Protecting exploited persons

  • May 31, 2022

The Municipal Law and Criminal Justice Sections of the Canadian Bar Association, in a letter to the Standing Committee on Justice and Human Rights, offer comments on the review of the Protection of Communities and Exploited Persons Act.

This Act, which came into force in 2014, amended the Criminal Code in response to the Bedford decision from the Supreme Court of Canada, which had found the previous law too broad. The Act now under review aimed to strike a balance by allowing public communications for the purpose of selling or buying sexual services except in public places near schools, playgrounds or daycare centres – which need to be properly and clearly defined.

The CBA Sections recommend a few more changes to make the Act better.

Purchase of adult non-exploitive sexual services

The CBA Sections recommend removing the section of the Act that criminalizes consensual and non-exploitative sexual services transactions. “While the sale of sexual services is not criminalized, and sex workers themselves are not criminally liable under section 286.1, the illegality of the transaction itself presents barriers to sex workers’ ability to work safely,” the letter reads.

That same section also makes it hard for sex workers to screen clients who know they are breaking the law. In addition it makes it difficult to rent or lease safe indoor space when leases or condominium bylaws don’t allow criminal activity on premises. Section 286.1 is “arbitrary, grossly disproportionate, and overbroad in that it captures non-exploitative, consensual sex work in the net of criminal liability and prevents sex workers from availing themselves of protective measures.”

Material benefit and advertising offences

The CBA Sections reiterate their suggestion, first presented in a 2014 submission on what was then Bill C-36, to amend s. 286.2 of the Criminal Code that restricts the receipt of financial benefits derived from sex work. The Sections also called for the removal of s. 286.4 restricting advertisement of sexual services. Both sections restrict sex workers’ ability to take measures they deem appropriate to work in safety, for instance by hiring bodyguards or select their clientele according to their own criteria.

These two sections have been and continue to be challenged in Alberta and Ontario. “In our view,” the letter reads, “the volume of litigation dealing with the breadth of these sections and its impact on their constitutionality militates in favor of amendments narrowing the sections.”

Mandatory minimum sentences

Consistent with the resolution adopted by the CBA at its 2021 Annual General Meeting to urge the federal government to eliminate mandatory minimum sentences except for murder, the Sections recommend they be removed from the Act. “Maintaining the mandatory minimum sentences mandated by the Act runs contrary to its broader, high-minded purpose of prioritizing the protection of vulnerable populations from exploitation,” the letter reads. “Mandatory minimum sentences have consistently been shown to exacerbate the exploitation of vulnerable populations particularly Black, Indigenous and racialized populations.”