Saskatoon Criminal Defence Lawyers Association

Transcription

1 Saskatoon Criminal Defence Lawyers Association st Street East Andrew Mason President SASKATOON, SK S7K 0B4 Tim Nolin Vice President Telephone: [306] Michael Owens Vice President Fax: [306] Chris Lavier Program Director George Green Treasurer Web: Jessie Buydens Secretary SUBMISSION TO THE SENATE COMMITTEE RE: Bill C-36 (anti-prostitution bill) Senate hearings December The Saskatoon Criminal Defence Lawyers Association is a non-profit organization whose members consist of approximately 50 Saskatoon and area criminal defence lawyers. I am writing to you in my capacity as President of our organization regarding our concerns about Bill C-36 in the hope that you may include them in your submissions to the Senate Committee in the hearing that we understand is set for December 6, At least it was until the bill was fast-tracked and passed by the Senate this week. I am not sure of the status of these public hearings now. Our concerns relate to the problems that we see with the drafting of this legislation and with what we see as the failure of the legislation to adequately provide reasonable legal protections to accused persons including the right to full answer and defence. We start with the simple proposition that Criminal Code offences should clearly describe the conduct that is prohibited. We have serious concerns about this legislation: 1. The bill fails to define some important terms such as sexual services (s ), and legitimate living arrangement (s (4)). Sexual Services: While the term sexual services exists in the current Criminal Code, it is used in the context of obtaining the sexual services of a person under the age of eighteen years (s. 212(4)) and obtaining the sexual services of a prostitute (s. 213). In these contexts the prohibited conduct is reasonably clear. Sexual services may consist of a broad range of activities from making visual recordings of sexual activity and stripping, which both involve exposing the human body for purposes of sexual gratification of the viewer, to engaging in intimate sexual contact. Under s. 212(4), obtaining or communicating for the purpose of obtaining such services from a person under eighteen is prohibited. Also communicating in a public place for the purpose of obtaining such services from a prostitute is prohibited although the transactions and services themselves were not prohibited where the person is over eighteen years old. In these cases, the prohibited conduct is reasonably clear. The new amendments will make it an offence to obtain, or to communicate for the purpose of obtaining, from anyone, anywhere, sexual services for

2 Page 2 consideration. If sexual services for underage persons is to include the use of persons under the age of 18 in pornography or working as strippers or erotic/exotic dancers for purposes of section 212(4), it is difficult to understand why the same term should have a different meaning in s in relation to obtaining of any sexual service for consideration. Is it Parliament s intention to make it a criminal offence to pay adult models or actors involved in the production of erotic visual material or to prohibit paying adults to perform erotic dance? If the courts should choose to restrict the scope of sexual services in s this will diminish the scope of that term in s. 212(4) and end up providing less protection for young people under the latter section. We suggest that a different term other than sexual services be used in s and that it be defined in the Code to make it clear as to the services of a sexual nature that are prohibited (and those that are not, if any). Legitimate living arrangement: Section makes it an offence to receive a financial or other material benefit knowing that it is obtained, directly or indirectly from the commission of an offence under s (obtaining sexual services for consideration). An exemption from criminal liability under this section is given to: (s (4)) a person who receives the benefit (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived; Legitimate living arrangement is not defined in the Criminal Code so it will be left up to the judiciary to determine what this means. It is probable that this section was drafted based on the ruling of the Court of Appeal of Ontario in R. v. Barrow (2001), 146 O.A.C. 363, 155 C.C.C. (3d) 362, 42 C.R. (5th) 203, 54 O.R. (3d) 417 which stated: In the case of a person living with a prostitute, one must turn to indicia which will serve to distinguish between legitimate living arrangements between room-mates or spouses, and living on the avails of prostitution. When a person receives money directly or indirectly from a prostitute in exchange for services rendered, the test, according to Shaw, is whether the service is rendered to the prostitute because she is a prostitute or, alternatively, whether the same service would be rendered to anybody else. In the case of living arrangements the test obviously must be modified. In my view, the proper question is whether the accused and the prostitute had entered into a normal and legitimate living arrangement which included a sharing of expenses for their mutual benefit or whether, instead, the accused was living parasitically on the earnings of the prostitute for his own advantage. The occasional buying of a doughnut or a cup of coffee would hardly amount to feeding a parasite in the ordinary acceptance of that word. The Barrow decision relates to living off the avails of prostitution. With a broad interpretation of sexual services, a living arrangement with a person

3 Page 3 engaged in providing sexual services for consideration, such as a pornographic actor or stripper, who is paying all or most of the costs of that living arrangement, could expose the dependent person to liability under s We also have concerns about the new minimum penalties, particularly the four year minimum under s (1)(b). The new human trafficking provision will make it a criminal offence punishable by a minimum of four years for any conduct involving control or influence over the movements of a person for purposes of exploitation of that person. Section of the present Criminal Code reads as follows: (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable (a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or (b) to imprisonment for a term of not more than fourteen years in any other case. The amendment introduced in Bill C-36 will provide minimum punishments: (a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or (b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case. The problem here is that the range of exploitation that can exist is very broad. If a person recruits, say, foreign workers to work in a Canadian shop to make garments for the purpose of exploiting their labour, for example by making excessive profit and requiring them to work long hours without paying overtime or charging them excessively for room and board, he or she may be caught by this section. Such a person might be liable to a fine, suspended sentence or perhaps a light jail term under the current law. With the amendment they will receive a minimum of four years imprisonment. The result may also be that people who commit acts of human exploitation that are of a relatively less serious nature will not be charged at all, leaving the victims with less protection than they have now.

4 Page 4 We also have concerns that Bill C-36 does not sufficiently address the constitutional issues raised in the R. v. Bedford, [2013] 3 S.C.R but we will restrict our comments at this stage to the drafting of this legislation. Dated at Saskatoon, Saskatchewan this 17 th day of November, 2014 Andrew Mason President

5 Saskatoon Criminal Defence Lawyers Association st Street East Andrew Mason President SASKATOON, SK S7K 0B4 Tim Nolin Vice President Telephone: [306] Michael Owens Vice President Fax: [306] Chris Lavier Program Director George Green Treasurer Web: Jessie Buydens Secretary SUBMISSION TO THE SENATE COMMITTEE RE: Bill C-36 (anti-prostitution bill) Senate hearings December The Saskatoon Criminal Defence Lawyers Association is a non-profit organization whose members consist of approximately 50 Saskatoon and area criminal defence lawyers. I am writing to you in my capacity as President of our organization regarding our concerns about Bill C-36 in the hope that you may include them in your submissions to the Senate Committee in the hearing that we understand is set for December 6, At least it was until the bill was fast-tracked and passed by the Senate this week. I am not sure of the status of these public hearings now. Our concerns relate to the problems that we see with the drafting of this legislation and with what we see as the failure of the legislation to adequately provide reasonable legal protections to accused persons including the right to full answer and defence. We start with the simple proposition that Criminal Code offences should clearly describe the conduct that is prohibited. We have serious concerns about this legislation: 1. The bill fails to define some important terms such as sexual services (s ), and legitimate living arrangement (s (4)). Sexual Services: While the term sexual services exists in the current Criminal Code, it is used in the context of obtaining the sexual services of a person under the age of eighteen years (s. 212(4)) and obtaining the sexual services of a prostitute (s. 213). In these contexts the prohibited conduct is reasonably clear. Sexual services may consist of a broad range of activities from making visual recordings of sexual activity and stripping, which both involve exposing the human body for purposes of sexual gratification of the viewer, to engaging in intimate sexual contact. Under s. 212(4), obtaining or communicating for the purpose of obtaining such services from a person under eighteen is prohibited. Also communicating in a public place for the purpose of obtaining such services from a prostitute is prohibited although the transactions and services themselves were not prohibited where the person is over eighteen years old. In these cases, the prohibited conduct is reasonably clear. The new amendments will make it an offence to obtain, or to communicate for the purpose of obtaining, from anyone, anywhere, sexual services for

6 Page 2 consideration. If sexual services for underage persons is to include the use of persons under the age of 18 in pornography or working as strippers or erotic/exotic dancers for purposes of section 212(4), it is difficult to understand why the same term should have a different meaning in s in relation to obtaining of any sexual service for consideration. Is it Parliament s intention to make it a criminal offence to pay adult models or actors involved in the production of erotic visual material or to prohibit paying adults to perform erotic dance? If the courts should choose to restrict the scope of sexual services in s this will diminish the scope of that term in s. 212(4) and end up providing less protection for young people under the latter section. We suggest that a different term other than sexual services be used in s and that it be defined in the Code to make it clear as to the services of a sexual nature that are prohibited (and those that are not, if any). Legitimate living arrangement: Section makes it an offence to receive a financial or other material benefit knowing that it is obtained, directly or indirectly from the commission of an offence under s (obtaining sexual services for consideration). An exemption from criminal liability under this section is given to: (s (4)) a person who receives the benefit (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived; Legitimate living arrangement is not defined in the Criminal Code so it will be left up to the judiciary to determine what this means. It is probable that this section was drafted based on the ruling of the Court of Appeal of Ontario in R. v. Barrow (2001), 146 O.A.C. 363, 155 C.C.C. (3d) 362, 42 C.R. (5th) 203, 54 O.R. (3d) 417 which stated: In the case of a person living with a prostitute, one must turn to indicia which will serve to distinguish between legitimate living arrangements between room-mates or spouses, and living on the avails of prostitution. When a person receives money directly or indirectly from a prostitute in exchange for services rendered, the test, according to Shaw, is whether the service is rendered to the prostitute because she is a prostitute or, alternatively, whether the same service would be rendered to anybody else. In the case of living arrangements the test obviously must be modified. In my view, the proper question is whether the accused and the prostitute had entered into a normal and legitimate living arrangement which included a sharing of expenses for their mutual benefit or whether, instead, the accused was living parasitically on the earnings of the prostitute for his own advantage. The occasional buying of a doughnut or a cup of coffee would hardly amount to feeding a parasite in the ordinary acceptance of that word. The Barrow decision relates to living off the avails of prostitution. With a broad interpretation of sexual services, a living arrangement with a person

7 Page 3 engaged in providing sexual services for consideration, such as a pornographic actor or stripper, who is paying all or most of the costs of that living arrangement, could expose the dependent person to liability under s We also have concerns about the new minimum penalties, particularly the four year minimum under s (1)(b). The new human trafficking provision will make it a criminal offence punishable by a minimum of four years for any conduct involving control or influence over the movements of a person for purposes of exploitation of that person. Section of the present Criminal Code reads as follows: (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable (a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or (b) to imprisonment for a term of not more than fourteen years in any other case. The amendment introduced in Bill C-36 will provide minimum punishments: (a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or (b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case. The problem here is that the range of exploitation that can exist is very broad. If a person recruits, say, foreign workers to work in a Canadian shop to make garments for the purpose of exploiting their labour, for example by making excessive profit and requiring them to work long hours without paying overtime or charging them excessively for room and board, he or she may be caught by this section. Such a person might be liable to a fine, suspended sentence or perhaps a light jail term under the current law. With the amendment they will receive a minimum of four years imprisonment. The result may also be that people who commit acts of human exploitation that are of a relatively less serious nature will not be charged at all, leaving the victims with less protection than they have now.

8 Page 4 We also have concerns that Bill C-36 does not sufficiently address the constitutional issues raised in the R. v. Bedford, [2013] 3 S.C.R but we will restrict our comments at this stage to the drafting of this legislation. Dated at Saskatoon, Saskatchewan this 17 th day of November, 2014 Andrew Mason President

9 Saskatoon Criminal Defence Lawyers Association st Street East Andrew Mason President SASKATOON, SK S7K 0B4 Tim Nolin Vice President Telephone: [306] Michael Owens Vice President Fax: [306] Chris Lavier Program Director George Green Treasurer Web: Jessie Buydens Secretary SUBMISSION TO THE SENATE COMMITTEE RE: Bill C-36 (anti-prostitution bill) Senate hearings December The Saskatoon Criminal Defence Lawyers Association is a non-profit organization whose members consist of approximately 50 Saskatoon and area criminal defence lawyers. I am writing to you in my capacity as President of our organization regarding our concerns about Bill C-36 in the hope that you may include them in your submissions to the Senate Committee in the hearing that we understand is set for December 6, At least it was until the bill was fast-tracked and passed by the Senate this week. I am not sure of the status of these public hearings now. Our concerns relate to the problems that we see with the drafting of this legislation and with what we see as the failure of the legislation to adequately provide reasonable legal protections to accused persons including the right to full answer and defence. We start with the simple proposition that Criminal Code offences should clearly describe the conduct that is prohibited. We have serious concerns about this legislation: 1. The bill fails to define some important terms such as sexual services (s ), and legitimate living arrangement (s (4)). Sexual Services: While the term sexual services exists in the current Criminal Code, it is used in the context of obtaining the sexual services of a person under the age of eighteen years (s. 212(4)) and obtaining the sexual services of a prostitute (s. 213). In these contexts the prohibited conduct is reasonably clear. Sexual services may consist of a broad range of activities from making visual recordings of sexual activity and stripping, which both involve exposing the human body for purposes of sexual gratification of the viewer, to engaging in intimate sexual contact. Under s. 212(4), obtaining or communicating for the purpose of obtaining such services from a person under eighteen is prohibited. Also communicating in a public place for the purpose of obtaining such services from a prostitute is prohibited although the transactions and services themselves were not prohibited where the person is over eighteen years old. In these cases, the prohibited conduct is reasonably clear. The new amendments will make it an offence to obtain, or to communicate for the purpose of obtaining, from anyone, anywhere, sexual services for

10 Page 2 consideration. If sexual services for underage persons is to include the use of persons under the age of 18 in pornography or working as strippers or erotic/exotic dancers for purposes of section 212(4), it is difficult to understand why the same term should have a different meaning in s in relation to obtaining of any sexual service for consideration. Is it Parliament s intention to make it a criminal offence to pay adult models or actors involved in the production of erotic visual material or to prohibit paying adults to perform erotic dance? If the courts should choose to restrict the scope of sexual services in s this will diminish the scope of that term in s. 212(4) and end up providing less protection for young people under the latter section. We suggest that a different term other than sexual services be used in s and that it be defined in the Code to make it clear as to the services of a sexual nature that are prohibited (and those that are not, if any). Legitimate living arrangement: Section makes it an offence to receive a financial or other material benefit knowing that it is obtained, directly or indirectly from the commission of an offence under s (obtaining sexual services for consideration). An exemption from criminal liability under this section is given to: (s (4)) a person who receives the benefit (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived; Legitimate living arrangement is not defined in the Criminal Code so it will be left up to the judiciary to determine what this means. It is probable that this section was drafted based on the ruling of the Court of Appeal of Ontario in R. v. Barrow (2001), 146 O.A.C. 363, 155 C.C.C. (3d) 362, 42 C.R. (5th) 203, 54 O.R. (3d) 417 which stated: In the case of a person living with a prostitute, one must turn to indicia which will serve to distinguish between legitimate living arrangements between room-mates or spouses, and living on the avails of prostitution. When a person receives money directly or indirectly from a prostitute in exchange for services rendered, the test, according to Shaw, is whether the service is rendered to the prostitute because she is a prostitute or, alternatively, whether the same service would be rendered to anybody else. In the case of living arrangements the test obviously must be modified. In my view, the proper question is whether the accused and the prostitute had entered into a normal and legitimate living arrangement which included a sharing of expenses for their mutual benefit or whether, instead, the accused was living parasitically on the earnings of the prostitute for his own advantage. The occasional buying of a doughnut or a cup of coffee would hardly amount to feeding a parasite in the ordinary acceptance of that word. The Barrow decision relates to living off the avails of prostitution. With a broad interpretation of sexual services, a living arrangement with a person

11 Page 3 engaged in providing sexual services for consideration, such as a pornographic actor or stripper, who is paying all or most of the costs of that living arrangement, could expose the dependent person to liability under s We also have concerns about the new minimum penalties, particularly the four year minimum under s (1)(b). The new human trafficking provision will make it a criminal offence punishable by a minimum of four years for any conduct involving control or influence over the movements of a person for purposes of exploitation of that person. Section of the present Criminal Code reads as follows: (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable (a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or (b) to imprisonment for a term of not more than fourteen years in any other case. The amendment introduced in Bill C-36 will provide minimum punishments: (a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or (b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case. The problem here is that the range of exploitation that can exist is very broad. If a person recruits, say, foreign workers to work in a Canadian shop to make garments for the purpose of exploiting their labour, for example by making excessive profit and requiring them to work long hours without paying overtime or charging them excessively for room and board, he or she may be caught by this section. Such a person might be liable to a fine, suspended sentence or perhaps a light jail term under the current law. With the amendment they will receive a minimum of four years imprisonment. The result may also be that people who commit acts of human exploitation that are of a relatively less serious nature will not be charged at all, leaving the victims with less protection than they have now.

12 Page 4 We also have concerns that Bill C-36 does not sufficiently address the constitutional issues raised in the R. v. Bedford, [2013] 3 S.C.R but we will restrict our comments at this stage to the drafting of this legislation. Dated at Saskatoon, Saskatchewan this 17 th day of November, 2014 Andrew Mason President