be resolved at the municipal level. Unfortunately, to be able to do that, the municipalities have to have the legislative competence to adopt the necessary measures. The court pretty much closed that door, so thereafter they were looking at what options remained within the scope of the Parliament of Canada under the criminal law power.

    Mr. Inky Mark: This topic is similar to that of marijuana: you decriminalize it, yet it's still a breach of the law. Maybe you can define for me the difference, if there is a difference, between decriminalizing--taking it out of the Criminal Code--and legalizing. Is there a difference, or are we talking about the same thing?

    Mr. Richard Mosley: Yes, I would argue there is.

    Mr. Inky Mark: Do we have something specifically in point?

    Mr. Richard Mosley: Yes, we do. This is from the federal-provincial-territorial working group on prostitution report, December 1998, page 64:

“Decriminalization” refers to the complete removal of a prostitution-related offence, such as s. 210 or s. 213, from the Criminal Code; “Regulation” (also called...'legalization' or 'partial decriminalization') refers to a framework in which some prostitution activity which is subject to criminal sanction under existing provisions of the Criminal Code would be rendered lawful, despite those provisions, where certain conditions specified in the Criminal Code were met; under those conditions, the prostitution activity would be exempt from criminal prosecution although the sections of the Criminal Code proscribing that activity would remain enforceable in other parts of the country where the exempting conditions were not met.

    I think that was in fact what the Fraser commission was trying to get at, that you wouldn't remove all of the provisions from the code; the basic framework would remain. But you would authorize prostitution activities specifically where I think it was one or two operating in a home.

    Mr. Inky Mark: Doesn't that send the wrong message throughout the country, that it's all right to do it under these certain conditions, and outside of those conditions it's not all right?

    Mr. Richard Mosley: You'll have to refer to the commission's work. I think they were trying to deal with the reality of the situation. They tried to offer a solution, a practical way to address that problem.

    The Chair: Ms. Davies.

    Ms. Libby Davies: Thank you very much.

    I'm really glad that we're having this discussion. Thank you for coming today to give sort of an historical overview of what we've gone through.

    I remember the Fraser committee. I was on Vancouver City Council at the time, so I was on the other end of municipalities that were experiencing a lot of stress and anxiety over street prostitution. I actually never supported what came out of the Fraser committee. Well, I supported the Fraser committee, but the changes that took place in terms of toughening the law seemed to me to be completely the wrong solution. I do thank you for giving that historical overview.

    The thing that really strikes me is that here we are 18 years after the Fraser committee. They did recognize that we were dealing with basically a social problem and that there is this terrible contradiction in the law that on the one hand prostitution is not illegal and yet everything that would allow it to happen is--that is, communicating, where you go. It seems to me that the Fraser committee recognized that. I think one of the tragedies is that now, 18 years later, one has to look at whether or not the current laws have worked.

    We now have, I would think, hundreds of women who are missing or known to be dead across Canada. We have 61 women in Vancouver. We have 22 in Edmonton. There are a number more in Winnipeg, more in Montreal—I don't know how many, maybe Réal will tell us. So one of the first questions I have is whether anybody in the justice department is actually keeping track of the number of women who are known to be missing or dead as a result of being involved in the sex trade.

    What I would say—and maybe you don't agree with this—is that the Criminal Code itself is now contributing to the risk that they face, because the communicating law is saying basically that you have to get in a car, the door will be locked, you're driven away, you do your business, and there you are, you're out of sight. That's one question. Is the department keeping any statistics? Do you have an idea of what we're actually facing across Canada? If it were any other group, I am sure there would be an outcry, but this is almost an invisible group.

    Second, is it fair to say—I know you're not wanting to offer opinions about what we should do, but you've been involved in this a long time, both of you—that there is a consensus that the law has failed? If it was to protect communities, it hasn't worked. If it was to protect the women on the streets from prostitution, it hasn't worked. Can we at least start from that point—the status quo in terms of whatever these sections were meant to accomplish? It seems to me that even the review in 1990 and the federal-provincial-territorial working group report in 1998 both acknowledge that the law, the Criminal Code, as an instrument dealing with this has been a failure.

    Maybe we could start with those two questions.

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    Mr. Richard Mosley: I don't think we can agree with that conclusion, simply because it depends on what question you're asking and to whom you are asking it. Clearly the federal-provincial officials who have done this work in the past decade have acknowledged that in terms of reducing prostitution, street solicitation, it has not had that effect. What effect it has had, however, is to disperse or displace the street prostitution.

    For some people, that may be regarded as a success. If you were living in one of the communities most directly affected, your conclusion may well be yes, that law had the benefit for reducing the social nuisance factor in your neighbourhood.

    Ms. Libby Davies: Except that it crops up in another neighbourhood.This is what we've witnessed in Vancouver.

    Mr. Richard Mosley: That is, of course, the problem.

    This used to be a perennial issue on the agenda for every meeting we had with the police, or with the provincial attorneys general. From their perspectives, I would suggest, they would probably argue that in enforcement terms the law achieved the objective the government of the day in 1985 had for it of restoring an instrument of control to the police to deal with particular hot spots. They're not enforcing the prostitution and solicitation laws on a constant basis, but they do enforce them when they get complaints about a particular neighbourhood. They will send in the decoys, etc., and they will address that problem. I think from their perspective the law probably achieved what it was intended to achieve in 1985.

    You're quite right, however, that there are other perspectives on that question as to whether it was a success or not.

    The earlier part of your question, I'm afraid...?

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    Ms. Libby Davies: Does the justice department have any information about what is actually out there, even just going back to 1985? How many women have actually gone missing or have been known to be murdered? I draw a conclusion that the code contributes to that. Others may not agree. I would say that could be argued very strongly. But is anybody on top of that, do you think?

    Mr. Richard Mosley: There is no data, to my knowledge.

    Are you aware of anything, Lucie?

    Ms. Lucie Angers: We did some analysis before we tabled the report of the FPT working group on prostitution. You'll see on pages 8 and 9 that we do refer to the problem of violence against prostitutes, and we do put numbers, but the numbers are obviously outdated now.

    The Canadian Centre for Justice Statistics still collects numbers in the context mainly on violence against women. They did issue recently some statistics in relation to that. I think it's in that document where you can find some specific information, but I could check if you want me to.

    Certainly one of the studies we commissioned was to ask whether there was a link between the enforcement—the way in which the law was enforced in relation to section 213—and violence against prostitutes. Although they did all the studies in the six major cities—Halifax, Montreal, Toronto, Calgary, Winnipeg, and Vancouver—the conclusion was that the atmosphere on the street had become more tense. They could not establish a causal link between enforcement and prostitute deaths as such. However, the Vancouver study did show that the prostitutes were forced to work in more remote areas, had more adversarial relationships with the police. In Calgary, similar findings were found. In Montreal, drug use had been reported as well. There were several factors, but the link between the cause and effect was not clearly demonstrated. However, it's certainly something we were very well aware of.

    Ms. Libby Davies: Madam Chair, maybe we can get the statistics.

    What did you say it was? The Centre for Statistics....

    Ms. Lucie Angers: The Canadian Centre for Justice Statistics. Recently they issued—and Mr. Mosley perhaps can remember the title—a report. I think it was “Violence Against Women in Canada”, or something like that, but I will provide it to the greffier or researcher.

    Ms. Libby Davies: Do I have more time?

    The Chair: This group is one of our potential witnesses.

    You have two minutes, for question and answer.

    Ms. Libby Davies: In terms of the federal-provincial-territorial working group, you just said you worked for six years. Again, it seems to me that from the information I've read there was an idea that the current status quo was a failure. I'm curious as to why the group did not recommend any changes to section 213, or at least an opportunity to bring that forward and to say the communicating law is not really helping local communities. It certainly isn't helping these people who are so at risk on the street. Can you illuminate that at all?

    Ms. Lucie Angers: Certainly. We did make several recommendations, which you'll find at the end of the paper—16 recommendations in all. A lot of the recommendations, as I said, were aimed at kids, but also we had some recommendations toward street solicitation.

    Our problem, as I was telling Mr. Marceau, was the lack of consensus, because we were all acting, obviously, in our capacity more as experts; we were not representing political views on the issue. However, even as experts, it was extremely difficult because of what we had heard during the consultation process. We had a lot of consultations, which does explain the reason it did take a long time, and because we didn't have resources, each jurisdiction was holding these consultations when they had a chance to do so.

    You'll see that the recommendations that do take the most space in the documents are the ones relating to sections 213 and 210, because it was impossible to reach consensus, as you do have pros and cons: yes, it might be a good idea to decriminalize, because it would help the prostitutes, making sure they have a good living, a good social couverture, and all that, but on the other hand it will probably create problems in terms of bringing in more organized crime in the area, or maybe the government pimping. You know the argument about the state pimping—

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    Ms. Libby Davies: But we do that already with escort agencies.

    Ms. Lucie Angers: Yes, and that's one of the pros, because it would reconcile the hypocrisy behind the law that says yes to escort services or massage parlours. If you are richer, you can go to obtain sexual services for payment. It's not the case if you have to go on the street. It's certainly something the working group did recognize, but as I said, the problem is lack of consensus. We did have consensus, however, saying that the federal government, provinces, and municipalities have to talk together, because it's not a problem that the federal government or the provinces can address by themselves.

    The Chair: Thank you.

    Madam Torsney, would you like a question?

    Ms. Paddy Torsney (Burlington, Lib.): No. I apologize for being late for the committee. I feel I should probably lay low.

    My only hope is that we will hear from Senator Pearson on some of the work she's done on the issue of dealing with juveniles, because I think some changes could actually improve the situation and decrease the number of juveniles on the scene. So I'd be interested in making sure we hear from her.

    I don't know if you have any comments on that specific issue or if someone has already brought that issue up. You may have already.

    The Chair: Monsieur Ménard, you wanted to ask a question? And then Mr. Cadman.

    Ms. Paddy Torsney: Excuse me, could Lucie answer?

    The Chair: Pardon?

    Ms. Paddy Torsney: Ms. Angers is going to answer on that point.

    The Chair: Oh, sorry, yes.

    And then Mr. Cadman, and Mr. Ménard.

    Ms. Lucie Angers: Yes, we certainly have been working with Senator Pearson on a number of fronts. As you know, she was involved very much in the world summit on the commercial sexual exploitation of kids. We have been working with her in terms of the negotiations surrounding the optional protocol to the Convention on the Rights of the Child on the sale of children, on child prostitution, and on child pornography, and we have been keeping her informed of all the progress that has been made.

    Senator Pearson led a very good meeting organized by some youth involved in prostitution. I think it was three years ago, if I'm not mistaken. I know you were involved as well. She has been extremely active, even defending, recently, the different provisions...the work the government has been doing before the committee on the rights of the child. She would certainly be an excellent witness.

    The Chair: Thank you.

    Mr. Cadman is kindly allowing M. Ménard to ask his question.

[Translation]

    Mr. Réal Ménard: Where I live, every summer and spring there are about 150 sex workers operating. The fact is that even if one has no particular bias against this type of work, in the best of cases, it does disturb communities. So, we are seeking solutions that will allow us to attain two specific goals: prevent violence against the girls that engage in prostitution and ensure that we have peaceful communities.

    Prostitution is not about being on the street. Prostitution is not about social class. I hope we will invite a researcher from Concordia University, Ms. Shaver, to appear, because she has been looking at this issue for years now. It's important to remember that although there may be a connection between substance abuse and poverty, there can also be specific circumstances that arise and that some people who engage in prostitution don't use heroin at all.

    As I will be arguing throughout our work, I believe the current framework is completely unsuited to our attaining the goals that we have discussed, but we still have references. For example, in Montreal, just as in Vancouver and other cities, there are massage parlours. Some people equate massage parlours with prostitution. And yet the people who engage in that activity are doing so willingly. People aren't supposed to have sex in a massage parlour, but we know that they do.

    I would like you to talk about the legal status of massage parlours under the Criminal Code. For example, there are massage parlours on St. Catharine Street, and people accept that reality. As far as I'm concerned, we have to draw the line when it comes to child prostitution. My own view is that there is a segment of public opinion that will never accept the idea of adults paying to have sex with young women, but there is also a segment that says that if two consenting adults decide to have sex, provided that it isn't in public, legislators shouldn't continue to prohibit that kind of activity.

    So, I have two questions. First of all, is it your opinion that massage parlours are illegal under the Criminal Code, even if they have municipal permits? Second, there is no criminal prosecution of escort agencies. That is a whole different world that is quite fascinating. I have friends who work for escort agencies. They are academics who earn a very good living, but they do it for all kinds of reasons. The escort business is an absolutely fascinating social phenomenon. Would you say it is illegal under the Criminal Code? Do you have any information on the different levels of prostitution, from an academic standpoint, of course? I am assuming that nobody here is in a position to speak to this from the standpoint of a consumer, and that we are all looking at this as outsiders.

»  (1700)  

[English]

    Mr. Richard Mosley: It's rather awkward for us, in these circumstances, to comment. The reality is there's a difference between what the law says and the application of the law.

    We started the presentation by referring to the provisions of the Criminal Code offences under section 210, keeping or being an inmate in a bawdy house, and section 212, procuring or living on the avails. It's not very difficult to find a way to apply those provisions to either the maintenance of premises where sexual acts will be carried out for consideration, probably a bawdy house, under the terms of the Criminal Code, or making available escorts for consideration. That would likely be covered by one of the offences in section 212.

[Translation]

    Mr. Réal Ménard: Even though there are no charges laid against massage parlours in a municipality like Montreal—there were raids in the 1980s, but there aren't any now—you would say that based on your understanding, even though they may have municipal permits, massage parlours in the big cities should be covered by Section 210.

[English]

    The Chair: One more minute, Mr. Ménard.

    Mr. Richard Mosley: I want to be careful, because we're not here to offer legal advice to the police. They get their legal advice from their own lawyers. For one reason or another, they may choose not to enforce the existing provisions of the law in a particular municipality for a wide variety of reasons. They may exercise their discretion.

    If you're talking simply about where two people go consensually and it's not a question of payment, that may well fall outside the scope of the strict application of the bawdy house provision. There is little interest today in enforcing these provisions of the law where there are no complaints received.

    The Chair: Thank you.

    Madam Angers, you wanted to add something?

[Translation]

    Ms. Lucie Angers: Just to complete Mr. Mosley's comments, I would add that there is no doubt some provisions of the Criminal Code could apply if there were indecent behaviour or if the people involved were found to be engaging in this activity in what is defined in the Criminal Code as a common bawdy house. Indeed, the Supreme Court recently had to look at this issue in cases involving lap dancing, and determine what could be considered indecent when two consenting adults exchange money for sexual purposes. Is that covered under what we call an “indecent act”? Is it covered under the term “common bawdy house”?

    As Mr. Mosley was saying, it really depends on how we decide to enforce the legislation. It may apply in some cases and not apply in others. Massage parlours and escort agencies are not covered per se under the Criminal Code, unless this activity occurs in a common bawdy house or indecent acts are performed. It always comes down to a matter of enforcement where we're talking about specific cases.

[English]

    The Chair: Mr. Cadman.

    Mr. Chuck Cadman: I just wondered if you'd be able to give us some indication of the extent of the involvement of organized criminal gangs in prostitution, both domestic gangs and international entities, and if possible, I'd like a ballpark estimate on the kinds of revenues that are generated for those organizations from prostitution.

    Mr. Richard Mosley: In terms of scope and extent, no, not off the top of our heads today. I think there would be some information available on that from the National Coordinating Committee on Organized Crime, which is a federal-provincial group of officials from Criminal Intelligence Service Canada that would be able to point to the findings of various studies or efforts to enforce against organized criminal gangs. For example, the common supposition is that much of the prostitution in say rural Quebec is run by biker gangs, as is the drug problem.

    There was an issue in southern Ontario a few years ago where an eastern European organized crime group was alleged to be bringing in women from eastern Europe--Russia and the other countries of the former Soviet bloc--for the purposes of prostitution.

    Issues of that nature do appear from time to time, and are addressed in the annual reports of those agencies that are concerned directly with organized crime issues.

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    Mr. Chuck Cadman: Thank you, Madam Chair.

    The Chair: Thank you.

    Ms. Torsney.

    Ms. Paddy Torsney: On the last slide that was presented, it talked about the obligation to pay income tax. In Canada, anyone whose income is derived from prostitution is also supposed to be paying income tax. Do we have any stats on how many prostitutes...? I actually worked as a clerk in one of Revenue Canada's offices just at the end of high school, and I recall there were people who would come in, and it was sort of a big event. Everyone knew that was the day this particular individual was going to come in. Do we have stats on how many people live...?

    Mr. Richard Mosley: I'm not sure whether CCRA could assemble that information. We can ask them. But certainly, in conversation with them over the years, they've always said the same thing--that yes, people do acknowledge that their source of income is prostitution. I'm sure not everyone does.

    The Chair: Ms. Davies.

    Ms. Libby Davies: I just wanted to get at this question a little bit more, where you said enforcement is being driven by complaints. I think it is really evident of what is a huge contradiction, in terms of what's taken place. If these laws exist on the basis that prostitution is immoral or whatever.... On the one hand, we turn a blind eye to certain circumstances. It's clearly the on-street prostitution that is driving complaints, because that's where the visibility is, so that's where the pressure gets put on local police departments, and that's where the problem gets moved along to another neighbourhood.

    I just wonder, within the justice department, has there been a review of where enforcement is taking place and where it's not, and what the impact of that is? What is the harm that's being created in terms of, on the one hand, being apparently willing to allow soliciting and prostitution to take place and in effect allowing bawdy houses to exist, but on the other hand not? What are the harms resulting from either scenario? Has there been any review of that over the years?

    Mr. Richard Mosley: I'll ask my colleague as well, but my recollection is that in the research that was done for the standing committee's review in the late eighties, the focus was less on where the enforcement took place than against whom it took place. The large issue at that time was whether the police were discriminating in their enforcement by going after only the prostitutes. One of the things we very much wanted to know was whether they were being even-handed in the sense of enforcing against the customers as well. So there were data collected about that, but if your question relates to neighbourhoods....

    Ms. Libby Davies: Or just different aspects of the trade, whether it's escort agencies or massage parlours.

    You see, I think one of the problems is the focus has always been on the street trade, so that's where the enforcement has been. Historically, it was 90% against the prostitutes, and the customers basically got off scot-free. That has changed over the years. There was a shift in enforcement around that. I'm just wondering whether or not there's been an analysis about the impact of that, of enforcement in some areas but not in others--maybe neighbourhood by neighbourhood, but also within the different venues that are operating--in terms of the harms that are being created.

    I just have the sense that we don't.... In the analysis that's being done, it's just not clear where the analysis is coming from. Who is looking at whether these laws are working?

    My problem is we have dead bodies stacked up. Isn't that a problem? Isn't that a huge issue that should lead us to think that this law is a failure? I just don't understand why, even by the department, that's not being said.

»  (1710)  

    Ms. Lucie Angers: As I said, I think we did acknowledge at the FPT level that it was a concern. It was an escalating concern, for sure, because at the time there weren't that many. Between 1991 and 1995 there were 18 prostitutes who were involved in.... No, I'm sorry, these are not the right statistics. I have references I can point you to.

    But the problem you were referring to involving enforcement and how it takes place in a selective way—or one of the problems—is you don't have much complaint about bawdy houses or massage parlours or escort services, because nobody necessarily knows, and nobody really cares; therefore we don't know what's happening there. Also, if the police investigate, it's very costly, as you might guess, because you have all these resources you have to use—decoys and all that.

    The problem with street solicitation arises because it's obvious. We have complaints; therefore there is more enforcement. Then, the problem of violence against prostitutes is certainly the problem of these prostitutes who are on the street, who are presumably the ones who are killed and murdered, because they have a higher risk of being victimized.

    From that point of view, the correlation is made and the street solicitation law is enforced more. Section 213 is enforced more than section 210. In a way it does help the cause, but besides the investigation of these murders and how to address the problem, I think there's a much broader issue. It's not an enforcement problem. The enforcement of section 213 is being done because of complaints. But how do you solve the problem of the remote areas? If you're in a remote area you're not as protected, and the guy takes you somewhere in a car and you get murdered later on.

    Ms. Libby Davies: Exactly.

    Ms. Lucie Angers: Certainly that is a problem that needs to be addressed. It's more the social aspect of it: why are you on the street instead of being in the house? I don't think it's an enforcement problem as such.

    The Chair: Thank you, Ms. Davies. We don't have the time. I think we need to spend some time doing some very important work with regard to the committee itself.

    Ms. Torsney, did you feel that the question you asked was your chance at a question?

    Ms. Paddy Torsney: They've raised a bunch of issues—the remote locations and industrial areas that are now being used with less safety than the city streets. The issue we faced in our area is the people without status being manipulated by big bad guys—how we can crack down on that. People feel they can't speak out about it and are subject to extreme violence, I would argue.

    I think those are groups we need to agree as a committee we want to hear from, and perhaps we need to have these guys back as we develop some theories.

    The Chair: I'd like to thank you very much. It's been very interesting. Thank you.

    What I could do is suspend the meeting for about two minutes; then we could decide if we want to go in camera to deal with some of the issues concerning the committee itself.

    [Proceedings continue in camera]