Standing Committee on Justice and Human Rights Releases Report on the Protection of Communities and Exploited Persons Act
In June 2022, the Standing Committee on Justice and Human Rights (JUST) released its report[1] on its review of the Protection of Communities and Exploited Persons Act (PCEPA).[2] The report is entitled Preventing Harm in the Canadian Sex Industry: A Review of the Protection of Communities and Exploited Persons Act. This report is divided into 10 chapters and makes 17 recommendations to the Government of Canada regarding the PCEPA.[3]
Christian Legal Fellowship (CLF) submitted a detailed legal brief (English, French) to the JUST Committee. CLF’s brief discussed the relationship between human trafficking, exploitation, and prostitution, emphasizing the ways that the PCEPA fulfills Canada’s international legal obligations to combat human trafficking and sexual exploitation. CLF’s brief is referenced in the JUST Committee’s report, both in relation to Canada’s legal obligations and the need for consistent implementation of the law.[4]
However, the JUST Committee emphasized at the outset that the report’s focus is on “voluntary sex work” and that “trafficking and child exploitation are not the focus of the current review”. This, commenters have observed, ignores important considerations. For example, Prof. Debra Haak of Queen’s Faculty of Law noted on Twitter that “This reflects a fundamental misunderstanding of PCEPA and criminal laws enacted to give the policy approach effect. PCEPA is founded on acknowledging a link exists between a market for sexual services and trafficking, and recognizing the impact of prostitution on women and girls.” Prof. Haak goes on to state: “Hopefully as the government considers its response to the report and the recommendations and begins to undertake preliminary work, they take into account the impacts of the commercial exchange of sex and laws associated with it on all of those Canadians who may be impacted.”
The JUST COMMITTEE’s REPORT
The JUST Committee began its report by reviewing the Canada (Attorney General) v Bedford[5] decision, where the Supreme Court of Canada struck down three provisions of the Criminal Code—sections 210 (criminalizing bawdy-houses), 212(1)(j) (criminalizing living on the avails of prostitution), and 213(1)(c) (criminalizing communication in public for the purpose of offering, providing, or obtaining prostitution)—on the basis that they unjustifiably limited section 7 of the Charter.[6]
The federal government responded to Bedford by introducing the PCEPA, which was passed on 6 November 2014.[7] Unlike the previous provisions, the PCEPA focused on reducing the demand for prostitution, recognizing “the social harm caused by the objectification of the human body and the commodification of sexual activity” and seeking to protect individuals and communities from the risks and harms associated with prostitution, which the legislation describes as a form of exploitation.[8]
At the outset, the JUST Committee stated:
While some individuals in the sex industry can maintain higher degrees of control and autonomy, we also acknowledge that is not the case for all. The Committee recognizes the importance of hearing the range of experiences individuals have with the sex industry and have incorporated these perspectives, with particular attention to the testimonies of those with lived experience and peer-reviewed research, into this review of PCEPA.[9]
Therefore, the JUST Committee’s first recommendation to the federal government is to undertake “extensive consultation” prior to making any amendments to the PCEPA or developing any related programs or policies.[10]
The PCEPA is a variant of the Nordic Model, which, in the words of the Ontario Court of Appeal, “views the sex trade as a form of sexual exploitation” and “targets those who create the demand for prostitution and those who capitalize on it”, but generally does not criminalize the sale of sexual services.[11] However, the Committee found that sections 213 and 286.4 of the Criminal Code—the provisions prohibiting communicating in public places for the purposes of prostitution—“still criminalize individuals solely for selling their own sexual services.”[12] The JUST Committee noted concerns that, because of these provisions, “sex workers rush to get in the car rather than negotiating with clients from a safer position outside the car” and “go to less safe areas to be away from the places they are not allowed to solicit.”[13] As a result, the JUST Committee recommended that the federal government:
“recognize that protecting the health and safety of those involved in sex work is made more difficult by the framework set by the [PCEPA] and acknowledge that, in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous”;[14]
amend the PCEPA “by introducing legislation to repeal sections 213 and 286.4 of the Criminal Code”;[15]
“continue to monitor court cases pertaining to the provisions of the Criminal Code concerning sex work between consenting adults”;[16] and
“encourage data sharing about the sex industry in Canada, and support study into discrepancies in data and conclusions on the topic identified during the Committee’s study.”[17]
The JUST Committee then briefly summarized witness testimony regarding the relationship between sex work, exploitation, and human trafficking.[18] The JUST Committee noted that, while it was “sympathetic to the challenges faced by police and prosecutors in proving exploitation and trafficking”, it was “concerned that witnesses are saying that sex work-related offences are necessary because it is too difficult to get convictions for trafficking and other offences”.[19] The Committee therefore recommended that the federal government:
“take action to address issues of exploitation and trafficking of women and children by strengthening other measures in the Criminal Code where appropriate, by making additional resources available to victims and to law enforcement agencies working to combat exploitation, and by considering making coercive and controlling behavior in intimate partner relationships a criminal offence”[20] and
“introduce legislation to strengthen the Criminal Code provisions on exploitation and human trafficking prior to making any legislative changes aimed at decriminalizing sex work.”[21]
The JUST Committee also outlined evidence of mistrust of police and recommended that the federal government explore “best practices” for building trust between police and sex workers.[22]
Implementation and enforcement was another area of discussion, with many witnesses—including CLF—expressing “that it was difficult to assess the impact of PCEPA or have reliable statistics because the act has not been fully implemented across the country.”[23] The Committee therefore recommended that the federal government study how to encourage and ensure more consistent application of the PCEPA.[24]
The report went on to study the experiences of Indigenous, migrant, and racialized populations. Among other recommendations, the JUST Committee suggested that the federal government:
“repeal sections 183(1)(b.1), 196.1(a), 200(3)(g.1), and 203(2)(a) of the Immigration and Refugee Protection Regulations, which unfairly put migrant sex workers at elevated risk of violence and danger by making them unable to report these incidents without fear of deportation”;[25] and
“consider how to best address the exploitation of migrant sex workers and to prevent findings of inadmissibility and deportation when such individuals report being victims of crime.”[26]
The JUST Committee identified the importance of research, education, and training “in addressing sexual exploitation, addressing stigma related to sex work and improving safety within the sex industry.”[27] The report stated:
The Committee acknowledges that education is an essential component to prevent sexual exploitation and promote the safety of sex workers. We recognize how the stigmatization of sex work affects the lives, health and working conditions of many in the sex industry. Public awareness on these matters is a critical component to protect the vulnerable, ensure that entry into the industry is by choice and guarantee the human rights of sex workers. Equally, we heard extensive testimony about the challenging relationship between sex worker communities and law enforcement. We believe this points to the need for research into what would improve the relationship, including best practices in training and other measures mentioned above, such as considering amending or repealing PCEPA.[28]
On this basis, the Committee recommended that the federal government:
“invest in and support programs […] to address the root causes for entering sex work to make entry into the industry a real choice and to protect the vulnerable”;[29]
“provide additional financial support to organizations that provide non-judgmental and trauma-informed services to sex workers, and particularly those operated by sex workers themselves”;[30] and
“invest in and support the provision of additional social and legal supports for vulnerable youth at risk of sexual exploitation and individuals who wish to leave the sex industry”.[31]
The Committee further recommended that governments at all levels “agree on the funding needed for social programs related to sex workers’ health and safety” before proposing any legislative changes to the PCEPA.[32]
Next steps
It is encouraging that the JUST Committee has endorsed further research, consultation, and support, as well as enforcement of the PCEPA, prior to pursuing any amendments to the legislation. CLF will continue to monitor challenges to the constitutionality of the PCEPA and engage in policy conversations as they pertain to human trafficking and sexual exploitation.
Further reading:
CLF’s participation in the International Centre for Criminal Law Reform & Criminal Justice Policy’s consultations re the Palermo Protocol
CLF’s submissions to the Standing Committee on Access to Information, Privacy and Ethics re online exploitation
Contributions from Garifalia Milousis, Vivian Clemence, and Derek Ross.
REFERENCES:
[1] House of Commons, Standing Committee on Justice and Human Rights, Preventing Harm in the Canadian Sex Industry: A Review of the Protection of Communities and Exploited Persons Act (June 2022) (Chair: Randeep Sarai), online: ≤https://www.ourcommons.ca/Content/Committee/441/JUST/Reports/RP11891316/justrp04/justrp04-e.pdf≥ [JUST Committee Final Report 2022].
[2] Protection of Communities and Exploited Persons Act, SC 2014, c 25 [PCEPA].
[3] JUST Committee Final Report 2022, supra note 1 at 1–4.
[4] Ibid at 16, 44.
[5] Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101.
[6] JUST Committee Final Report 2022, supra note 1 at 6–9.
[7] Ibid at 9.
[8] PCEPA, supra note 2, preamble.
[9] JUST Committee Final Report 2022, supra note 1 at 12.
[10] Ibid (“Recommendation 1”).
[11] R v NS, 2022 ONCA 160 at para 21.
[12] JUST Committee Final Report 2022, supra note 1 at 32.
[13] Ibid.
[14] Ibid at 37 (“Recommendation 2”).
[15] Ibid at 38 (“Recommendation 3”).
[16] Ibid (“Recommendation 4”).
[17] Ibid (“Recommendation 5”).
[18] Ibid at 38–40.
[19] Ibid at 40.
[20] Ibid (“Recommendation 6”).
[21] Ibid (“Recommendation 7”).
[22] Ibid at 40–44 (“Recommendation 8”).
[23] Ibid at 44. See also Christian Legal Fellowship, “Brief of the Christian Legal Fellowship to The Standing Committee on Justice and Human Rights regarding the Review of the Protection of Communities and Exploited Persons Act” (2 March 2022) at 7–10, online: ≤https://www.ourcommons.ca/Content/Committee/441/JUST/Brief/BR11616569/br-external/ChristianLegalFellowship-e.pdf≥.
[24] JUST Committee Final Report 2022, supra note 1 at 45 (“Recommendation 9”).
[25] Ibid at 49 (“Recommendation 10”).
[26] Ibid at 49–50 (“Recommendation 11”).
[27] Ibid at 50.
[28] Ibid at 54.
[29] Ibid at 58 (“Recommendation 15”).
[30] Ibid (“Recommendation 16”).
[31] Ibid (“Recommendation 17”).
[32] Ibid (“Recommendation 14”).