I have read multiple local court reports recently in which the sentence included an order that the convicted person “submit a DNA sample to the national registry” and it struck me that it’s been six years almost to the day since I first wrote about Canada’s National DNA Data Bank (NDDB) and I wondered what had been happening with the institution itself and the laws governing it since May of 2017.
The inspiration for the initial story was the Cape Breton Regional Police Service’s infamous “John Be Gone” sting—a police operation that saw two female police officers posing as prostitutes in downtown Sydney over 10 days in the summer of 2015. The operation resulted in charges being laid against 27 men and the cops were so pleased with themselves, they did it again in the fall of 2018, laying an additional 18 charges. In both cases, the Cape Breton Post helpfully named and shamed—as in, full names, ages, places of residence—all those charged, including, of course, those eventually acquitted or found not guilty.
I intended to dive directly into the subject of the DNA Data Base but got side-tracked by developments with the laws that made John Be Gone possible in the first place—former Conservative justice minister Peter MacKay’s 2014 Protection of Communities and Exploited Persons Act (PCEPA)—so I’m going to do a two-parter, focusing first on PCEPA then on the DNA Data Base.
PCEPA
In 2013, in a case called Canada v. Bedford, the Supreme Court of Canada unanimously struck down three of the country’s prostitution laws as unconstitutional. As the Georgia Straight reported at the time:
…the country’s highest court ruled that laws prohibiting keeping a common bawdy house, living off the avails of prostitution, and communicating in public for the sale of sex violate sex workers’ charter guarantee to security of the person under section 7.
Writing for the court, Chief Justice Beverley McLachlin concluded that it was not necessary to determine if the communicating in public law also violated sex workers’ charter right to freedom of expression.
“The prohibitions all heighten the risks the applicants face in prostitution—itself a legal activity,” McLachlin wrote. “They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky—but legal—activity from taking steps to protect themselves from the risks.”
McLachlin noted in her judgement that the impact of these laws on the safety of sex workers was “grossly disproportionate” to the “possibility of nuisance caused by street sex work.”
As for the prohibition against “living on the avails of prostitution” the Court found that it:
…punishes the parasitic, exploitative conduct of pimps as well as those who could increase the safety and security of sex workers, such as legitimate drivers, managers or bodyguards. The Court further concluded that those who are involved in the business of commercial sex work, such as accountants or receptionists, were also punished by the provisions. Thus, the section, the Court concluded, included conduct that bears no relation to the purpose of preventing the exploitation of sex workers.
The court gave Parliament a year to enact new legislation and in 2014, MacKay produced Bill C-36 which he promised would “protect” sex workers and in case you doubted his sincerity, the CBC illustrated its story about the new legislation with this photo of MacKay, adjusting his spectacles and looking concerned:
Peter MacKay (Photo by Sean Kilpatrick, Canadian Press)
But PCEPA represented a Canadian version of the so-called “Nordic Model” of prostitution regulation which criminalizes those buying rather than those selling sexual services, and its aim, according to MacKay himself, was not so much to protect sex workers as to end sex work. MacKay called the law a “fundamental paradigm shift in approach,” telling the House of Commons Standing Committee on Justice and Human Rights that the goal of the PCEPA:
…is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it, and ultimately abolishing it to the extent possible.
PCEPA created four new prostitution-related crimes and “modernized” the existing crime of procurement:
A purchasing offense that criminalized “obtaining sexual services for consideration, or communicating in any place for that purpose.” (This was the charge used against the johns in Downtown Sydney)
An advertising offense that criminalized advertising the sale of sexual services.
A material benefit offense that criminalized “receiving money or other material benefit from the prostitution of others in exploitative circumstances, including in the context of a commercial enterprise that offers sexual services for sale.”
A procuring offense that criminalized “active involvement in the prostitution of others.”
A communicating offense that criminalized “Communicating for the purposes of offering or providing sexual services for consideration in public places that are or are next to school grounds, playgrounds or daycare centres.”
These laws—which Simon Fraser University researcher John Lowan characterized as the “institutionalized entrapment of men”—were hot out of the oven when the CBRPS used them as the basis for John Be Gone, but were they also half baked?
It depends who you ask.
Legal opinions
In April 2021, Ontario Superior Court Justice Phillip Sutherland declared the portions of MacKay’s laws relating to advertising, procurement and material benefit from sex work unconstitutional and of “no force and effect.” Sutherland basically argued that the new laws perpetuated rather than solved the problems that had led the Supreme Court to overturn the original prostitution laws in the first place. As the Toronto Star reported:
“The legislation allows commercial sex work to continue,” Sutherland wrote in his decision, finding that the law breaches the right of sex workers to life, liberty and security of the person.
“The legislation cannot stand in the path of commercial sex workers who take steps to protect themselves and their health from violence or harm… The scheme created by Parliament, I find, does exactly that: grossly limits or prevents sex workers from taking steps to protect their health and safety. And in so doing, makes the allowed activity more dangerous.”
The paper noted that it was the second time an Ontario judge had partially struck down the PCEPA as unconstitutional and it happened as “at least eight ongoing pending constitutional challenges over the same issue” were playing out in courts across the province.
But three other Superior Court Justices—G.B. Gambacorta in R. v. MacDonald, Jean-Louis Lemay in R. v. Williams and Catrina D. Braid in R. v. Maldonado Vallejos—argued that Sutherland’s decision was “plainly wrong” because he claimed PCEPA had legalized the sale of sexual services which, in their opinions, it did not.
These justices hold that s. 286.1 of PCEPE “criminalized both the purchase and the sale of sexual services,” that Parliament made “the entire transaction illegal” but:
…deliberately chose to provide immunity from prosecution to those who sell their own sexual services through the enactment of section 286.5, recognizing that they are victims of an exploitative industry, who need support and assistance, rather than blame and punishment…
(This isn’t the general understanding of the law, judging by the many media references I’ve seen like this one on CityNews, which explains that under PCEPA “selling sex is legal, but buying is not.”)
The Crown appealed Sutherland’s ruling and in February 2022, the Ontario Court of Appeal overturned his judgement, ruling that the laws in question did not violate sex workers’ section 7 Charter rights to life, liberty and security of the person.
But that didn’t end the controversy over PCEPA.
In October 2022, the Ontario Superior Court heard arguments in a constitutional challenge to MacKay’s laws brought by the Canadian Alliance for Sex Work Law Reform (CASWLR), which includes 25 sex-worker organizations across the country, along with five individual sex worker applicants and one former escort agency owner. Between October 3 and 7, Justice Robert F. Goldstein also heard from a long list of intervenors, which the CASWLR, in an infosheet about the case, categorized as either “Intervenors Describing the Harms of Sex Work Criminalization” or “Intervenors Arguing Sex Work Should Be Criminalized”:
Source: CASWLR
The CASWLR acknowledges its goal—to convince the courts to “strike down” the sex work criminal offenses—will take “many years” and that they will have to traverse multiple courts, but the group seems firm in its conviction that PCEPA is not protecting sex workers.
Justice Goldstein, who is hearing the case, has reserved his decision to review the “extensive” materials filed in the application. Miller Thompson, writing on the Lexology law blog in October 2022, said a written decision was expected “in several months’ time.”
Liberal opposition
Okay, that gives you an idea of where the courts are on PCEPA (all over the place), but where’s our government?
As an opposition MP in 2014, Justin Trudeau joined his fellow Liberals in voting against MacKay’s prostitution laws and on the campaign trail in 2015, according to Global News, “a number of MPs and Liberal candidates talked about the need to reform the laws,” including candidate—later finance minister—Bill Morneau, who told a panel in Toronto that there was “no disagreement” that Bill C-36 should be repealed:
“We would want to get rid of this bill,” Morneau said in response to a question about what each party would do about the law. “It’s a bill that puts people in danger, and we would not stand for it.”
After the Liberals formed government in October 2015, Global says former justice minister Jody Wilson-Raybould told reporters that she was “committed” to reviewing prostitution laws “but the issue was quickly dropped.”
Jelena Vermilion, executive director of Sex Workers’ Action Program (SWAP), Hamilton, speaking about the challenge to Canada’s anti-prostitution laws. (Source: @ButterflyCSW/Twitter)
In 2018, the Young Liberals of Canada called on the party to repeal the sex work laws, but the position was not mentioned in the Liberals’ 2019 platform nor did it come up in 2021.
The government even dragged its feet on conducting the review of the law that was supposed to have taken place five years after its implementation—that is, in 2019. It wasn’t until the spring of 2022—after CAWSLR launched its constitutional challenge—that the Standing Committee on Justice and Human Rights held an eight-session discussion on PCEPA during which it heard from 48 witnesses. In June, the committee issued a report entitled: “Preventing Harm in the Canadian Sex Industry: A Review of the Protection of Communities and Exploited Persons Act.” (Fun Fact: The list of MPs who participated in the sessions includes Sydney-Victoria MP Jaime Battiste.)
Human trafficking?
I should probably note here that the committee was very clear about its focus:
While many witnesses and briefs discussed human trafficking, the Committee’s study was focused on voluntary sex work by adults. This and other committees have previously studied human trafficking. Some witnesses also mentioned child exploitation. The Committee condemns any such behaviour in the strongest terms and recognizes the need for society to appropriately respond to these crimes. However, trafficking and child exploitation are not the focus of the current review of the Criminal Code (Code) provisions relating to voluntary sex work by adults. For this reason, while they are discussed at some points because of the arguments made by witnesses, they are not dealt with comprehensively in this report.
This point was reiterated by PIVOT, a Vancouver-based sex workers’ rights organizations, which sized up the review process this way:
Much like the hearings on Bill C-36 before it became law, witnesses and briefs were sharply divided between those who spoke or wrote in favour of the PCEPA, and those who were against it. The rights and safety of sex workers was not centered in the process or the proceedings. One issue that marred the proceedings were the number of individuals presenting information about human trafficking when Canada’s human trafficking laws were not at issue during this consultation, only the sex work laws. This is the result of years of conflation of sex work with human trafficking.
Discussing the negative effects of PCEPA on sex workers back in 2019, Sandra Wesley, executive director of Montreal sex work advocacy group Stella, told Global that Montreal police were encouraging taxi drivers and hotel employees to report sex workers to police:
“This is done under the guise of fighting exploitation, which is a vague term that seems to [suggest that] all sex workers are victims of exploitation,” she said.“Activists who are fighting against the existence of sex work have figured out a long time ago that mixing up sex work and trafficking is a very effective strategy to justify police repression to justify laws that are more repressive.”
PIVOT notes that despite the Committee’s insistence that human trafficking was not its focus, four recommendations on the topics of trafficking and child exploitation managed to creep into the final report, “further evidence,” the group says, “that government policy-makers continue to conflate trafficking with sex work.”
PIVOT argues the Committee didn’t go far enough in its recommendations (of which there were 17) but nevertheless welcomed Recommendation 2:
That the Government of Canada recognize that protecting the health and safety of those involved in sex work is made more difficult by the framework set by the Protection of Communities and Exploited Persons Act and acknowledge that, in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous.
The group called this “an extraordinary admission that these laws cause harm to sex workers.”
Pros
PIVOT also appreciated recommendations that “support the health, safety and human rights of sex workers.” The most striking being a recommendation to amend PCEPA to “remove several laws which have harmful effects on sex workers.” Recommendation 3 suggests removing sections 213 and 286.4 of the Criminal Code.
- Section 213 directly targets sex workers for enforcement action if they are stopping or impeding traffic or working near a schoolground, playground or daycare centre. This law applies only to street-based sex workers and causes them to move to more darkly lit, less populated areas in order to avoid police detection. It can also push sex workers to rush negotiations with clients in order to get off the street quickly.
- Section 286.4 prohibits advertising the sexual services of another person. This makes it more difficult for sex workers to advertise which, in turn, affects their ability to earn a living.
PIVOT was also pleased with a recommendation to repeal sections of the Immigration and Refugee Protection Regulations that “unfairly put migrant sex workers at elevated risk of violence and danger by making them unable to report these incidents without fear of deportation.”
Recommendations addressing financial support for sex workers were also well received:
Recommendation 15 urges the Government to “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.” Sex workers have been saying for years that there are a number of push and pull factors that cause people to engage in sex work and that increasing choice for marginalized people would mean fewer people engaging in sex work as a last resort. Recommendation 16 asks the Government for more funding for organizations providing services to sex workers, “particularly those operated by sex workers themselves.” By, with, and for organizations continue to struggle to find funding so this is a welcome recommendation.
Cons
Ultimately, though, PIVOT felt these “positive recommendations” were “undercut” by Recommendation 1, which states that “prior to any amendments being made to PCEPA, extensive consultation must be undertaken” and Recommendation 12, which calls for a “gender-based analysis.”
This means that repealing these provisions will not happen until the House has responded to this report and extensive consultations have taken place. But who knows when those consultations will occur, if ever? After all, the PCEPA review started three years late which clearly shows that sex workers are not a government priority.
The government’s response to the committee’s report, in the form of a letter from Justice Minister and Attorney General David Lametti, arrived on 20 October 2022 and I’m guessing neither PIVOT nor any other advocates of PCEPA repeal were impressed by its contents.
Lametti’s response includes an entire section entitled “Strengthening the criminal law’s response to violence and exploitation” and the phrase “human trafficking” appears 20 times in the six-page letter.
The government seems amenable to “supporting sexual service providers,” although it refers to them as “victims of crime” and seems to focus more on those looking to exit the sex trade than those who wish to remain within it.
Lametti says they will explore “possible policy options” to address the Committee’s concerns including “repealing the Immigration and Refugee Protection Regulations that place foreign national sexual service providers at risk of deportation.”
But there is no commitment to removing sections 213 and 286.4 of the Criminal Code nor any suggestion this government will “acknowledge that, in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous.”
And that’s where the government stands on PCEPA today, which is to say, pretty much exactly where the Stephen Harper government stood on PCEPA in 2014.
