Court File No. 07-CV-329807PD1

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT Applicants and

ATTORNEY GENERAL OF CANADA Respondent and

ATTORNEY GENERAL OF ONTARIO Intervenor

______

APPLICANTS’ MEMORANDUM OF FACT AND LAW ______

ALAN N. YOUNG Barrister & Solicitor Osgoode Hall Law School 4700 Keele Street, Room 428 Toronto, ON M3J 1P3

Phone: (416) 736-5559 Fax: (416) 736-5736 Email: [email protected]

Solicitor for the Applicant, Terri Jean Bedford

TO: Registrar Superior Court of Justice for Ontario 393 University Avenue 10th Floor Toronto, ON M5G 1E6

AND TO: DEPARTMENT OF JUSTICE Ontario Regional Office The Exchange Tower 130 King Street West, Suite 3400 Toronto, ON M5X 1K6 Per: Michael H. Morris Tel: (416) 973-9704 Fax: (416) 952-4518 Solicitor for the Respondent

AND TO: STACEY NICHOLS Neuberger Rose LLP 1392 Eglinton Avenue West Toronto, ON M6C 3E4 Tel: 416-364-3111 Fax: 416-364-3271 Email: [email protected] Solicitor for the Applicant, Valerie Scott

AND TO RON MARZEL Barrister & Solicitor 1170 Sheppard Ave West, Unit 10 Toronto, ON M3K 2A3 Tel: 416-485-5800 Fax: 416-485-1610 Solicitor for the Applicant, Amy Lebovitch

AND TO: MINISTRY OF THE ATTORNEY GENERAL 20 Bay Street, 10th Floor Toronto, ON M5G 2K1 Per: Shelley Hallett Tel: 416-326-4639 Fax: 416-326-4656 Solicitor for the Intervener, Attorney General of Ontario

Table of Contents

Section Page Para. PART I – OVERVIEW 1 1 1. The Nature of the Application 1 1 2. The Impugned Provisions 3 6 3. The Charter Argument 5 9 4. The Legislative Facts and Other Evidence 7 16 PART II – THE FACTS 12 24 1. Applicants 12 24 A. Terri Jean Bedford 12 24 B. Amy Libovitch 15 29 C. Valerie Scott 16 33 2. The Experience of Violence in the Sex Trade 20 40 A. “Occupation at Risk” – Homicide and Serial Killers 20 40 B. The Perception and Experience of Women Working in the Sex Trade 29 60 (i) Wendy Harris 29 60 (ii) Linda Shaikh 30 63 (iii) Wendy Babcock 31 66 (iv) Kara Gillies 32 69 (v) Darlene Maurganne Mooney 36 79 (vi) Carol-Lynn Strachan 38 84 (vii) Susan Davis 41 90 (viii) Jody Patterson 45 99 (ix) Lauren Casey 47 105 C. Observations and Opinion from a Journalist and a Member of 49 110 Parliament (i) Dan Gardiner 49 110 (ii) Libby Davies 51 114 D. Expert Opinion 54 122 (i) Gaps and Limitations in Current Sex Work Research 54 122 (ii) Gayle MacDonald 59 129 (iii) Frances M. Shaver 61 135 (iv) Cecilia Benoit 63 139 (v) Deborah Brock 66 146 (vi) Eleanor Maticka-Tyndale 68 151 (vii) Augustine Brannigan 70 157

E. The Expert Opinion of Professor John Lowman 73 164 (i) Background 73 164 (ii) Professor Lowman’s General Conclusions 74 168 (iii) Displacement and the 1984 Field Study 77 174 (iv) The 1989 Evaluation 80 180 (v) The 1995 Violence Study 81 182 (vi) Professor Ronald Melchers’ Critique of Professor John 85 187 Lowman (vii) Corroborative Studies – Displacement and the 95 201 Indoor/Outdoor Distinction 3. Government Debates and Government Reports Since 1972 112 218 4. The Evidence Presented by the Attorney General (Canada) 131 275 A. Introduction 131 275 B. Melissa Farley 136 278 (i) General Critique 138 282 (ii) Generalizations and Unsubstantiated Claims 140 286 (iii) Anecdote versus Evidence 142 292 (iv) Concerns Respective Methodology 143 295 (v) Flaws in Post-Traumatic Stress Disorder Assertions 145 302 (vi) Indoor versus Outdoor Sex Work 146 305 C. Janice Raymond 149 310 D. Richard Poulin 155 317 E. Alexis Kennedy 158 322 5. International Developments 163 330 A. Australia – Mary Sullivan and Professor Barbara Sullivan 163 331 B. New Zealand – Dr. John Pratt 172 351 C. Germany – Janice Raymond 181 379 D. The Netherlands – Dr. Lotte Constance van de Pol 187 394 E. Nevada – Melissa Farley 193 413 PART III – ISSUES AND THE LAW 197 424 1. Issues 197 424 2. Purpose, Effect and Reasonable Hypotheticals 199 429 3. The Legislative Objectives 201 433 A. Communication – Section 213(1)(c) 201 434 B. Bawdy House – Section 210 204 436 C. Living on the Avails – Section 212(1)(j) 207 439 4. A Proper Understanding of Constitutionally Valid Legislative Objectives 207 440

5. The Elements of the Impugned Provisions 211 445 A. Communication – Section 213(1)(c) 211 445 B. Bawdy House – Section 210 213 447 C. Living on the Avails – Section 212(1)(j) 215 452 6. The Constitutional Violations 217 457 A. Introduction: Previous Challenges 217 457 B. Fundamental Justice – Rule of Law 219 461 C. Fundamental Justice – Arbitrary 221 463 D. Fundamental Justice – Overbreadth 224 468 E. Fundamental Justice – Gross Disproportionality 228 477 F. Fundamental Justice and Reasonable Limits under s.1 231 483 G. The Communication Law and Reasonable Limits under s.1 233 485 H. Concluding Remarks on the Rule of Law 235 489 PART IV – ORDER REQUESTED 238 495 Schedule A – Authorities Referred To 239

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT Applicants and

ATTORNEY GENERAL OF CANADA Respondent and

ATTORNEY GENERAL OF ONTARIO Intervenor

MEMORANDUM OF FACT AND LAW

PART I - OVERVIEW

1. The Nature of the Application

1. By Notice of Application, dated March 20, 2007, the Applicants, Terri Jean Bedford, Amy Lebovitch and Valerie Scott seek declaratory relief in the nature of:

(a) An Order declaring that ss.210 (bawdy house), 212(1)(j) (living on the avails) and 213(1)(c) (communication for the purpose of prostitution) of the Criminal Code of Canada violate s.7 of the Charter of Rights and Freedoms and as such are unconstitutional and of no force and effect; (b) An Order declaring that s.213(1)(c) of the Criminal Code of Canada violates s.2(b) of the Charter of Rights and Freedoms and as such is unconstitutional and of no force and effect;1

2. The Applicant, Terri Jean Bedford, worked in the sex trade in the late 1970’s and the 1980's and since 1993 has worked as a dominatrix. She has been convicted of keeping a common bawdy house for the purpose of prostitution with respect to both her former and current work. In her former work in the sex trade, she was subjected to serious acts of violence while working on the streets. She never experienced this violence while working at indoor locations as a sex trade

1 Notice of Application dated March 20, 2007, Application Record, Vol. 1, Tab 1, p. 3; Notice of Amended Application dated April 23, 2007, Application Record, Vol. 1, Tab 2, p. 11.

1 of 243 worker and later as a dominatrix. Ms. Bedford wishes to resume work as a dominatrix but is not willing to risk further arrest and prosecution under s.210 (bawdy house) of the Criminal Code.2

3. The Applicant, Valerie Scott, has worked in the sex trade since the early 1980's and in recent years has worked as an activist campaigning for the rights of sex workers. She is currently the Executive Director of Sex Professionals of Canada (SPOC) and, in her capacity as an activist, she warned the federal government that following the enactment of the communications law (s.213(1)(c)) in 1985, violence against sex trade workers on the streets had escalated. This Applicant also wishes to resume work in the sex trade by opening a secure and safe indoor location, but will not do so because of the current criminal prohibitions on bawdy houses.3

4. The Applicant, Amy Lebovitch, has been a sex trade worker since 1997. She has worked on the streets but now chooses to work from her home for fear of violence when working on the streets. By working from her home, she believes she has increased her physical security, but she is now concerned about the legal consequences of working indoors. She is also concerned that her live-in partner will be charged with living on the avails for living with her in the home.4

5. The act of prostitution per se has always been a legal activity under the Criminal Code but the Code prohibits many other activities accompanying or associated with this lawful business. In a nutshell, this case is based on the proposition that the sex trade activities prohibited by the Criminal Code prevent or prohibit sex trade workers from conducting their lawful business in a safe environment. It is respectfully submitted that the intersection and operation of ss.210, 212(1)(j) and 213(1)(c) materially contribute to the violence which street sex workers face on a daily basis. Under s.210, it is illegal to conduct business in an indoor location on a habitual and frequent basis, and the evidence tendered on this Application demonstrates that violence is significantly reduced or eliminated in most indoor settings. Under s.212(1)(j) it is illegal to hire managers, drivers, and security personnel and the evidence tendered in this Application demonstrates that these types of services can reduce or eliminate the incidence of violence. Finally, it is illegal under s.213(1)(c) to “communicate” for the purposes of prostitution and the evidence tendered on this Application demonstrates that the prohibition on

2 Affidavit of Terri Jean Bedford, Application Record, Vol. 2, Tab 11. 3 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16. 4 Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13.

2 of 243 “communication” has compelled sex workers to make hasty decisions without properly screening customers when working on the streets.

2. The Impugned Provisions

6. With respect to street prostitution, charges are occasionally laid under s.173 of the Criminal Code (indecent act in public); however, the primary sanctions governing street prostitution are found in s.213 of the Criminal Code:

Offence in relation to prostitution 213. (1) Every person who in a public place or in any place open to public view (a) stops or attempts to stop any motor vehicle, (b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or (c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

The constitutional challenge in the case at bar solely relates to the “communication” offence found in s.213(1)(c) and not the offences found in sub-sections (a) and (b).

7. With respect to acts of prostitution committed in an indoor setting, the governing provisions are found s.210 of the Criminal Code:

Keeping common bawdy-house 210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Landlord, inmate, etc. (2) Every one who (a) is an inmate of a common bawdy-house, (b) is found, without lawful excuse, in a common bawdy-house, or (c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction.

Notice of conviction to be served on owner (3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the

3 of 243 notice shall contain a statement to the effect that it is being served pursuant to this section.

Duty of landlord on notice (4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence. R.S., c. C-34, s. 193.

The constitutional challenge in the case at bar seeks invalidation of s.210 in its entirety. This challenge does not seek the invalidation of a related provision: s.211 (transporting person to bawdy house). It should be noted the indictable offence of keeping a common bawdy house is deemed a “designated offence” for the purposes of the forfeiture provisions dealing with proceeds of crime as set out in Part XII.2 of the Criminal Code. In addition, s.210 is included in the list of offences found in s.183 of the Criminal Code for which authorization for electronic surveillance can be obtained by the police.

8. With respect to the provisions of services to sex trade workers, whether working indoors or outdoors, the governing provisions are found in s.212 of the Criminal Code:

212. (1) Every one who (a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada, (b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution, (c) knowingly conceals a person in a common bawdy-house, (d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute, (e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada, (f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house, (g) procures a person to enter or leave Canada, for the purpose of prostitution, (h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,

4 of 243 (i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or (j) lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

The constitutional challenge in the case at bar only seeks the invalidation of s.212(1)(j) (living on the avails). Sub-sections (a) through (i) clearly apply to conduct of an exploitive and manipulative nature and are not the subject matter of this challenge. In addition, this challenge does not extend to the related provisions found in s.212(2.1) and 212(4) relating to living on the avails of person under the age of 18 and obtaining sexual services from a person under the age of 18. It should be noted that s.212(1)(j) is deemed a “primary designated offence” under s.487.04 of the Criminal Code for the purposes of obtaining DNA samples from offenders. In addition, s.212(1)(j) is deemed a “designated offence” under s.490.011 of the Criminal Code for the purposes of the sex offender registry. As with keeping a common bawdy house, the offence of living on the avails is also subject to authorizations for electronic surveillance (s.183 of the Criminal Code) and for the forfeiture of proceeds of crime (Part XII.2 of the Criminal Code).

3. The Charter Argument

9. In 1990, the Supreme Court of Canada in Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code [1990] 1 S.C.R. 1123 dismissed a constitutional challenge seeking to invalidate ss.210 (bawdy house) and s.213(1)(c) (communication) of the Criminal Code. The Charter arguments presented in that reference with respect to s.7 of the Charter are fundamentally different from the arguments presented in the case at bar. In the 1990 case the challenge involved s.7 fundamental justice arguments related to economic liberty and vagueness of the offence formulation. These arguments were rejected; however, the Court did find that the communication offence violated s.2(b) (freedom of expression) but the provision was upheld as the violation was held to be a reasonable limit under s.1 of the Charter.

10. In 1990, the Supreme Court of Canada clearly held that the state objective underlying the street prostitution offences was street or social nuisance. The Court concluded that the provision was not designed to address all the various social and moral concerns believed to be associated

5 of 243 with the sex trade. In the case at bar, the Applicants accept and adopt the Supreme Court’s formulation of the state objective underling the sex trade offences. This constitutional challenge does not question the objective, but rather all the arguments to be raised under s.7 of the Charter pertain to the means chosen to achieve the state objective of reducing or eradicating street and/or social nuisance.

11. It is respectfully submitted that these provisions deprive sex workers of their right to liberty under s.7 of the Charter of Rights and Freedoms by exposing them to the risk of imprisonment. These provisions also deprive sex trade workers of their right to security under s.7 of the Charter of Rights and Freedoms by creating legal prohibitions on the necessary conditions required for this type of work to be conducted in a safe and secure setting, thus exposing the sex worker to an increased risk of physical or psychological harm.

12. It is respectfully submitted that the deprivation of liberty and security in these circumstances is not in accordance with the principles of fundamental justice because these provisions are “arbitrary” as defined by the Supreme Court of Canada in R. v. Rodriguez, [1993] 3 S.C.R. 519 and R. v. Caine; R. v. Malmo-Levine [2003] 3 S.C.R. 571. One measure of arbitrariness is a law that “does little or nothing to enhance the state’s interest”. Another measure is the standard of gross disproportionality: “if the use of the criminal law were shown by the appellants to be grossly disproportionate in its [negative] effects on accused persons, when considered in light of the objective of protecting them from the harm caused by [prostitution], the prohibition would be contrary to fundamental justice and s.7 of the Charter”.

13. Further, it is respectfully submitted that the deprivation of liberty and security in these circumstances is not in accordance with the principles of fundamental justice, and in particular, the rule of law because (as per R. v. Hitzig (2003) 177 C.C.C. (3d) 449 (Ont.C.A.)) these provisions create an alliance between the Government and the black market whereby the government permits the lawful pursuit of prostitution but forces the prostitute to rely upon a black market, the criminal element, to supply the services needed to conduct this business in a safe and secure environment.

14. Finally, it is respectfully submitted that the deprivation of liberty and security in these circumstances is not in accordance with the principles of fundamental justice because the

6 of 243 provisions are overbroad in that they overshoot the mark by extending the criminal law to activities which are not rationally connected to the state objectives underlying the prohibitions.

15. With respect to s.213(1)(c) (communication), it is respectfully submitted that the 1990 ruling upholding this provision as a “reasonable limit” on freedom of expression should be re- visited on the basis of a material change of circumstance. It is submitted that there is new empirical evidence not considered by the Supreme Court of Canada that shows that the law is not effectively achieving its stated objectives. Much of this evidence is found in government reports evaluating the impact of the 1985 communicating law. The Applicants accept and adopt the conclusion reached in December 1998, in the Report of the Federal/Provincial/Territorial Working Group on Prostitution:

The research results indicated that the law was not meeting its objectives as its main effect in most centres has been to move street prostitutes from one downtown area to another, thus merely displacing the problem. However, as mentioned in the previous paragraph, the Supreme Court of Canada had already ruled that the communicating law was a justifiable infringement because its strengths (reducing the street nuisance associated with street prostitution) outweighed the infringement on freedom of expression. Had the research results been made available prior to the Supreme Court decision, the question whether s.213 is a justifiable infringement on freedom of expression might have been considered differently (emphasis added).5

4. The Legislative Facts and Other Evidence

16. It is respectfully submitted that the proposition that street prostitution is far more dangerous than indoor prostitution being conducted with the assistance of third parties is primarily a matter of common sense and simple inference. Nonetheless, the Applicants have presented a substantial body of supporting evidence to comply with the Supreme Court of Canada’s admonition that Charter arguments should not be advanced in a “factual vacuum” in the absence of legislative facts to provide some context and information as to the operation of the law. As the Supreme Court of Canada has said:

In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant

5 Federal/Provincial/Territorial/Working Group on Prostitution- Report and Recommendations in respect of Legislation Policy and Practices Concerning Prostitution-Related Activities, 1998, Application Record, Vol. 79, Tab 160, p. 23873.

7 of 243 facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts. Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions.6

Subsequently, The Court reiterated:

In general, any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged effects. In the absence of such evidence, the courts are left to proceed in a vacuum, which, in constitutional cases as in nature, has always been abhorred.7

17. Accordingly, twenty-one witnesses tendered affidavit evidence for this Application on behalf of the Applicants which describes and outlines the nature and frequency of physical and psychological violence experienced by sex trade workers in various cities and towns across Canada. Of the 21 witnesses, 11 have worked or are currently working in the sex trade. Of these eleven, five currently work for groups or associations that provide assistance to sex trade workers. Eight witnesses have academic postings at various universities across Canada and have conducted empirical research into issues relating to violence against sex trade workers in various Canadian jurisdictions. One witness is a journalist and another is a current Member of Parliament. All 21 witnesses deposed that the current legal regime significantly contributes to the risk of violence experienced by women in the sex trade.

18. The following chart provides a list of the various witnesses who provided affidavit evidence in support of this Application when it was served upon the Crown in March 2007. Over the past two years most of these witnesses were cross-examined by the Respondent and Intervenor (affiants who were cross-examined have their names bolded in this chart):

Applicants

1. Valerie Scott Sex Professionals of Canada (SPOC) – Vol. 2, Tab 11 Toronto, ON

2. Amy Lebovitch Sex Trade Worker – Toronto, ON Vol. 2, Tab 13

3. Terri Jean Bedford Former Sex Trade Worker – Toronto, ON Vol. 3, Tab 16

6 MacKay v. Manitoba [1989] 2 S.C.R. 357 at 361. 7 Danson v. Ontario, [1990] 2. S.C.R. 1086 at para. 31.

8 of 243 Sex Trade Workers & Advocates

4. Wendy Babcock Street Health – Toronto, ON Vol. 4, Tab 19

5. Susan Davis Prostitution Alternatives Counselling and Vol. 5, Tab 22 Education Society (PACE) – Vancouver, BC

6. Kara Gillies Maggie’s – Toronto, ON Vol. 6, Tab 24

7. Wendy Harris Streetlight – Halifax, NS Vol. 7, Tab 27

8. Maruganne Mooney Sex Workers Community Alliance - Toronto, ON Vol. 7, Tab 29

9. Jody Patterson Prostitutes Empowerment Education and Vol. 7, Tab 30 Resource Society (PEERS) – Vancouver, BC

10. Linda Shaikh Former Sex Trade Worker – Oshawa, ON Vol. 8, Tab 31

11. Carol-Lynn Sex Trade Worker – Edmonton, AB Vol. 8, Tab 32 Strachan 12. Libby Davies Member of Parliament for Vancouver East – Vol. 9, Tab 37 Vancouver, BC 13. Dan Gardiner Senior Writer, Ottawa Citizen – Ottawa, ON Vol. 10, Tab 38 Expert Witnesses

14. Professor Augustine Department of Sociology, University of Calgary Vol. 8, Tab 34 Brannigan – Calgary, AB

15. Professor Deborah Department of Sociology, York University – Vol. 9, Tab 35 Brock Toronto, ON

16. Professor Elliot Department of Anthropology & Archeology, Vol. 10, Tab 40 Leyton Memorial University – St. John’s, NL

17. Professor Gayle Department of Women’s Studies, St. Thomas Vol. 11, Tab 42 MacDonald University – Fredericton, NB

18. Professor Eleanor Department of Sociology, Anthropology and Vol. 12, Tab 45 Maticka-Tyndale Criminology, University of Windsor – Windsor, ON

19. Professor Cecilia Department of Sociology, University of Vol. 13, Tab 48 Benoit Victoria – Victoria, BC

20. Professor John Department of Criminology, Simon Fraser Vol. 15, Tab 51 Lowman University – Vancouver, BC

21. Professor Frances Department of Sociology and Anthropology, Vol. 24, Tab 55 Shaver Concordia University – Montreal, QC

9 of 243 19. Beyond the evidence presented by these witnesses, the Applicants rely upon legislative facts, analysis and recommendations presented in numerous government reports and studies over the past four decades. In particular, the position of the Application finds support in the 1985 Special Committee on Pornography and Prostitution (the “Fraser Committee”) which heard from hundreds of organizations and individuals from 22 locations across Canada and recommended, inter alia, that:

Recommendation 55

The prostitution related activities of both prostitutes and customers should be removed from the Criminal Code, except insofar as they contravene non- prostitution related Code provisions, and do not create a definable nuisance or nuisances.

Recommendation 57

The criminal law relating to prostitution establishments should be drawn so as not to thwart the attempts of small numbers of prostitutes to organize their activities out of a place of residence, and so as not to prevent provinces from permitting and regulating small-scale, non-residential commercial prostitution establishments employing adult prostitutes.8

20. As will be discussed in the Memorandum, this recommendation was not adopted by Parliament and the decision was made to enact the “communicating offence” in 1985. It is submitted that the research and evidence collected over the past 24 years since the enactment of this offence demonstrates that the sound public policy recommendations of the Fraser Committee should now be seen as constitutional imperatives. A law should not be characterized as being “in accordance with the principles of fundamental justice” in light of the following negative portrayal of the operation of the current law as painted by the Standing Committee on Justice and Human Rights in 2006:

The Subcommittee had a mandate seeking to improve the safety of individuals selling sexual services and communities overall. After reviewing the criminal laws pertaining to prostitution with that mandate in mind, members agree that the status quo is unacceptable. The social and legal framework pertaining to adult prostitution does not effectively prevent and address prostitution or the exploitation and abuse occurring in prostitution, nor does it prevent or address harms to communities. This framework must therefore be reformed or reinforced.

8 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution (the “Fraser Committee”) Volume 2, 1985, Application Record, Vol. 71, Tab 154(B), pp. 21052, 21056.

10 of 243 This view reflects the position of the vast majority of witnesses who appeared before the Subcommittee, as well as the conclusions of the major studies on prostitution conducted over the last 20 years.9

21. In response to the evidence and legislative facts tendered by the Applicants, the Attorney General (Canada) tendered a voluminous record comprised of 34 affidavits from former sex trade workers, police officers, community spokespersons, public officials and expert witnesses. In terms of expert witnesses, it must be noted that only one of the Crown’s expert witnesses on the sex trade currently resides and works in Canada (Richard Poulin), and that of all the studies conducted by these witnesses, only two were conducted in Canada (Melissa Farley and Alexis Kennedy each conducted one research study in Vancouver). It is respectfully submitted that much of the evidence tendered by the Crown is not directly relevant, or responsive to the constitutional issues raised in the case at bar. The evidence tendered by the Crown relating to the operation of prostitution laws in other jurisdictions (Australia, New Zealand, Nevada, Germany and Holland) is relevant and important for the application of the test of “reasonable limits in a free and democratic society” under s.1 of the Charter; however, it is submitted that a large proportion of the remaining evidence tendered by the Crown does not assist the court in addressing the question of whether the law prevents or prohibits sex trade workers from conducting lawful business in a safe working environment. In particular, the Crown has tendered a great deal of evidence pertaining to “trafficking” of sex trade workers and the horrors of child prostitution. It is unclear how this evidence is relevant to the issues raised by this challenge especially in light of the fact that the Applicants have not challenged any of the extant Criminal Code provisions which specifically criminalize acts of “trafficking” and child prostitution.

22. The Applicants do not contest many of the factual assertions made by Crown witnesses, or by expert witnesses reporting on the assertions made by interviewees, as to the horrors experienced while working in the sex trade on the streets. In fact, these troubling anecdotes ultimately underscore the vital importance of providing safe, legal options for the pursuit of this lawful business, and it is submitted that the Applicants and the Crown stand on common ground in concluding that working the streets is not a safe option. The position of the Applicants and the Crown diverges when it comes to the issue of increased safety in an indoor location; however, it

9 Report of the Standing Committee on Justice and Human Rights: The Challenge of Change - A Study of Canada’s Criminal Prostitution Laws, 2006, Application Record, Vol. 82, Tab 164, p. 24991.

11 of 243 is submitted that the bulk of the evidence tendered by the Crown on this critical question is speculative and based primarily on a distinct political ideology or opinion - i.e. that all sex work is exploitive, inherently violent and dehumanizing and therefore it is meaningless to speak of a safe option to pursue sex work.

23. Finally, in response to the Crown’s evidence, the Applicants’ tendered evidence from three additional witnesses:

• Professor Ronald Weitzer, George Washington University, provided a critique of some of the research conducted, or relied upon, by Crown experts, and, in particular, addressed the distinct political ideology which the Applicants’ contend has tainted the objectivity of some of the Crown’s witnesses (Application Record, Vol. 30, Tab 64);

• Professor Barbara Sullivan, University of Queensland, Australia addressed the claims made by Crown expert, Mary Sullivan, about the failings of, and harms created by, legalization or decriminalization in Australian states (Application Record, Vol.27, Tab 61);

• Lauren Casey provided evidence based on personal experience and a small-scale research study on the experience of indoor sex work in Vancouver to address claims made by Crown witnesses, Melissa Farley and Alexis Kennedy, about the exploitive nature of sex work in Vancouver (Application Record, Vol. 26, Tab 58).

12 of 243 PART II – STATEMENT OF FACTS

1. Applicants

A. Terri Jean Bedford

24. The Applicant Terri-Jean Bedford was born on October 15, 1959, in the town of Collingwood, Ontario.10 She was placed in adoptive care at the age of six where she endured physical, sexual, and verbal abuse.11 At the age of twelve, Ms. Bedford was sent to a convent school, after which she spent time in a series of group homes. In 1976, the Applicant was removed from one group home and placed in a Children’s Aid house in Windsor.12 While in Windsor, she met an older man who introduced her to speed and fostered her drug addiction. To support her habit, Ms. Bedford engaged in street prostitution.13 From the age of 16, Ms. Bedford worked intermittently as a streetwalker, escort worker, massage parlor attendant, and dominatrix.14 For over ten years, the Applicant experienced physical violence working on the streets of Windsor, Calgary, and Vancouver. Though she also endured violence living with her “boyfriend” in Windsor, Ms. Bedford claims such abuse “paled in comparison to what I experienced on the street as a prostitute.”15 As a street worker, Ms. Bedford was “raped and gang-raped too many times to talk about.”16

25. The Applicant identifies outdoor prostitution as a dangerous occupation where rape, abduction, physical abuse, and emotional trauma represent constant threats. Ms. Bedford retains scars “from being beaten on the head with a baseball bat by a john…” She admits, “when a streetwalker goes to meet a john, she never knows what will happen to her.”17 According to Ms. Bedford, indoor sex work represents “a safer alternative to street prostitution.”18 Running her escort agency and later, a dominatrix business, the Applicant used a variety of safety measures to protect herself and her employees. Such measures included never leaving the women alone while with a client, having body guards accompany employees to outcalls, and implementing a

10 Affidavit of Terri-Jean Bedford, Application Record, Vol. 2, Tab 11, p. 45. 11 Cross-Examination of Terri-Jean Bedford, Application Record, Vol. 2, Tab 12, pp. 81-83. 12 Affidavit of Terri-Jean Bedford, Application Record, Vol. 2, Tab 11, p. 45. 13 Affidavit of Terri-Jean Bedford, Application Record, Vol. 2, Tab 11, p. 46. 14 Ibid,, p. 45. 15 Ibid,, p. 46. 16 Ibid,, p. 46. 17 Ibid,, p. 46. 18 Ibid,, p. 47.

13 of 243 screening process to weed out potentially dangerous or undesirable customers. Of her escort agency, Ms. Bedford claims: “I believe that the work environment which I provided gave the girls the sense of security, dignity and self-respect which was conspicuously absent while they were working as streetwalkers.”19

26. Later in her career, the Applicant practiced professional domination in the basement of a Thornhill house, the “Bondage Bungalow.” As a dominatrix, Ms. Bedford did not provide sex but serviced clients’ particular erotic fantasies, including mild forms of S&M.20 Before each session, potential patrons filled out screening forms21 detailing their fantasies and then discussed them with Ms. Bedford.22 The Applicant states, “this process allowed [her] to screen out clients who wanted sex, indecent acts, and more extreme forms of masochistic role-play, or who appeared drunk, high or mentally unstable”.23

27. Ms. Bedford employed various safety measures to protect herself and her employees at the “Bondage Bungalow”: “we had a male employee on site that provided us with security, and if he wasn’t around, there were always at least 2 to 3 girls on the premises at all times. I also bought a baby monitor and placed the receiving end in the kitchen, so that if anything went awry during one of the sessions, either he or one of the other employees would hear the sounds of distress and respond immediately”. 24 The Applicant took advantage of such safety precautions when a client tried to choke her during a session. Of this incident, Ms. Bedford recounts, “I called out, and my male employee heard the commotion and came downstairs. The man then released me. To my knowledge, that was the only incident of real violence experienced by either myself or any of my employees”.25 In cross-examination, Ms. Bedford conceded that dangers can arise in indoor locations as the safety of a given venue depends on how it is being run and the safety measures put in place to protect workers.26

19 Ibid,, p. 48. 20 Ibid,, p. 51. 21 Screening form for Prospective Clients, Application Record, Vol. 2, Tab 11(A), pp. 55-59. 22 Affidavit of Terri-Jean Bedford, Application Record, Vol. 2, Tab 11, p. 51. 23 Ibid,, p. 51. 24 Ibid,, p. 51. 25 Ibid,, p. 52. 26 Cross-Examination of Terri-Jean Bedford, Application Record, Vol. 2, Tab 12, pp. 96, 131.

14 of 243 28. The “Bondage Bungalo” shut down in 1994 after a “humiliating” and violent police raid.27 Ms. Bedford was charged with “being a keeper” of a common bawdy house for the purposes of prostitution and was convicted in 1998.28 The Applicant hopes to resume working as a dominatrix, but feels this may not be possible since “working as a dominatrix in a secure, indoor setting exposes [her] to criminal liability for bawdy house charges…”.29 With her deteriorating health and emotional fatigue, Ms. Bedford does not want to risk exposing herself again to criminal liability.

B. Amy Lebovitch

29. The Applicant Amy Lebovitch was born in Montreal, Quebec on January 24, 197930. She became a sex worker at the age of 18, “primarily for financial reasons.”31 After working on the streets of Montreal for approximately one year, Ms. Lebovitch decided to move indoors. The Applicant states: “I felt that I did not have enough control over my environment while being out on the streets…I believe that had I continued working on the streets, I would have been subjected to serious violence”.32 Fortunately, Ms. Lebovitch never experienced violence working outdoors in Montreal.33

30. After leaving the streets, the Applicant began working for an escort service. She admits that outcalls “still carry with them the potential for danger”34 and that she experienced “reduced safety” due to the poor management of the particular escort service.35 In 1999, Ms. Lebovitch began working at an indoor fetish house in Ottawa.36 She suffered only one notable incidence of violence at the house which she attributes to a lack of proper safety measures.37

31. Ms. Lebovitch relocated to Toronto in 2001 and started practicing sex work out of her own home. She states, “this provided me with the unique ability to protect myself from clients that I felt could potentially pose a danger…through the use of safety procedures…I believed that

27 Affidavit of Terri-Jean Bedford, Application Record, Vol. 2, Tab 11, p. 52. 28 Ibid,, p. 53 . 29 Ibid,, p. 53. 30 Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p. 164. 31 Ibid,, p. 164. 32 Ibid,, p. 164. 33 Cross-Examination of Amy Lebovitch, Application Record, Vol. 2, Tab 14, p. 179. 34 Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p. 164. 35 Cross-Examination of Amy Lebovitch, Application Record, Vol. 2, Tab 14, pp. 191-192. 36 Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p. 165. 37 Ibid,, p. 165.

15 of 243 the measures I was able to take while working in an environment that I controlled prevented me from experiencing any major incidences of violence”.38 From her home, the Applicant screens potential clients by engaging in small conversations with them over the phone and ensuring they call from a valid, unblocked, phone number.39 Moreover, her condominium’s security camera records all clients as they enter the building and Ms. Lebvitch’s partner usually waits downstairs during her appointments.40 She makes a “safe call” either to her partner or another person once a client arrives so that he is aware “someone is downstairs or close by”.41 Someone will also call the Applicant ten minutes before the end of the hour to guarantee her safety.42 Though she acknowledges that such safety measures do not eliminate the possibility of an attack from a client, Ms. Lebovitch feels that her home offers a safe, familiar environment where she can maintain control over her surroundings.43

32. Though Ms. Lebovitch feels more physically secure working at her home, she remains concerned about the legal consequences of her current vocation.44 The applicant fears being charged under the bawdy house provision and the possibility of forfeiture on her home. Further, Ms. Lebovitch does not want her partner, who “works independently and contributes to [the] household” to face charges for living on the avails.45 The fear of such legal repercussions has forced the applicant “on several occasions to venture back onto the streets”, although each time she arrives at the same conclusion that “working on the streets is too dangerous for [her] to continue”.46 Yet, Ms. Lebovitch remains aware that “the possibility of working indoors is a privilege” and that “this is not a luxury that others enjoy”.47

c. Valerie Scott

33. The Applicant Valerie Scott was born on April 9, 1958 in Moncton, New Brunswick.48 Ms. Scott moved to Toronto around 1976 where she worked as an exotic dancer for seven

38 Ibid,, pp. 165-166. 39 Cross-Examination of Amy Lebovitch, Application Record, Vol. 2, Tab 14, p. 199. 40 Ibid,, pp. 200-201. 41 Ibid,, p. 201. 42 Cross-Examination of Amy Lebovitch, Application Record, Vol. 2, Tab 14, p. 202. 43 Ibid,, p. 202. 44 Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p. 166. 45 Ibid,, p. 166. 46 Ibid,, p. 166. 47 Ibid,, p. 166. 48 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 293.

16 of 243 years.49 Due to the excessive amount of travelling involved in exotic dancing, Ms. Scott abandoned this line of work and entered the sex trade.50 The Applicant initially worked out of her own home, employing various precautions to ensure her safety.51 These measures included verifying clients’ names and phone numbers, screening telephone calls, and meeting new clients at a public location.52 Though she claims working indoors provided a greater sense of security than streetwalking, Ms. Scott lost about 85% of her clientele due to her own insistence on using condoms.53 The Applicant explains that the clients she received indoors “believed that since they were paying a higher amount, they were entitled to refrain from” safe sex.54 By around 1984, Ms. Scott had lost so much business that she relocated onto the streets.55 She believes “the public perception of street workers as having a higher propensity for acquiring sexually transmitted diseases encouraged potential clients to use safer sex practices”.56

34. The Applicant recounts measures she and other prostitutes took to protect themselves on the streets before the communication laws were enacted.57 Ms. Scott identifies one such precaution as working in pairs.58 She explains, “while one sex worker approached a potential client, the other would visibly write down the license plate number of the vehicle in order to convey to the potential client that if harm were to come, a method to trace back the encounter was available”.59 She states: “prior to the communication law, a prostitute could spend more time speaking to and screening the potential client to increase their level of safety”.60 Yet, according to Ms. Scott, “although these measures made working on the streets safer, the possibility of harm was still a real factor”.61 The Applicant endured physical and verbal abuse while on the streets, though fortunately such instances did not escalate into any severe injuries.62

49 Ibid,, p. 293. 50 Ibid,, p. 293. 51 Ibid,, p. 294. 52 Ibid,, p. 294. 53 Ibid,, p. 294. 54 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 294. 55 Ibid,, p. 294. 56 Ibid,, pp. 294-295. 57 Ibid,, p. 295. 58 Ibid,, p. 295. 59 Ibid,, p. 295. 60 Ibid,, p. 295. 61 Ibid,, p. 295. 62 Ibid,, p. 295.

17 of 243 After only four months, Ms. Scott moved back indoors and was able to insist on safe sex practices from her clients due to the growing awareness of AIDS in the community.63

35. Around the mid-1980s, the Applicant also became politically active regarding the sex trade industry. She joined CORP (the Canadian Organization for the Rights of Prostitutes) which advocated for the decriminalization of prostitution.64 In 1984, Ms. Scott gave submissions to the Legislative Committee in Ottawa on their proposal for the enactment of ‘communication laws’.65 She recounts, “the submissions consisted essentially of warnings that the enactment of these laws would result in the death and injury of women working on the streets”.66

36. After the enactment of the ‘communication laws’, Ms. Scott spoke at universities and colleges about the impact of the law on women in the sex trade industry.67 As a representative of CORP, Ms. Scott, along with the National Action Committee on the Status of Women, issued an emergency resolution calling for the repeal of the newly enacted communication and related bawdy house and living off the avails legislation.68 The Applicant recounts receiving increased calls at CORP regarding ‘bad dates’ (i.e. abusive and aggressive clients) after the enactment of the ‘communication laws’.69 She states, “I believe that these new laws resulted in many more missing women, many murdered women, increased incarceration, the loss of children to CAS, and generally the exacerbation of the problems faced by sex workers”.70

37. As a member of CORP, Ms. Scott also helped set up Maggie’s, a drop in and phone center for sex workers.71 During the first year following the inception of Maggie’s, she heard from hundreds of women, primarily street sex workers,72 concerned about “violence from clients and legal matters arising from arrests by law enforcement officials”.73 Besides the obvious danger posed by clients, “police officers in certain cases were also the perpetrators of violence

63 Ibid,, p. 295. 64 Ibid,, p. 296. 65 Minutes of Proceedings and Evidence of the House of Commons Legislative Committee on Bill C-49, 22 October 1985), Application Record, Vol. 3, Tab 16(B), pp. 306-363 . 66 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 296. 67 Ibid,, p. 297. 68 CORP and National Action Committee on the Status of Women, Emergency Resolution, Application Record, Vol. 3, Tab 16(C), p. 365. 69 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 297. 70 Ibid,, p. 299. 71 Ibid,, p. 297. 72 Cross-Examination of Valerie Scott, Application Record, Vol. 4, Tab, 17, p. 640. 73 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 297.

18 of 243 against sex workers”.74 For example, Constable Brian Whitehead, or “Spermwhale” as the sex worker community knew him, committed acts of aggression or forced sexual activities against many sex workers in the downtown Toronto area.75 Mr. Whitehead was never charged with sexual assault; consequently, the Ontario Civilian Police Commission held an inquiry into one of the many assaults Mr. Whitehead was responsible for, the case of Jane Doe.76 The Commission ascertained that Mr. Whitehead had engaged in “possible criminal offences of sexual assault and extortion” as well as “corrupt practices and deceit, according to the Code of Offences in the Police Act”.77 In its conclusion, the Inquiry found that “[t]he attitude of internal affairs, as expressed in its final submission, seems to be that its members have learned nothing from this Inquiry, and have nothing to learn. This is an attitude that has to change”.78

38. In 2000, Ms. Scott started the group Sex Professionals of Canada (SPOC) to address issues and concerns surrounding the sex trade.79 Ms. Scott also set up websites to educate and create awareness for women engaged in the sex trade.80 In particular, she created a more updated ‘bad date’ list so that sex workers could communicate information about violent and dangerous clients to one another.81 Ms. Scott also made information available online relating to the current law surrounding prostitution and provided an analysis of its impact on sex workers.82 As executive director of SPOC, she testified before the 2005 House of Commons Subcommittee on Solicitation Laws regarding issues of sex worker safety and legal reform.83

39. The Applicant contends that the present laws surrounding prostitution endanger the lives of women in the sex trade industry. She claims, “even when bad dates are reported and the sex crimes unit knows who the assailant is, women are still terrified to come forward due to possible

74 Ibid,, p. 298. 75 Ibid,, p. 298. 76 Ibid,, p. 298. 77 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 298; Ontario, Report of an Inquiry into Administration of Internal Investigations by the Metropolitan Toronto Police Force, August 1992, (The Ontario Civilian Commission on Police Services), Application Record, Vol. 3, Tab 16(E), pp. 370-439. 78 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, pp. 298-299; Ontario, Report of an Inquiry into Administration of Internal Investigations by the Metropolitan Toronto Police Force, August 1992, (The Ontario Civilian Commission on Police Services), Application Record, Vol. 3, Tab 16(E), pp. 370-439. 79 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 299. 80 Ibid,, p. 300. 81 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 300; Sex Professionals of Canada (SPOC) website & ‘Bad Date’ List, Application Record, Vol. 3, Tab 16(J), pp. 481-505. 82 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16 p. 300. 83 House of Commons, Minutes of Proceedings and Evidence of the Subcommittee on Solicitation, Application Record, Vol. 3, Tab 16(O), pp. 524-559.

19 of 243 repercussions against them and the inability of the government to protect their safety…the law in effect deters sex workers from reporting the violence…”84 Though Ms. Scott would like to resume her involvement in the sex trade in a safe, indoor location, she feels “compelled to abstain from this work” due to the possibility of conviction under the ‘bawdy house legislation’.85

2. The Experience of Violence in the Sex Trade

A. “Occupation at Risk” – Homicide and Serial Killers

40. In recent years Statistics Canada, in its annual Juristat report Homicide in Canada, has characterized the “sex trade as an occupation at risk.”86 Along with sex trade workers, police officers and taxi drivers are also included in this category. Although this report only records 2 homicide victims from the sex trade in 2000 and 2001, in the 2001 report it is noted that “since 1991, 73 prostitutes have been killed while working.”87 From 2002 to 2004 the numbers jump with 18 homicides in 2002, 11 in 2003 and 18 in 2004.88 This increase in homicides over these 3 years represents the continuing discovery of bodies in Port Coquitlam, British Columbia – the farm owned by convicted serial killer Robert Pickton. Robert Pickton has been charged with 26 homicides relating to missing sex trade workers from the streets of the Downtown Lower East- side of Vancouver. To date he has been convicted of 6 counts and 20 counts remain to be tried.

41. However, even after all human remains had been located and removed from the Pickton farm, Statistics Canada has not seen a significant reduction in the homicide figures. In 2005,

84 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p. 300. 85 Ibid,, p. 302. 86 Statistics Canada, Homicide in Canada, 2000 by Orest Fedorowycz (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2001), Application Record, Vol. 86, Tab 167, p. 26256; Statistics Canada, Homicides in Canada, 2001 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2002), Application Record, Vol. 86, Tab 168, p. 26275; Statistics Canada, Homicide in Canada, 2002 by Josee Savoie (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2003, Application Record, Vol. 86, Tab 169, p. 26290; Statistics Canada, Homicide in Canada, 2003 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justic Statistics, 2004), Application Record, Vol. 86, Tab 170, p. 26311; Statistics Canada, Homicide in Canada, 2004 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2005), Application Record, Vol. 86, Tab 171, p. 26337; Statistics Canada, Homicide in Canada, 2005 by Mia Dauvergne and Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2006), Application Record, Vol. 86, Tab 172, p. 26362. 87 Statistics Canada, Homicide in Canada, 2001 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2002), Application Record, Vol. 86, Tab 168, p. 26275. 88 Statistics Canada, Homicide in Canada, 2002 by Josee Savoie (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2003, Application Record, Vol. 86, Tab 169, p. 26290; Statistics Canada, Homicide in Canada, 2003 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justic Statistics, 2004), Application Record, Vol. 86, Tab 170, p. 26311; Statistics Canada, Homicide in Canada, 2004 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2005), Application Record, Vol. 86, Tab 171, p. 26337.

20 of 243 Statistics Canada reported that “police reported a total of nine prostitutes killed, similar to the average number reported each year prior to the discovery of the homicides in Port Coquitlam.”89 In 2006 it is reported that “ a total of 12 prostitutes were killed in 2006 similar to the average number reported each year prior to the discovery of the homicides in Port Coquitlam.”90 In 2007 it is reported that “15 prostitutes were killed as a direct result of their profession, up from an average of 7 per year for the previous decade.”91

42. In 2006 the Report of the Standing Committee on Justice and Human Rights noted that “at least 79 prostitutes were murdered while engaging in prostitution activities,”92 and Crown witness, Susanne Wallace-Capretta, reported that “between 1996 and 2006, there were 77 homicides against prostitutes as a result of their profession.”93 Whatever the precise numbers may be, it is important to note that the high prevalence of violence against sex trade workers had been well-documented many years prior to Statistics Canada’s decision to characterize the sex trade as an “occupation at risk.”

43. In 1985, the Special Committee on Pornography and Prostitution (Fraser Committee) remarked that “one has to conclude that the way in which street prostitution is currently carried out, results in a profession which is often dangerous, especially to the prostitute, but also to the customer at times.”94 In blunt terms the Committee noted that “prostitutes agree that life on the streets is a ‘hell-hole’.”95 A few years later, in 1989, the Department of Justice’s mandatory three year review of the new communications law, Street Prostitution: Assessing the Impact of the Law, expressed some concern that “some prostitutes in all the main study sites stated that they worked under more tense conditions…according to many prostitutes, area restrictions –

89 Statistics Canada, Homicide in Canada, 2005 by Mia Dauvergne and Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2006), Application Record, Vol. 86, Tab 172, p. 26363. 90 Statistics Canada, Homicide in Canada 2006 by Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2007), Application Record, Vol. 86, Tab 173, p. 26384. 91 Statistics Canada, Homicide in Canada, 2007 by Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2008), Application Record, Vol. 86, Tab 174, p. 26406. 92 House of Commons, Report of the Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws, Application Record, Vol. 82, Tab 164, p. 24926. 93 Affidavit of Suzanne Wallace-Capretta, Application Record, Vol. 64, Tab 128, pp. 18932-18933. 94 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154, p. 20896. 95 Ibid,, p. 20912.

21 of 243 aimed at removing them from main prostitution strolls – simply forced them to work in more isolation, increasing the danger to them.”96

44. Ten years later, in 1995, Statistics Canada released its one and only Juristat report on prostitution, Street Prostitution in Canada. This report provided concrete details of the “hell- hole” which the Fraser Committee had referred to:

A recent study confirms that physical and sexual assaults on street prostitutes are commonly carried out by clients, pimps and boyfriends….Sometimes assaults are serious enough to cause death. Indeed, 63 known prostitutes were found murdered between 1991 and 1995. Most (50) appear to have been killed by customers. Eight were though to be killed by pimps or in drug-related incidents. The remaining deaths were at the hands of husbands, common-law spouses and boyfriends. Almost all of the murdered prostitutes were female: 60 of the 63 who died between 1991 and 1995. Seven of the prostitutes killed were juveniles aged 15-17 – all females. During this period, known prostitutes accounted for 5% of all female homicides.97

45. Based upon his research in Vancouver, Professor John Lowman concluded that the murder rate for prostitutes “represents roughly 60 to 120 times the murder rate of adult women in the general Canadian population”.98 In cross-examination some doubt was cast on the accuracy of this figure99; however, Professor Augustine Brannigan submitted a report to the Department of Justice in 1994, Victimization of Prostitutes in Calgary and Winnipeg, in which he concluded that “prostitutes are far more likely to be murdered (20 times higher), assaulted (1.7 times higher), raped (9.2 times higher) and robbed (16 times higher).100 The Crown chose not to the cross-examine Professor Brannigan.

46. It is clear from Professor Brannigan’s report that there has been awareness of the violent risks confronted by street sex workers for years prior to the “discovery of the homicides in Port Coquitlam”. In 1994 Professor Brannigan was commissioned to write this report because:

96 “Street Prostitution: Assessing the Impact of the Law – Synthesis Report” – Research Section, Department of Justice, Application Record, Vol. 75, Tab 157, p. 22353. 97 Statistics Canada, Street Prostitution in Canada by Doreen Duchesne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 1997), Application Record, Vol. 86, Tab 166, p. 26236. 98 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4156, para. 25. 99 Cross-Examination of John Lowman (Volume 2), Application Record, Vol. 22, Tab 53, pp. 6402-6406. In cross- examination it was pointed out that Professor Lowman had compared homicide rates for sex workers with murder rates for Canadian women, and the Crown suggested that by comparing these two different rates, Professor Lowman arrived at a much greater differential in violence against Canadian women as opposed to violence against sex workers. 100 “Victimization of Prostitutes in Calgary and Winnipeg”, Application Record, Vol. 8, Tab 34(D), p. 2153.

22 of 243 In December of 1985, Parliament passed Bill C-49. It created a summary offence for anyone communicating in public for the purposes of prostitution as specified in s.213 of the Criminal Code of Canada (formerly s.195.1). In Calgary, since the law was passed, there have been at least thirteen known homicides of street prostitutes. In Winnipeg, there have been at least three reported cases. In Edmonton, we identified three specific cases but one news report referred to as many as six cases since 1986. The experience of these cities is not unique. There have been several dozen murders of prostitutes across Canada since communication for the purposes of prostitution was made unlawful. The Centre for Justice Statistics began to keep records of occupations of murder victims in 1991. It reports that in the three years from 1991-1993, 31 prostitutes were murdered in the course of their work. The rationale for this investigation arises at least in part from concerns voiced by stakeholders and advocacy groups that changes created by the anti-communication law may have made prostitution a more dangerous business.101

47. Although the victims studied in this report were “virtually all”102 street sex workers, Professor Brannigan did conclude that “the violence does not appear to be related to the communication law, at least not directly”.103 However, it is clear from this report that risk of violence at the hands of killers and serial killers extends beyond Robert Pickton and Lower East- Side Vancouver, and it is clear that the government was aware of the problem.

48. In 1994 and 1995, the Federal/Provincial/Territorial Working Group on Prostitution commissioned studies on violence against prostitutes in Halifax, Montreal, Toronto, Calgary, Winnipeg and Vancouver (Note: Professor Brannigan’s study referred to in the previous paragraph was commissioned for this Working Group, and Professor John Lowman was commissioned to complete the research in the Vancouver site, as will be discussed). The conclusions drawn by the Working Group in 1998 were as follows:

The objective of these studies was to understand the impact of the communicating provision (s. 213) on homicide and violence against street prostitutes. The studies documented that the atmosphere on the street in each of the sites had become more tense, although a causal link between enforcement and prostitutes’ deaths could not be established.

Specifically, the following was found. In Vancouver, researchers felt that the implementation of s. 213 had consolidated the criminal status of street prostitutes, forced them to work in more remote areas and pushed them into more adversarial relationships with police. This situation was believed to contribute to the murder

101 “Victimization of Prostitutes in Calgary and Winnipeg”, Application Record, Vol. 8, Tab 34(D), p. ix. 102 “Ibid,, p. 2166. 103 “Ibid,, p. 2178.

23 of 243 of street prostitutes. In Calgary, prostitutes reported that the street had become a much more tense and fearful milieu. Yet increases in violent crimes against street prostitutes were mirrored by an increase in violent crimes against women in general. This provides a competing explanation. In Montreal, there was evidence that enforcement of s. 213 had resulted in prostitutes working in more remote areas, being less careful in choosing from a diminished number of customers and being further entrenched in drug use than had been reported in earlier studies.104

49. The Working Group also noted that there is a low clearance rate for homicides against prostitutes. Taking figures from the 1995 Juristat, Street Prostitution in Canada, the report noted that “at the end of 1996, 34 incidents (54%) reported between 1991 and 1995 remained unsolved. In comparison, 20% of homicide victims other than known prostitutes were unsolved”.105 In other words, there is a 46% clearance rate for resolving cases against sex workers, whereas there is an 80% clearance rate for all other victims. Professor John Lowman concluded that the clearance rate for sex workers is as low as 34% as compared to the clearance rate for homicide which stood at 90% in the 1960s and has fallen to 73% in recent years.106 Similarly, in his 1994 study of 20 homicide cases against street sex workers in Calgary and Winnipeg, Professor Brannigan noted that only 7 of 20 led to a charge and only 3 charges resulted in convictions.107

50. In recent years, the problem of increasing violence against sex workers has led to the creation of special units within local police forces to work with street workers. Police officers, called as witnesses for the Crown acknowledged that special units were necessary in Toronto and Vancouver partly as a result of a level of distrust between sex workers and police officers who have a mandate to arrest them for their activities.108 In fact, virtually all witnesses called by the Applicant, both experiential and expert, testified as to the high level of distrust between sex workers and police officers and the perception or belief that some police are indifferent to the violence experienced by sex workers, and in some cases the police are the perpetrators of

104 “Federal/Provincial/Territorial Working Group On Prostitution”, Application Record, Vol. 79, Tab 160, p. 23874. 105 “Federal/Provincial/Territorial Working Group On Prostitution”, Application Record, Vol. 79, Tab 160, p. 23874; Statistics Canada, Street Prostitution in Canada by Doreen Duchesne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 1997), Application Record, Vol. 86, Tab 166, p. 26236. 106 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4165, para 38; In cross-examination the actual clearance rate became somewhat confused as it became unclear whether professor Lowman only looked at convictions or whether the clearance rate included all other dispositions. Cross-Examination of John Lowman, Application Record, Vol. 21, Tab 53, p. 6154 l. 10 – p. 6160 l. 11. 107 “Victimization of Prostitutes in Calgary and Winnipeg”, Application Record, Vol. 8, Tab 34(D), pp. 2168-2169. 108 Affidavit of JoAnn McCartney, Application Record, Vol. 35, Tab 82; Affidavit of Randy Cowan, Application Record, Vol. 35 Tab 84; Affidavit of Oscar Ramos, Application Record, Vol. 35, Tab 86; Affidavit of Sonia Joyal, Application Record, Vol. 36, Tab 88; Affidavit of Eduardo Dizon, Application Record, Vol. 37, Tab 91.

24 of 243 violence.109 When street workers from the Downtown East-Side of Vancouver went missing there were complaints that the police were indifferent and ignored express concerns that a serial killer was preying on sex workers.110

51. Within a year of the arrest of Robert Pickton with respect to 26 street sex workers who had gone missing from Vancouver’s lower east side, the R.C.M.P. in Edmonton on October 14, 2003 announced the creation of a special division, Project KARE, to deal with 82 cases of unsolved homicides and missing persons from “high-risk lifestyles” in the Edmonton/Calgary corridor.111 The issuance of a $100,000 reward and the creation of a 50 member team has not led to a higher clearance rate.112 Only 2 of the 41 unsolved homicides has led to charges, and, in fact, since the creation of Project Kare there has been at least 5 new homicides involving street sex workers.113

52. The problem of missing street sex workers is not confined to Vancouver and the Edmonton/Calgary corridor. Jody Patterson of PEERS (Prostitution Empowerment, Education and Resource Society) deposed that “it is naive to blame all of the violence on a single serial killer…because violence is systematic in outdoor prostitution”114. She points out that in her home town of Victoria, British Columbia there are “around twelve…in the last decade” missing

109 Affidavit of Terri-Jean Bedford, Application Record, Vol., 2, Tab 11, p. 52. para. 30; Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p. 165, para. 4; Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, pp. 298-299, paras. 21-23; Affidavit of Wendy Babcock, Application Record, Vol. 4, Tab 19, p. 753, paras. 7-8; Affidavit of Sue Davis, Application Record, Vol. 5, Tab 22, p. 934, paras. 11, 13; Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p. 1302-1303, paras. 10, 12; Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, pp. 1575-1576, para. 8; Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p. 1687-1689, paras. 7, 14-15; Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, pp. 1835- 1836, paras. 8-11; Affidavit of Linda Shaikh, Application Record, Vol. 8, Tab 31, p. 1863, para. 5; Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, pp. 1865-1867, paras. 4, 6; Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, pp. 2378-2379, para. 10; Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p. 2680, para. 9; Affidavit of Gayle MacDonald, Application record, Vol. 11, Tab 42, pp. 2770-2771, para. 9; Affidavit of Eleanor Maticka-Tyndale, Application record, Vol. 12, Tab 45, pp. 3093, 3097-3099, paras. 5, 21-22, 26-28; Jacqueline Lewis and Eleanor Maticka-Tyndale, “Licensing Sex Work: Public Policy and Women’s Lives” (2000) 26 Can. Pub. Policy 437, Application Record, Vol. 12, Tab 45(C), pp. 3177-3178; Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, pp. 3424-3425, paras. 24-26; Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), pp. 3538-3541; Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp. 6810, 6819. paras. 10, 37. 110 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4151, 4165, paras. 13, 37; Cross- Examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p. 6097 l. 21 – p. 6099 l. 8; Affidavit of Elliot Leyton, Application Record, Vol. 10, Tab 40, p. 2680, para. 9. 111 Cross-examination of Jim Morrissey, Application Record, Vol. 34, Tab 79, p. 9817. 112 Cross-examination of Sonia Joyal, Application Record, Vol. 36, Tab 89, p. 10593. 113 Ibid,, pp.10590, 10594-10595. 114 Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p. 1836.

25 of 243 outdoor sex workers and several unsolved murders of sex workers.115 Oscar Ramos of the Vancouver Police Department, testified that the problem of vulnerability to predators has not subsided since the arrest of Robert Pickton:

Q. Were you around in 2007 in February when there was a march in the Downtown Eastside? About 1,000 marched through to complain that nothing’s changing? You aware of that?

A. Not the specific march, but I’m aware that there have been marches in there have been happening, yes.

Q. The arrest and conviction of Mr. Pickton, do you feel that eliminates the risk that sex workers are subjected to in the lower tracks? Do you think eliminates it? We’ve got a perpetrator. It’s over.

A. No.

Q. So you would agree that regrettably there are probably other psychopathic killer or sexual psychopaths trolling looking for people? It happens, continues to happen? …. Q. And since Pickton you were aware of the conviction of Don Mitchell Bakker?

A. Yes.

Q. And aware that he was alleged to have sexually tortured dozens of sex trade workers, correct?

A. Yes. 116

53. Similarly, Eduardo Dizon, of the Special Victim’s Unit of the Toronto Police Service, acknowledged that one factor taken into consideration in creating special unit was to avoid “what happened in Downtown Eastside Vancouver and in Edmonton, Calgary Project Kare”. In cross- examination he stated:

Q. But what happened in Downtown Eastside Vancouver and in Edmonton, it could happen here too?

A. Sure.

115 Ibid,, p. 1836. 116 Cross-examination of Oscar Ramos, Application Record, Vol. 36, Tab 87, pp. 10461-10462; Affidavit of Libby Davies, Application Record, Vol.9 Tab 37, pp. 2372-2373.

26 of 243

Q. In fact, there have been situations where sex workers in the greater Toronto area have been targeted by serial killers. That has happened here.

A. I don’t know killers. I know of serial rapists who have specifically targeted sex workers.

Q. Do you recall Marcello Palma? Does that name mean anything to you?

A. The name sounds familiar, but I couldn’t tell you.117

54. Kara Gillies, former Chair of the Board of Maggie’s (Toronto Prostitutes’ Community Service Project), testified that Marcello Palma shot 3 prostitutes, execution style, in a period of one hour in Toronto during the 1996 Victoria Day long weekend. All three victims worked on the street and their ages ranged from 19 to 31. Upon conviction for the three murders he commented that he was “getting rid of street scum.”118 Darlene Maurganne Mooney, former sex-trade worker and Aboriginal Youth Caseworker, noted that the violence against street workers is heightened with respect to Aboriginal sex workers, and that many of the women found on Pickton’s farm were aboriginal. She deposed that “social marginalization, racism, and sexism combine to increase the risk of violence for aboriginal women who engage in the sex trade. Justice David Wright noted this reality in the 1996 trial of John Martin Crawford for the murder of three aboriginal women in Saskatchewan. The Stolen Sisters report recounts that Crawford was attracted to his victims for four reasons: they were young, they were women, they were native, and they were prostitutes.”119

55. In 2001 the Green River Killer, Gary Ridgway, was finally caught after decades of eluding police. In pleading guilty to the murders of 48 street sex workers in the North-West United States, he made the following statement:

I picked prostitutes as my victims because I hate most prostitutes and I did not want to pay for sex. I also picked prostitutes as victims because they were easy to pick up without being noticed. I picked prostitutes because I thought I could get away with it.120

117 Cross-examination of Eduardo Dizon, Application Record, Vol. 37, Tab 92, p. 10736. 118 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p. 1305. 119 Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p. 1691. 120 Affidavit of Elliot Leyton, Application Record, Vol. 10, Tab 40, p. 2681; In-court statement of Gary Ridgeway, dated November 5, 2003, Application Record, Vol. 10, Tab 40(E), p. 2706.

27 of 243 56. Dr. Elliot Leyton, Professor Emeritus at Memorial University, deposed that there is a type of serial killer, the Mission-Oriented Type, who sets out on a mission to rid society of persons considered “beneath contempt” such as prostitutes. He noted that Ridgway’s statement “summarizes what appears to go on in the minds of most of these killers.”121

57. Dr. Leyton is the Past President of the Canadian Sociology and Anthology Association and has authored/edited eleven books and many essays in scholarly journals.122 He currently holds a Research Fellowship position at The Queen’s University of Belfast in Ireland, and has lectured on homicide at the Royal Canadian Mounted Police College in Ottawa and the National Police College in Poland, as well as the FBI Academy.123 Much of Dr. Leyton’s career has been devoted to the anthropological study of ‘social problems’, particularly the social phenomenon of serial murder.124 In 2004, the National Film Board produced a film about the witness’s life’s work entitled, ‘The Man Who Studies Murder’, which premiered at the Montreal Film Festival and aired on CBC’s Television’s, The Nature of Things as a two-part mini series.125 In 1983, Dr. Leyton published a book on serial murder called “Hunting Humans”.126

58. Dr. Leyton’s work and expertise does not extend to the study of the sex trade; however, from his research and consultations with various police forces (including the RCMP, the FBI Academy, and Scotland Yard), Dr. Leyton believes prostitutes represent society’s invisible, overlooked victims. According to the witness, sex workers constitute a significant proportion of homicide victims.127 Compared to the average person, street sex workers represent easy targets for serial predators because of their accessibility; it is much more difficult for a stranger to lure the average person into their car, whereas street workers enter strange vehicles as part of their work and because of the “societal refusal to provide adequate protections”.128 Dr. Leyton

121 Affidavit of Elliot Leyton, Application Record, Vol. 10, Tab 40, p. 2681; In-court statement of Gary Ridgeway, dated November 5, 2003, Application Record, Vol. 10, Tab 40(E), p. 2706. 122 Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p. 2677. 123 Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, pp. 2677-2678. 124 Ibid,, p. 2678. 125 Ibid,, p. 2678. 126 Elliot Leyton, Hunting Humans McClelland & Stewart, 2005, Application Record, Vol. 10, Tab 40(D), pp. 2700- 2704. 127 Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p. 2680. 128 Ibid,, pp. 2679-2680.

28 of 243 suspects that prostitutes make up close to half of all serial killer victims.129 However, on cross- examination, he conceded that there is no hard data on this point.130

59. In his affidavit, Dr. Leyton expresses support for providing sex workers with a safe and clean place to work. From years of studying serial killers, he has “not come across any serial killer who kidnapped prostitutes from a [supervised] indoor location”.131 Accordingly, “we must cease our practice of forcing [sex workers] out on the streets, where they are subject to the tender mercies of pimps and passing psychopaths”.132 Since the late nineteenth-century, starting with the horrors of Jack the Ripper disemboweling street prostitutes with surgical precision, we have seen a repeating array of similar killers targeting street prostitutes: Gary Ridgway (Green River Killer – 48 victims, early 1980’s); Peter Sutcliffe (the Yorkshire Ripper – 13 victims – late 1970s); Arthur Shawcross (Genesee River Killer – 10 victims, late 1980’s) and Joel Rifkin (New York City – 9 victims, early 1990s).133

60. According to Dr. Leyton, the targeting of prostitutes by serial killers is compounded by the fact that society routinely overlooks and minimizes their personhood. Of the infamous abduction and murder of street workers in Vancouver’s East end in the 1990’s, the witness remarks, “ nobody [in the police force] wanted to know: it was only the worthless ones disappearing, so nothing need be done, and the killings continued for years”.134 Dr. Leyton similarly recounts police inaction surrounding the murder of dozens of prostitutes in Coquitlam, BC—their remains left on a pig farm. To Dr. Leyton, such ambivalence suggests “some lives are more sacred than others.”135

B. The Perception and Experience of the Women Working in the Sex Trade

(i) Wendy Harris

61. Wendy Harris was born on November 27, 1956, in Oshawa, Ontario. Entering the sex trade in order to support her child, Ms. Harris remained in the industry for twenty years.136 From 2004-2006, Ms. Harris worked with Streetlight, “an advocacy and outreach program designed to

129 Ibid., p. 2680. 130 Cross-Examination of Elliot Leyton, Application Record, Vol. 10, Tab 41, p. 2724. 131 Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p. 2682. 132 Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p. 2681. 133 Ibid., p. 2679. 134 Ibid., p. 2680. 135 Ibid., p. 2680. 136 Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, p. 1574

29 of 243 assist sex trade workers with common issues relating to legal and safety concerns”.137 Throughout her career in the sex trade, Ms. Harris attempted to stay away from street prostitution; the majority of her experience has been indoors.138 Yet, the affiant believes “a great deal of the harm that is perpetuated against women in the sex trade industry is a result of the laws which [promote working on the street]…I have heard numerous stories where women, out of fear of prosecution have moved out of their homes and onto the streets only to be viciously attacked.”139

62. Between approximately 1989 and 2000, Ms Harris ran an escort service out of Cape Breton.140 She claims that “working from a specific location with drivers that escorted the women to and from a location meant that there always existed some safeguards for the women…we employed the use of special code words that would instruct the driver that we weren’t comfortable with the situation. These safety features contributed to the fact that the women with whom I worked were never seriously harmed.”141 Furthermore, Ms. Harris describes the agency as a “safe place for women to come because it was all female…and we all looked after ourselves. We used to call it the three-day rule. You show up all beaten up or coming off drugs, you get there three days, you know, eat, sleep, make yourself feel better, and then get up and decide what you’re going to do about it…”142

63. Ms. Harris has been charged twice with bawdy house offences, with the second instance resulting in a thirty-month period in custody. 143

(ii) Linda Shaikh

64. Linda Shaikh was born in British Colombia. She entered the sex trade in 1971 due to financial reasons.144 For thirty-five years, Ms. Shaikh worked in the sex industry, beginning her career on the streets.145 She has worked in the Parkdale neighbourhood of Toronto as well as in

137 Ibid., p. 1574 138 Ibid., p. 1574 139 Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, p. 1575 &, Cross-Examination of Wendy Harris, Application Record, Vol. 7, Tab 28, p. 1593. 140 Cross-Examination of Wendy Harris, Application Record, Vol. 7, Tab 28, p. 1612. 141 Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, p. 1575. 142 Cross-Examination of Wendy Harris, Application Record, Vol.7, Tab 28, p. 1670. 143 Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, p. 1575. 144 Affidavit of Linda Shaikh, Application Record, Vol. 8, Tab 31, p. 1862. 145 Ibid., p. 1862.

30 of 243 suburbs such as Scarborough. No longer engaging in sex work herself, Ms. Shaikh remains involved in the industry producing advertisements for women wishing to work as escorts.146

65. From her experiences working both indoors and outdoors as a sex worker, Ms. Shaikh believes that street prostitution “poses a much higher degree of danger of bodily harm” than indoor venues.147 The witness describes instances on the street where she was subjected to “robberies, forced sexual acts, and gang-rapes.”148 Upon detention by police, she recounts being forced to perform sexual acts on officers.149 In contrast, the witness only experienced one instance of assault while working indoors.150 She notes that on this occasion a neighbor heard her cries and “alerted the police.” 151 Ms. Shaikh adds, “this was also the only instance in which the perpetrator was located and charged by the police.”152

66. Ms. Shaikh asserts that the current legal environment perpetuates violence against street workers: “the justice system…works to sanction street workers by subjecting them to fines, which only forces them out on the streets for longer periods to be able to sustain themselves financially.”153 Moreover, since the legal ramifications of working indoors are more serious than the ramifications for working on the streets, the witness felt she had no choice but to work outdoors: “I was put in a position where I had to choose between my safety and my freedom.”154

(iii) Wendy Babcock

67. Wendy Babcock was born in Toronto on May 29th, 1979.155 At the age of eleven, she left her home due to physical, sexual, and emotional abuse by her parents.156 At the age of fourteen, Ms. Babcock entered a group home but was turned out within a year for doing drugs.157

146 Ibid., p. 1862. 147 Ibid., p. 1862. 148 Affidavit of Linda Shaikh, Application Record, Vol. 8, Tab 31, p. 1863. 149 Ibid., p. 1863. 150 Ibid., p. 1862. 151 Ibid., p. 1863. 152 Ibid., p. 1863. 153 Ibid., p. 1863. 154 Ibid., p. 1864. 155 Affidavit of Wendy Babcock, Application Record, Vol. 4, Tab 19, p. 751. 156 Cross-Examination of Wendy Babcock, Application Record, Vol. 4, Tab 20, p. 839. 157 Ibid., p. 839.

31 of 243 After being let go as a ward of the Children’s Aid Society, she began work in the sex trade in order to meet her basic living needs and afford an education.158

68. Ms. Babcock currently works as a harm-reduction worker at Streethealth in Toronto, promoting sex-worker rights and safety.159 In this role, she also compiles ‘bad date’ lists for a variety of sex-worker agencies in the Greater Toronto Area and has compiled statistical information regarding the incidences of violence against women working on the streets.160 Reports of violence against sex workers range from assault, rape, sexual assault, robbery, kidnapping, weapons, threats, choking, refusal to wear a condom, removal of condom, impersonating a police officer and attempted drowning.161 Of the 78 reports: 36 involved assault, 21 involved sexual assault, 15 involved threats, 15 involved weapons, 11 involved rape, 10 involved robbery, 8 involved chocking, and 7 involved forcible confinement.162 Based on the statistical report regarding the incidences of violence against women working in the industry, as well as her own personal experience, Ms. Babcock contends that “the greatest dangers facing sex workers are the prevalence of incidences of rape, robbery and in some instances kidnapping.”163 From working at Streethealth, the affiant is familiar with the dangers present in outdoor prostitution. Throughout the twelve years Ms. Babcock worked as an indoor sex worker, she did not experience any violence.164

69. The witness identifies abuse and neglect by police officials toward prostitutes as a major problem contributing to the victimization of sex workers. During her testimony before the House of Commons Subcommittee on Solicitation Laws in 2005, Ms. Babcock remarked, “It is an outrage that we have so many people who believe that the crime of prostitution outweighs that of any abuse or assault committed against a woman who is involved in this profession. The fact that assaults, rape, confinement, and even murder are being committed and women are afraid to come forward to the authorities should tell us something. It should tell us that these laws, in

158 Affidavit of Wendy Babcock, Application Record, Vol. 4, Tab 19, p. 751. 159 Ibid., p. 751. 160 Affidavit of Wendy Babcock, Application Record, Vol. 4, Tab 19, p. 751; Statistical compilation of the incidences of violence against sex workers gathered by Wendy Babcock, Application Record, Vol. 9, Tab 19(B), pp. 762-763. 161 Statistical compilation of the incidences of violence against sex workers gathered by Wendy Babcock, Application Record, Vol. 9, Tab 19(B), pp. 762-763. 162 Ibid., pp. 762-763. 163 Affidavit of Wendy Babcock, Application Record, Vol. 4, Tab 19, p. 752. 164 Ibid., p. 752.

32 of 243 effect, are increasing the murder and violence against prostitutes while doing nothing to reduce the number of women who get into this profession.”165

(iv) Kara Gillies

70. Kara Gillies was born in Glasgow, Scotland in 1969.166 She has resided in the Toronto area since 1970 and began working in the sex trade in 1989.167 After working as an exotic dancer and street-based prostitute for one year, Ms. Gillies worked in two separate massage parlours as an erotic masseuse.168 In 1991, she established her own business out of her home as an independent operator of the sex trade.169 A year and a half after operating this business, Ms. Gillies was charged with keeping a common bawdy house and as a result of those criminal charges, returned working for a third party in massage parlours.170 Ms. Gillies still works as a sex worker on an occasional basis. She has a “handful of regular clients who [she] has known for ten to fifteen years, who [she sees] on an irregular basis.”171

71. As an advocate for sex workers, Ms. Gillies has extensive experience with organizations that deal with the sex trade. In addition, Ms. Gillies has produced and hosted The Shady Lady, a radio show about sex work issues. She also formed the Toronto Migrant Sex Workers Advocacy Group in 1998 and co-founded the Canadian Guild for Erotic Labour in 2004, an organization that advocates for the labour rights of sex workers.172

72. Ms. Gillies has been involved in various positions from 1990-2006 with Toronto Prostitutes’ Community Service Project [Maggie’s] including outreach worker, legal advocacy coordinator, Administrative Coordinator, and Chair of the Board of Directors.173 She continues to volunteer at Maggie’s, providing public education and outreach services. As Maggie’s official representative, Ms. Gillies states that Maggie’s recognizes sex work as “legitimate labour” and

165 Presentation made by Wendy Babcock to the House of Commons Subcommittee on Solicitation Laws in 2005, Application Record, Vol. 4, Tab 19(C), pp. 765-766. 166 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p. 1297. 167 Ibid., p. 1297. 168 Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1447, l.10-25. 169 Ibid., p. 1448, ll. 1-2. 170 Ibid., p. 1448, ll. 2-5. 171 Ibid., p. 1448, ll. 17-19. 172 Curriculum Vitae of Kara Gillies, Application Record, Vol. 6, Tab 24(B), p. 1424; Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p. 1298. 173 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, pp. 1297, 1300.

33 of 243 that the criminalization of prostitution creates “barriers to health, status and social well-being for women in the sex trade.”174

73. Ms. Gillies coauthored a report with Nora Currie entitled Bound by Law: How Canada’s Protectionist Public Policies in the Areas of Both Rape and Prostitution Limit Women’s Choices, Agency and Activities (Bound). As principal researcher of Bound,175 particularly the sex work portion of the study, she conducted one-on-one interviews with fifteen women with experience in the sex trade in four Canadian provinces.176 Additionally, ten female sex workers participated in focus group discussions.177 The results of the qualitative research study reveal that the laws designed to protect sex workers actually limit their options, activities and sense of agency.178 She stresses that criminalization has categorized sex workers as deviant people undeserving of the same human rights and labour protections as other members of society. Ms. Gillies also discovered from Bound that the exiting and educational programs imposed on sex workers through the criminal system as a form of alternative measures are viewed as paternalistic and coercive by prostitutes.179 It should be noted that although Bound has not been published, it is the plan of the co-authors/principal researchers to separate the two policy components of the study (sex workers and sexual assault) and have them published separately.180

74. Furthermore, Ms. Gillies found that because of the criminal provisions, most prostitutes are not comfortable approaching police to ensure their safety. The negative stigma surrounding sex workers is reinforced through criminalization. Although Ms. Gillies acknowledged during her cross-examination that “criminalization is not the sole cause of” the social stigma associated with prostitution, she believes that “criminalization reflects and reinforces the existing stigma.”181 Moreover, Ms. Gillies contends that “the minute we say an activity, and then by extension the people involved in that activity, are criminal, we send a very strong message to society that this is a group of people who are somehow aberrant or somehow less worthy of, if not rights, then certainly equal participation in our society.”182 Ms. Gillies claims that sex

174 Ibid., p. 1298. 175 Curriculum Vitae of Kara Gillies, Application Record, Vol. 6, Tab 24(B), p. 1419. 176 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p. 1298. 177 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p. 1298. 178 Ibid., p. 1300. 179 Ibid., p. 1303. 180 Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1477, l.21-23. 181 Ibid., p. 1464, ll. 15-17. 182 Ibid., p. 1464, ll. 17-22.

34 of 243 workers are in a “no-win situation where they cannot count on police for protection, yet it is illegal for them to arrange for protection themselves.”183 Ms. Gillies identifies that sex workers in both indoor and outdoor venues are in a “constant struggle” between avoiding prosecution and ensuring their physical safety.184 She argues that there are not many professions where “individuals are forced to choose so starkly between their physical well-being and legal status, especially when the occupation/activity itself is fully legal.”185

75. In cross-examination, Ms. Gillies acknowledged that there have been indoor workers who have been assaulted and “definitely” murdered.186 She states that “indoor workers, particularly those in out-call, are subjected to violence and the current legal system endangers [their] lives and well-being.187 Nevertheless, from conversations with hundreds of indoor sex workers, Ms. Gillies believes that indoor venues are more economically viable and safer than outdoor locations. She claims this is because of the differences in power in indoor versus outdoor settings; in indoor venues, clients are invited into the sex worker’s space and therefore act in “guest mode” while the sex worker holds all the power. On the other hand, in street prostitution, the client possesses control over the sex worker.188

76. Ms. Gillies recognizes that the biggest challenge for indoor sex workers is current legislation, which affords them no protection under labour and employment laws. She stresses that sex workers have employment issues like individuals in other sectors and do not have outlets to turn to when problems arise. Furthermore, sex workers are unable to access government programs, like EI, which prevent them from benefiting from these programs in the future.189

77. With respect to pimp related violence, Ms. Gillies believes that violence involving “a street-based manager exercising undue control and being abusive” is largely a thing of the past.190 The Bound study found that only two of the study’s participants mentioned violence or other criminal abuse by business managers or pimps191 and that the violence experienced by those two participants “took place at a time when the traditional ‘street pimp’ dynamic was at

183 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p. 1303. 184 Ibid., p. 1300. 185 Ibid., p. 1302. 186 Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1492, ll. 14-17. 187 Ibid., ll. 4-7. 188 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p. 1301. 189 Ibid., p. 1304. 190 Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1528, ll. 14-19. 191 Ibid., p. 1526, ll. 9-12.

35 of 243 play.”192 During cross-examination, Ms. Gillies acknowledged that “although…all the women [she] talked to, said that it was something in the past, [she] felt it was important to address it in case it was still happening, albeit on a very small scale and also because it really holds a place in people’s mythologies and perceptions about the sex trade.”193 Ms. Gillies also mentioned during her cross-examination that she has heard women in Halifax discussing how violent pimp controlling in street prostitution has changed over the past ten to fifteen years in the street sex trade.194 Despite the diminished violence from the “traditional street pimp”, Ms. Gillies acknowledges that “violence still occurs at the hands of drug dealers, at the hands of personal partners, at the hands of abusive residents groups at the hands of the police…unfortunately, violence is an extreme reality in sex workers’ lives, particularly street working sex workers, and unfortunately, the legal situation under which street sex workers need to operate exacerbates and in some cases causes the problem.”195

(v) Darlene Maurganne Mooney

78. Darlene Maurganne Mooney was born in Pembroke, Ontario. She is of Ojibwa, Plains Cree and Norwegian descents and identifies herself as bi-racial.196 She has received accreditation through George Brown College’s Assaulted Women and Children’s Counselor/Advocate Program and currently works as a victims assault counselor.197 Prior to her work as a counselor, Ms. Mooney engaged in various forms of employment, including working for the Canadian military and as a telemarketer.198 At the age of 30, Ms. Mooney entered the sex trade in order to exit the welfare system. As a single mother, she found it “less demeaning to provide sexual services for money than to ask for a welfare cheque.”199 As a sex worker, Ms. Mooney only worked in indoor venues. Although she did have “bad dates”, Ms. Mooney did not experience any physical harm or violence working indoors.200 Ms. Mooney claims that without the help of

192 “Bound By Law: How Canada’s Protectionist Public Policies in the Areas of Both Rape and Prostitution Limit Women’s Choices, Agency and Activities”, Application Record, Vol. 6, Tab 24(A), p. 1358. 193 Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1528, ll. 4-9. 194 Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1528, ll. 9-13. 195 Cross Ibid., p. 1528 l. 21 – p. 1529 l. 2. 196 Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p. 1685. 197 Ibid., p. 1686. 198 Ibid., p. 1685. 199 Ibid., p. 1686. 200 Ibid., p. 1686.

36 of 243 organizations that assist sex workers, she “might not have survived.”201 These organizations taught her how to negotiate with clients and how to create a safe work environment. However, she acknowledges that, “as a sex worker, it is a privilege to be able to work indoors” due to the high costs that may arise when advertising and renting a space.202

79. Since 2000, Ms. Mooney has acquired extensive experience as a counselor and advocate in the Toronto area.203 She has worked for many community-based organizations, some of which provide services to sex workers (Red Door Women’s Shelter, Maggie’s, PEERS, Anduhyaun, Assaulted Women’s Helpline of Ontario).204 Currently, Ms. Mooney works as an Aboriginal Youth Courtworker for the Aboriginal Legal Services of Toronto.205 In 2001, Ms. Mooney served as the outreach coordinator for Maggie’s Toronto Prostitutes Safer Sex Project where her team conducted focus groups for each sex work category: indoor, outdoor and dancer.206 Ms. Mooney notes that a common theme that came out of conversations with outdoor sex workers was their difficult relationship with the police, in particular their mistrust of law enforcement officials.207

80. In 2006, Ms. Mooney formed “Sex Worker’s Community Alliance”, a lobby group whose primary project is the creation of a national on-line network that will provide sex workers across Canada with resource information.208 One of the main objectives of this group is to connect Native reserves with urban centres to address the issue of missing Aboriginal women.

81. From her work as a crisis counselor, Ms. Mooney observes how outdoor prostitution leaves sex workers extremely vulnerable to violence. Ms. Mooney has counseled many street sex workers who have spoken of “rapes they experienced because they needed a place to stay” or of men who have “targeted street workers for sexual assaults.”209 In her report Invisible Tragedy, Ms. Mooney stresses that the communication provisions of the Criminal Code increase the health and safety risks of street sex workers because these women are forced to work in unfamiliar

201 Ibid., p. 1686. 202 Ibid., p. 1686. 203 Ibid., p. 1686. 204 Ibid., pp. 1686-1688. 205 Ibid., p. 1688. 206 Ibid., p. 1687. 207 Ibid., p. 1687. 208 Ibid., pp. 1688-1689. 209 Ibid., p. 1689.

37 of 243 environments where they are more likely to be attacked due to their fears of being arrested.210 Ms. Mooney states that this threat of violence is magnified for Aboriginal street sex workers due to the combined social marginalization, racism and sexism experienced by Aboriginal women.211

82. In contrast, Ms. Mooney believes that sex workers who work in indoor venues suffer the most violence at the hands of the police. She states that indoor “[s]ex workers face the threat of police violence because the bawdy house laws criminalize transactions that occur indoors between consenting adults. The police can arrest a sex trade worker for practicing her trade, extort free sexual services, or use information about her engagement in the trade against the sex trade worker.”212 Though not devoid of any risks, Ms. Mooney believes that working indoors provides security to sex workers as it allows them to negotiate terms with the client ahead of time and avoid surprises.213

83. In Invisible Tragedy, Ms. Mooney stresses that because s.213 is so easily enforceable, it is nearly impossible for a street prostitute to work without obtaining a criminal record, which in turn makes it very hard to obtain any form of legal employment, “[ensuring] that a prostitute will have few economic options other than prostitution.”214 She believes that the criminal provisions surrounding prostitution are not effective and that criminalization “entrenches rather than reduces prostitution.”215

84. Ms. Mooney claims that “in any other field of work, it would not be permitted to have the law interfere with safety in the workplace.”216 Ms. Mooney extensively discussed this issue with CUPE members and the Canadian Labour Congress (CLC) at a convention in Ottawa and both groups are in favour of the decriminalization of sex work in its entirety. In Sex Work: Why It’s a Union Issue, CUPE identifies the criminalization provisions as a work safety matter and advocates for the decriminalization of prostitution and the unionization of sex workers in order to create a safer work environment.217 CUPE states that, “the criminalization of sex work is a form of discrimination. It says to people that sex worker have no rights and that it is their own fault if

210 “Invisible Tragedy: Aboriginal Women’s Issues & Sex Work”, Application Record, Vol. 7, Tab 29(B), p. 1733. 211 Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p. 1690. 212 Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p. 1689. 213 Ibid., p. 1690. 214 “Invisible Tragedy: Aboriginal Women’s Issues & Sex Work”, Application Record, Vol. 7, Tab 29(B), p. 1734. 215 “Ibid., p. 1736. 216 Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p. 1692. 217 CUPE, “Sex Work: Why It’s A Union Issue”, Application Record, Vol. 7, Tab 29(F), p. 1828.

38 of 243 they are victims of harassment and violence.”218 The paper acknowledge that fairness demands that sex workers receive the same rights and protection given to other workers, including “a minimum income, social security, sanitary and healthy workplaces, freedom from discrimination, harassment, violence and coercion, and the right to union representation.”219

(vi) Carol-Lynn Strachan

85. Carol-Lynn Strachan was born in Edmonton in 1960. She has been involved in the sex trade industry since the age of sixteen.220 Ms. Strachan has worked in various sectors of the sex trade, including exotic dancing, escort services, and prostitution.221 While on the streets, Ms. Strachan lived with the father of her childm who she admits was her “pimp.”222 Throughout her twenty-nine years in the industry, she has been subject to and witnessed countless episodes of abuse and violence.223 She has been beaten so badly while working on the streets that she is now unable to have more children; she has had “bricks and bottles thrown at [her] and been regularly shot at…”224 Ms. Strachan asserts “street level sex workers are subjected to violence and abuse on a daily basis…there is not a night that goes by while on the stroll that I do not hear about a sex trade worker who has been badly beaten or raped on the streets of Edmonton”.225

86. Aside from their victimization by johns and passers-by, sex workers also face mistreatment by police. Ms. Strachan argues that police officials are complacent regarding the assault of sex workers and often perpetuate their abuse by mistreating and harassing women.226 Upon being arrested for solicitation following a sting operation in Sherwood Park, Ms. Strachan claims “one officer turned to the other and told him to ‘turn up the heat.’ This was code for making it as cold as possible”.227 Over the years, the witness has heard stories of “sex workers being left in the back of paddy wagons on nights when it is minus 29 degrees Celsius for hours at

218 Ibid., p. 1829. 219 Ibid., p. 1831. 220 Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p. 1865. 221 Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p 1865. 222 Cross-Examination of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 33, p. 1922. 223 Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p. 1865. 224 Ibid., p. 1866. 225 Ibid., p. 1865. 226 Ibid., p. 1866. 227 Ibid., p. 1867.

39 of 243 a time. Women have complained of being taken approximately 30 miles out of town and then forced to walk back.”228

87. Ms. Strachan remarks that in 2001, sex workers in Edmonton began to go missing and by 2002, the number of missing women had escalated to such an extent that the RCMP began an investigation and set up a taskforce called Project KARE to address the problem of missing persons and sex worker safety in Alberta.229 According to Ms. Strachan, “Project KARE is currently investigating the disappearance of more than 80 women in Edmonton and Calgary alone.”230 “The project also encourages those living high risk lifestyles to register with police and provide their name, birth date, indentifying marks such as tattoos an scars, next-of kin, names of friends, places they hang out, and a hair sample for DNA.”231

88. In 2004, a bad outbreak of gonorrhea and syphilis began to infect sex workers in Edmonton.232 Though police were ordered by health officials to distribute informational pamphlets to “high risk” individuals, they refused to cooperate.233 Noting that sex workers lacked access to vital health information, Ms. Strachan set up a website (www.sexworkersofcanada.com) to educate women in the industry about STDs. The website has since expanded to include sex worker safety issues. Ms. Strachan regularly posts the names and photographs of missing and murdered women in Alberta along with a ‘bad date’ list.234 The website also functions as a message board where women may communicate “methods of dealing with the abuse and the stigma of working in the sex trade industry.”235

89. In 2006, Ms. Strachan wrote a letter to the Mayor, expressing concern that Edmonton’s new community deterrence program that created zero tolerance zones for prostitutes forced sex workers to withdraw into “increasingly remote and unsafe areas…putting themselves at even greater personal risk”.236 The affiant firmly believes that the welfare of sex workers depends on

228 Ibid., p. 1866. 229 Ibid., p. 1867. 230 Ibid., p. 1867. 231 Weber, Bob, “Police ID body found near Edmonton to be prostitute; adds to Project KARE, Application Record, Vol. 8, Tab, 32(C), p. 1883. 232 Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p. 1867. 233 Ibid., p. 1868. 234 Ibid., p. 1869. 235 Ibid., p. 1869. 236 Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p. 1869; Letter sent to Mayor Mandel of Edmonton from Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32(F), p. 1911.

40 of 243 their being able to work in groups or indoors.237 Having experience with both indoor and outdoor sex work, the witness characterizes indoor work as significantly more safe.238 Indeed, Ms. Strachan ran a licensed escort agency in 2003, where she did not experience a single instance of violence or abuse.239 As a safety precaution, the witness was able to hire a personal driver to drop her off at outcalls and wait for her in the car.240 While she acknowledges that drivers are not always able to provide assistance in case of every emergency, Ms. Strachan insists they provide an added sense of security241 “the clients were well aware that someone was always with me, looking out for my well being.”242

90. Reluctantly, Ms. Strachan returned to work on the streets in 2006, financially unable to pay escort-licensing fees or make rent payments on an indoor location.243

(vii) Susan Davis

91. Susan Carruthers, more commonly known in the sex-trade industry as Susan Davis, was born in Halifax, Nova Scotia.244 Growing up in Nova Scotia, Ms. Davis had a passion for poetry and music and learned to play the French horn, flute and obtained her Grade 9 certificate in piano through the Royal Conservatory of Music.245 She was involved in Girl Guides, was a certified lifeguard and after she graduated from high school, taught Grade 10 Geography.246 Ms. Davis is a trained hairdresser and entered the sex industry at the age of 18 out of her own volition to earn money for hairdressing school.247 Early in her career as a sex worker, she spent six months in the Sackville County Correctional Centre for possession for the purpose of trafficking.248 Ms. Davis has also been charged and convicted three times for communicating for the purpose of prostitution on the streets of Downtown Vancouver, and has pardons for all three offences.249

237 Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p. 1870. 238 Ibid., p. 1870. 239 Ibid., p. 1870. 240 Ibid., p. 1870. 241 Cross-Examination of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 33, p. 1951 242 Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p. 1870 243 Ibid., p. 1870 244 Ibid., p. 930. 245 Ibid., p. 930. 246 Ibid., p. 930. 247 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p. 930; Cross-examination of Susan Davis, Application Record, Vol. 5, Tab 23, p. 1173, l.4-23. 248 Cross-examination of Susan Davis, Application Record, Vol. 5, Tab 23, p. 1176, l.1-14. 249 Ibid., p. 1176 ll. 15-22.

41 of 243 92. Ms. Davis has over twenty years of experience in both outdoor and indoor sex work. Approximately six years of her career was spent working on the streets250. Ms. Davis started working in the sex trade for escort agencies on an out-call basis. From Halifax, she moved to Vancouver in the early 1990s where she initially worked on the street until she was able to move indoors.251 When Ms. Davis first started working on the streets of Vancouver, she received protection from organized crime (the Hell’s Angels) in order to escape the pimp family she belonged to, but was never affiliated with the bikers252. While working on the streets, Ms. Davis became addicted to drugs.253 Ms. Davis states that she was not addicted to drugs when she first started working on the street, rather she began using drugs due to the trauma she experienced while working as a street sex worker.254

93. When Ms. Davis first started working indoors, she shared a townhouse with other sex workers and would run advertisements in the paper and meet clients in the townhouse, “contrary [she’s] sure to the bawdy house provision.”255 Currently, Ms. Davis operates her own sex trade business out of her home in the West End of Vancouver where she lives with her partner. She has not used drugs since 1993.256

94. Ms. Davis believes that there has been a steady decline in the safety of sex workers since the implementation of the 1985 changes to the Criminal Code prostitution provisions.257 She stresses that it is extremely dangerous for sex workers to work on the street. As a street worker, Ms. Davis was “continuously exposed to violent and exploitative persons, including police, drug dealers, predatory clients and even other workers.”258 On the street, Ms. Davis was “raped more times than [she] can count” and was “physically and emotionally battered” every time she engaged in sex work.259 She states her physical safety was in jeopardy on a daily basis and the tremendous amount of violence she suffered on the street has “changed [her] life forever.”260 She

250 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p. 931. 251 Ibid., p. 931. 252 Cross-examination of Susan Davis, Application Record, Vol. 5, Tab 23, p. 1209 l. 14 – p. 1210 l. 8, p. 1231 l. 12 – p. 1232 l. 2. 253 Ibid., p. 1186, ll. 9-12. 254 Ibid., pp. 1187-1189. 255 Ibid., p. 1190, ll. 11-23. 256 Ibid., pp. 1186, 1191. 257 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p. 931. 258 Ibid., p. 934. 259 Ibid., p. 934. 260 Ibid., p. 934.

42 of 243 mentions one particular incident that occurred in 1993 where she was assaulted with a knife by a potential client while working on the streets of downtown Vancouver.261 A client also attempted to kill Ms. Davis in January 2004 when she was working for an escort agency on an outcall basis.262 Ms. Davis believes that her personal experiences of violence while engaged in prostitution are attributable to the fact that she was working in unfamiliar and unsecure environments over which she had no control.

95. In addition to her career as a sex worker, Ms. Davis has been an advocate for sex workers’ rights for three years.263 Her ultimate goal is to “gain human rights and labour standards for sex works in all aspects of the industry.”264 Currently, Ms. Davis is the communications liaison for Prostitution Alternatives Counselling and Education Society (of British Columbia) PACE Society, which provides programs and services to survival sex workers by sex workers.265

96. Ms. Davis is also involved with Living in Community, a Vancouver based project that aims to educate the community about the sex industry, in particular street level sex work.266 The project seeks to increase the health and safety of communities by reducing the negative impact of sex work for all members of communities throughout Vancouver.267 As a member of the steering committee, Ms. Davis has been involved in all aspects of the project.268 Living in Community’s draft acting plan entitled Balancing Perspectives in Vancouver’s Sex Industry puts forth several strategies that focus on community development, education, intervention, exiting the sex trade and legal responses.269

97. Ms. Davis is a member of the B.C. Coalition of Experiential Women (BCCEW) and contributed to the development of a research report entitled From the Curb: Sex Workers’ Perspectives on Violence and Domestic Trafficking. 270 As part of the research, BCCEW

261 Ibid., p. 934. 262 Ibid., p. 935. 263 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p. 931. 264 Ibid., p. 931. 265 Ibid., p. 931. 266 Ibid., p. 932. 267 Ibid., p. 932. 268 Ibid., p. 932. 269 “Living in Community: Balancing Perspectives on Vancouver’s Sex Industry” – Action Plan, September 2006, Application Record, Vol. 5, Tab 22(B), p. 1068. 270 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, pp. 932-933.

43 of 243 members conducted workshops with 112 sex workers in the BC/Yukon Region,271 one of which focused on violence.272 The research highlights that sex workers defined violence on the streets as activities ranging from “public humiliation and social exclusion to more extreme incidents of beatings, sodomy, rape, extreme violence and the abduction and murder of associates.”273 The research also revealed that when asked why individuals committed violence against sex workers, the women felt that “violence against sex workers is perceived as something that can be done with impunity: an attitude which encourages more violence.”274 The sex workers stated that they “feel disposable and feel that society does not take the violence they experience seriously”275 and that “mere accessibility makes them targets of violence and that if the larger community does not take action against the violence they experience, it will continue.”276 This research was presented at the International Harm Reduction Convention in Vancouver in March 2006 where the BCEW hosted a satellite session to discuss issues facing sex workers all over the world.277

98. In addition, Ms. Davis has provided sensitivity training to approximately 180 new police officers in the VPD and to federal employees in upper and middle management.278 She conducted this training with the “hope that they will endeavor to treat all members of the community with the same dignity as they would expect to be shown to themselves or their loved ones if their roles were reversed.”279 Ms. Davis stepped down from this role two and a half years ago.280

99. Although during cross-examination Ms. Davis acknowledged that, even with safety, precautions, violence can occur anywhere and anytime a sex worker is alone with a client,281 she stresses that the safest environment for her is working out of her home or at another secure indoor location. This is because she is able to defend herself in these environments and negotiate

271 “From the Curb: Sex Workers’ Perspectives on Violence and Domestic Trafficking”, Application Record, Vol. 5, Tab 22(C), p. 1116. 272 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p. 933. 273 “From the Curb: Sex Workers’ Perspectives on Violence and Domestic Trafficking”, Application Record, Vol. 5, Tab 22(C), p. 1125. 274 “From the Curb: Sex Workers’ Perspectives on Violence and Domestic Trafficking”, Application Record, Vol. 5, Tab 22(C), p. 1131. 275 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p. 933. 276 “From the Curb: Sex Workers’ Perspectives on Violence and Domestic Trafficking”, Application Record, Vol. 5, Tab 22(C), p. 1131. 277 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p. 933. 278 Ibid., p. 933. 279 Ibid., p. 933. 280 Cross-examination of Susan Davis, Application Record, Vol. 5, Tab 23, p. 1235 ll. 22-24. 281 Ibid., p. 1195, ll. 20-22.

44 of 243 terms with a client beforehand.282 Ms. Davis believes that the “communication provisions” of the Criminal Code have increased the danger that survival level sex workers face on the street and that in secure indoor locations, a customer will be less likely to commit violence because of the availability of safety provisions.283

(viii) Jody Patterson

100. Jody Paterson was born in 1956 in Saskatoon, Saskatchewan and raised in Courtenay, British Columbia.284 She studied journalism at Cariboo College in Kamloops, British Columbia and then moved to Victoria in 1989 where she has since resided.285 Working as a journalist until 2004, Ms. Paterson now operates as the Executive Director of the Prostitutes Empowerment Education and Resource Society (PEERS) in Victoria, British Columbia.286

101. PEERS is a non-profit organization started by former sex workers and community supporters that is dedicated to the “empowerment, education and support of prostitutes.”287 One of the main objectives of PEERS is to improve the safety and working conditions of sex workers.288 PEERS also assists sex workers who want to leave the sex trade and strives to increase public understanding.289 Since February 2005, PEERS has continuously assisted approximately 85-100 women monthly through outreach services in the main outdoor prostitution stroll of Victoria.290 Ms. Patterson explains that the women on the outdoor stroll are working in the sex trade because they are “extremely disadvantaged” with very high addiction rates and because they possess “personal challenges and barriers to the point that it is very difficult for them to find employment in a mainstream workplace.”291 The Late-Night Outreach program runs 7 nights a week and provides such services as needle exchange programs, distribution of condoms, referrals and taking sex workers for hospital/detox visits.292

282 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p. 935. 283 Ibid., p. 936. 284 Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p. 1833. 285 Ibid., p. 1833. 286 Ibid., p. 1833. 287 PEERS Website Promotional Materials, Application Record, Vol. 7, Tab 30(A), p. 1840. 288 Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p. 1834. 289 PEERS Website Promotional Materials, Application Record, Vol. 7, Tab 30(A), p. 1840. 290 Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p. 1834. 291 Ibid., p. 1834. 292 PEERS Website Promotional Materials, Application Record, Vol. 7, Tab 30(A), p. 1844.

45 of 243 102. Ms. Paterson identifies outdoor sex workers as an extremely vulnerable population, facing severe dangers in their occupation. These women are forced to make “quick decisions that directly affect their safety” because of the “pressures of the communication law.”293 Furthermore, a high drug addiction rate amongst outdoor sex workers leads to impaired judgment, and prostitutes working on the stroll consider financial need a priority over their safety when making decisions.294

103. Ms. Paterson addresses several issues that outdoor sex workers face due to the “neither fully legal nor illegal” nature of prostitution in Canada, making outdoor prostitution the “most dangerous work place in the country.”295 These include fear of prosecution, a lack of protection and assistance from police and a negative stigma from the public that prevents workers from seeking proper medical attention.296 She states that “[s]adly the prostitution laws and societal censure forces sex workers into dark industrial parks and outer ‘out of sight’ areas.”297 In particular, the lack of police protection has led PEERS and other organizations to work together and create a “Bad Date”. The list is circulated among sex workers in Victoria and includes a description of clients who were violent towards street sex workers.298

104. Ms. Paterson recognizes that even though the indoor industry is “virtually unregulated in Canada,” indoor venues tend to be safer than outdoor venues because most owners of indoor sex venues take precautionary measures to ensure the safety of their employees.299 Furthermore, indoor sex workers have more control over their work environment than outdoor sex workers. Indoor sex workers do not have to travel to locations that the client chooses, are able to screen customers, and likely have coworkers who can be found nearby in case danger ensues.300

105. Ms. Paterson believes that “society should not tolerate anybody having to work in a workplace that is unregulated… and completely unsafe, particularly when the demand for the service that they sell comes from mainstream society.”301 She contends that no other working

293 Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p. 1834. 294 Ibid., p. 1834. 295 Ibid., p. 1835. 296 Ibid., pp. 1835-1836. 297 Ibid., p. 1836. 298 “Bad Trick Report”, Application Record, Vol. 7, Tab 30(C), pp. 1849-1855. 299 Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p. 1836. 300 Ibid., p. 1837. 301 Ibid., p. 1838.

46 of 243 group in Canadian society would tolerate the working conditions of sex workers and that sex workers diserve a safe place to work.

(ix) Lauren Casey

106. Lauren Casey is a former sex worker who worked exclusively indoors for fifteen years.302 In her final years working in the sex trade, Ms. Casey suffered from cocaine addiction, and as a result she entered five different rehabilitation programs.303 She has a B.A. Honours in sociology and criminology from the University of Winnipeg, a Master’s degree in sociology from the University of Manitoba and has been accepted into the PhD program at Fielding Graduate University in Santa Barbara, California .304 She works as an independent consultant, specializing in women’s issues, sex work and illicit substance use.305 Ms. Casey previously worked as the Executive Director of the Prostitutes Empowerment Education and Resource Society (PEERS) in Victoria, British Columbia and as the Executive Officer of the Canadian National Coalition of Experiential Women.306

107. As reply evidence Ms. Casey tendered an affidavit in which she asserted that indoor prostitution is far safer than outdoor prostitution. She bases her conclusion on her past experiences as a sex worker. During this time, Ms. Casey “had no issues working as an indoor sex industry worker” and never experienced an incidence of violence involving a client.307

108. Ms. Casey also bases her opinion that indoor prostitution is safer than street prostitution from the results of a study on indoor prostitution in Victoria entitled Behind Closed Doors.308 As one of the lead researchers, Ms. Casey conducted this study for PEERS in 2005.309 Funded by the British Columbia government, the purpose of this study was to identify the current working conditions and experiences of indoor sex workers and also to understand the involvement of law

302 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7423; In cross-examination, Ms. Casey conceded that the statement, “I never worked on the streets” in her affidavit is incorrect because she had in fact worked two calls on the street as an adult during her fifteen years of sex work experience. Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7535, l.2-9. 303 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7457, l.5-18. 304 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7446, l.9-19; Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7419; Cross-examination of Lauren Casey, Application Record, Vol.26, Tab 59, p. 7447, l.4-9. 305 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7419. 306 Ibid., p. 7419. 307 Ibid., p. 7423. 308 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7420; “Behind Closed Doors: Summary of Findings”, Application Record, Vol. 26, Tab 59(A), p. 7565. 309 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, pp. 7473-7474, l.17-25, 1-2.

47 of 243 enforcement in escort agency venues.310 The primary data compiled for the study was comprised of the semi-structured interviews of 47 current indoor sex workers and additional feedback was collected during three focus groups, for a total sample size of 88.311 All of the participants worked in escort agencies or independently out of their homes.312 Some of the questions participants were asked were related to their demographics, their personal experiences working in the indoor sex industry, why they chose to work in the sex trade, what their customers were like and whether they were happy in their work.313 Additionally, police in the capital region of Victoria were also interviewed.314

109. Preliminary results revealed that 57% of the participants were happy in their occupation and viewed the majority of clients in a positive light.315 Furthermore, 98% stated that they had not experienced any violence at all in the workplace.316 In cross-examination, Ms. Casey conceded that looking at violence was not the express purpose of the study and that her 98% statistic was a loose estimate based on the interviews, her experience, and her work with thousands of sex workers over many years.317 The study concluded that, “indoor work is regarded as safer than outdoor work.”318 Ms. Casey states that “the word ‘safety’ came up frequently during the interviews with participants saying things like, ‘It’s safe, clean,’ ‘I have support from my peers,’ ‘I feel safe,’ and ‘I have a driver to take me on calls.’”319 Police interviews revealed that law enforcement “generally ignored indoor prostitution so long as it was

310 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7420. 311 In Lauren Casey’s cross-examination, it was discovered that the number of individuals interviewed in the PEERS study was 88 and not 111 as stated in her affidavit. “Behind Closed Doors: Summary of Findings”, Application Record, Vol. 26, Tab 59(A), p. 7567; Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p.7445, l.15-18. 312 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7420. 313 Interview Questions used for Indoor Escort Participants, Application Record, Vol. 26, Tab 58(C), pp. 7435-7436. 314 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7420. 315 “Behind Closed Doors: Summary of Findings”, Application Record, Vol. 26, Tab 59(A), p. 7567; In her affidavit, Ms. Casey states that 69% of the study’s participants reported that they were happy in their work, but Ms. Casey conceded the more accurate number is 57% because only 45 workers were asked the question out of the 88 and because the study’s report of findings cites 57%. It was also conceded that only 40 participants clearly indicated their level of happiness. Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7518 l. 8 – p. 7519 l. 16. 316 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7420. In cross-examination, Ms. Casey acknowledged that the study’s questionnaire did not contain a specific question that asked the indoor sex workers whether they had “experienced violence”. The 98% figure represented a rough estimate based on answers to other questions posed during the interview. Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7444, ll. 5-12. 317 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7530, ll. 5-25. 318 “Behind Closed Doors: Summary of Findings”, Application Record, Vol. 26, Tab 59(A), p. 7567. 319 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7422.

48 of 243 not a nuisance.”320 Some officers admitted that indoor prostitution was better because it was not a nuisance to the community and police do not have to deal with the issues that arise from outdoor sex work, such as visible drug use and abuse of prostitutes by clients.321

110. Ms. Casey contends that majority of the study’s participants believed the stigma surrounding prostitution constitutes a larger problem than violence in the workplace.322 As a former indoor sex worker, Ms. Casey has experienced firsthand the stigma surrounding indoor prostitution. She acknowledged in cross-examination that there is a stigma that she has suffered as a result of being a sex worker and that her history as a sex worker “might follow her.”323 She states that, “it is important to address the stigma surrounding sex work because the presence of the stigma can serve to increase the risk of violence.”324 She reveals that participants in the study felt stigma “causes the most damage to their self-esteem, integrity and overall sense of well- being. This in turn causes isolation, fear of disclosure, and/or being identified in their community as a sex worker.”325 In cross-examination, Ms. Casey stated that she went to New Zealand with Jody Paterson to visit brothels in an effort to set one up in Victoria.326 She acknowledged that she believes stigmatization in prostitution still exists in New Zealand despite legalization.327

C. Observations and Opinion from a Journalist and a Member of Parliament

(i) Dan Gardiner

111. Mr. Gardner has been a columnist, editorial and feature writer for the Ottawa Citizen newspaper since 1997. He has a Masters degree in history from York University and an LL.B. from Osgoode Hall Law School.328 In his capacity as a writer, Mr. Gardner produced a series of articles examining the danger of sex work in Canada329, and comparing the sex industries in

320 Ibid., p. 7422. 321 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7422. 322 Ibid., p. 7422. 323 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7462, ll. 11-19. 324 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p. 7422. 325 Ibid., p. 7422. 326 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7469, ll. 16-20. 327 Ibid., p. 7467, ll. 5-7. 328 Curriculum Vitae of Dan Gardner, Application Record, Vol. 10, Tab 38(A), p. 2534. 329 Dan Gardiner, “Courting Death” Ottawa Citizen, 15 June 2002, Application Record, Vol. 10, Tab 38(B); Dan Gardiner, “The Hidden World of Hookers” Ottawa Citizen, 8 June 2002, Application Record, Vol. 10, Tab 38(D).

49 of 243 Canada and the Netherlands.330 In writing these pieces, Mr. Gardiner has conducted extensive literature reviews, consulted empirical studies, and interviewed experts, police officers, and sex workers.331 These experiences have led him to the conclusion that Canada’s criminal laws on sex work are ineffective, and enable terrible violence against the individuals who work on the street.332 In cross-examination, Mr. Gardiner conceded that his interview samples were not necessarily representative and that his work was not intended to be formal scientific research.

112. Throughout Mr. Gardiner’s career, he has observed that there is an increasing resistance by police, prosecutors, and judges to impose moral codes on activities between consenting adults.333 The result is that the policing of prostitution is done primarily on a complaints-based approach that is directed almost exclusively against ‘outdoor’ sex workers. Notwithstanding that most sex work in Canada takes place indoors, criminal charges are laid almost entirely on outdoor workers,334 resulting in arbitrary enforcement within the industry as a whole.335 Even with a disproportionate focus on outdoor workers, Mr. Gardiner concludes that the Criminal Code provisions in question do not meet the concerns of members of the community. The laws do, however, make the circumstances of sex workers appreciably more dangerous.336

113. In Mr. Gardiner’s experience, sex workers who operate indoors are protected though various means, most notably, that clients are aware that they are visible and identifiable, and that other employees are in close proximity to assist a worker if circumstances require.337 Consequently, violence is a rarity in indoor settings.338 Sex workers who are forced to work on the street lack any of these protections. In order to avoid unwanted attention, outdoor sex workers commonly work in dark and isolated areas, where clients may remain anonymous, and help from other sex workers is unavailable.339 Mr. Gardiner’s experiences in the Netherlands

330 Dan Gardiner, “Coffee? Prayers? Sex?: Church and Brothel Make for Odd Bedmates in Amsterdam, but Tolerance is the Key in the Liberated Dutch Society that Threw out the Rule Books the Rest of us Follow” Ottawa Citizen, 23 February 2003, Application Record, Vol. 10, Tab 38(E). 331 Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, pp. 2527-2531, paras. 1-2, 6-7, Cross- Examination of Dan Gardiner, Application Record, Vol. 10, Tab 39, p. 2605 l. 21 – p. 2607 l. 4. 332 Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, p. 2531, para. 9. 333 Ibid., p. 2528, para. 4. 334 Dan Gardiner, “The Hidden World of Hookers” Ottawa Citizen, 8 June 2002, Application Record, Vol. 10, Tab 38(D), pp. 2559-2560. 335 Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, p. 2528, para. 4. 336 Ibid., p. 2528, paras. 3-4. 337 Dan Gardiner, “Courting Death” Ottawa Citizen, 15 June 2002, Application Record, Vol. 10, Tab 38(B), p. 2539. 338 Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, p. 2530, para. 6. 339 Ibid., pp. 2529-2530, para. 5.

50 of 243 confirms this dichotomy: while sex workers operating in legal indoor settings are reasonably safe in Amsterdam, those working in the illegal outdoor sector are major targets of violence.340 Mr. Gardiner reached these conclusions during a two-week period in The Netherlands during which he interviewed a number of individuals including sex workers, a police officer, a Christian evangelist and a brothel owner.341

114. Mr. Gardiner’s experiences also show the power of the stigma of criminalization on sex workers. By being labeled criminals, sex workers are denied access to employment in other industries, and are often forced to continue to work the streets in a fundamentally unsafe environment.342 Stigma also denies sex workers concern and compassion from the public notwithstanding the terrible conditions they are often forced to work in. Mr. Gardiner has been particularly struck by the lack of reaction from his readers to his pieces on prostitution, leading him to believe that members of the public simply do not believe that sex workers merit concern when they are murdered.343

(ii) Libby Davies

115. Libby Davies was born in England in 1953. She moved to Vancouver in 1969 where she currently resides. Ms. Davies served five consecutive terms on Vancouver City Council beginning in 1982. From 1994-1997, she worked with the Hospital Employees’ Union as Ombudsperson for Human Rights, Complaints Investigator, and Coordinator of Human Resources. Ms. Davies has served as a Member of Parliament for Vancouver East since 1997, and currently sits as the NDP House Leader and Labour Critic. From 2003-2006, Ms. Davies sat on the Subcommittee on Solicitation Laws, Subcommittee of the Justice, Human Rights, Public Safety and Emergency Preparedness Standing Committee.344

116. As a community activist, Ms. Davies works closely on various issues affecting her constituents; of central importance to her is the victimization of street sex workers.345 Her own constituency of Vancouver East has witnessed “two of the most horrific examples” of violence

340 Ibid., pp. 2530-2531, para. 7. 341 Cross-examination of Dan Gardiner, Application Record, Vol. 10, Tab 39, p. 2590 ll. 9-11, p. 2615 ll. 3-18. 342 Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, pp. 2529-2530, para. 5; Dan Gardiner, “Courting Death” Ottawa Citizen, 15 June 2002, Application Record, Vol. 10, Tab 38(B), p. 2541. 343 Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, p. 2531, para. 9. 344 Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p.2371 345 Ibid., p. 2372

51 of 243 against prostitutes: the sexual sadism case of Don Bakker and the serial killing case of Robert Pickton.346 Despite extensive media coverage of these particular cases, the affiant contends that the rape, abduction, and murder of sex trade workers are not sporadic or rare occurrences.347

117. From her experiences working with street workers in her constituency, Ms. Davies believes that “no other group in our society [is] as stigmatized, criminalized, and misrepresented as often as women involved in prostitution”.348 Based on her own observations, relationships with her constituents, and her involvement with the Subcommittee, Ms. Davies sees the laws surrounding prostitution as “failing dramatically for the women involved in street work, as well as for the communities which house the sex work”.349 In a 2004 article that she authored, Ms. Davies argues that the criminal code provisions regarding prostitution represent “a failure, both from the perspective of assisting and protecting women in the sex trade as well as in mitigating the impacts of street prostitution on local communities”.350

118. In 2003, Ms. Davies began working on an all-party committee to address the issues of violence against sex workers and the safety of local communities affected by the sex trade.351 The affiant believes “it is time to have an open, honest and rational discussion about society’s treatment of sex trade workers”.352 Since its inception, the Subcommittee has heard from hundreds of witnesses including police officers, academics, sex workers, and resident groups. There has been near unanimous agreement among the witnesses interviewed that the laws regulating prostitution are unworkable, contradictory, and unacceptable”353 and do little to protect sex workers or local communities.354 Ms. Davies notes that the views of these witnesses “support the 20-year-old Fraser committee report, which argued that it was ‘the contradictory and often self-defeating nature of the Criminal Code that was at the root of the high levels of

346 Affidavit of Libby Davies, Application Record, Vol.9 Tab 37, p. 2372. 347 Ibid., p. 2372. 348 Davies, Libby, “How to save a prostitute: decriminalization is needed to protect women”, Application Record, Vol. 9, Tab 37(A), pp. 2384-2385. 349 Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p. 2373. 350 Davies, Libby, “New laws needed to protect sex trade workers from violence”, Vancouver Sun, (12 March 2004) A15, Application Record, Vol. 9, Tab 37(D), pp. 2395-2396. 351 Affidavit of Libby Davies, Application Record, Vol.9, Tab 37, pp. 2375-2376. 352 Davies, Libby, “New laws needed to protect sex trade workers from violence”, Vancouver Sun, (12 March 2004) A15, Application Record, Vol. 9, Tab 37(D), pp. 2395-2396. 353 Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p. 2378. 354 Davies, Libby, “How to save a prostitute: decriminalization is needed to protect women” (26 March 2006), Application Record, Vol. 9, Tab 37(A), pp. 2384-2385.

52 of 243 street prostitution in Canada’”.355 There was also consensus within the 2006 Subcommittee that the current legal regime was not working.356

119. One common issue that surfaced during the hearings was the routine abuse and victimization of sex workers by law enforcement officials. Ms. Davies heard “horrendous testimony” by various witnesses who reported incidences of harassment and exploitation by police.357 She contends that “sex workers are fearful to report violence, assault and coercion, because of the illegal environment they operate in, and the retaliation and criminalization they face from law enforcement”.358

120. Though the problems regarding prostitution are clear, Ms. Davies fears that “inaction will condemn many more sex workers to violence and death”.359 In her 2006 article, entitled How to Save a Prostitute, Ms. Davies asserts “we need a comprehensive strategy that focuses law enforcement on eliminating the harms and violence in sex work, while providing real choices to women, based on human rights, dignity and opportunities for quality of life. This broad approach is not a simplistic ‘legalization’ regime; rather, it’s a realistic effort to repeal harmful laws in order to improve the health and safety of sex workers and reduce the violence they experience”.360

121. According to the witness, “the worst aspect [of the communication law] is that it is the threat of enforcement that creates a danger: on the street, feeling the threat of prosecution, women make 5 second decisions as to whether to get in a car or not. This decision is very fast and very high risk—there is not even enough time to do a full scan of the car and look for weapons that might be used to attack the street worker”.361 Moreover, “federal laws pertaining to prostitution force women on the street into dangerous and illegal activities”.362

355 Davies, Libby, “How to save a prostitute: decriminalization is needed to protect women” (26 March 2006), Application Record, Vol. 9, Tab 37(A), pp. 2384-2385. 356 Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p. 2378. 357 Ibid., p. 2379. 358 Davies, Libby, “How to save a prostitute: decriminalization is needed to protect women” (26 March 2006), Application Record, Vol. 9, Tab 37(A), pp. 2384-2385. 359 Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p. 2378. 360 Davies, Libby, “How to save a prostitute: decriminalization is needed to protect women” (26 March 2006), Application Record, Vol. 9, Tab 37(A), pp. 2384-2385. 361 Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, pp. 2380-2381. 362 Davies, Libby, “Time to debate the impact of Canada’s hypocritical laws relating to the sex trade” The Hill Times (14 October 2002), Application Record, Vol. 9, Tab 37(E), pp. 2398-2399.

53 of 243 122. In her opinion, “the law must acknowledge that the demand for paid sexual services between consenting adults is not going away. The aim of the law in this case—as it is with any other issue—should be to separate what is harmful and what is not between consenting adults. Any effort to deter or abolish the practice by employing the coercive power of the criminal law has proven futile, and worse, it is aiding and abetting in the demise of this country’s street workers”.363

D. Expert Opinion

(i) Gaps and Limitations in Current Sex Work Research

123. Ideally, empirical research in the area of sex work should be able to provide clear statistical data which can demonstrate whether or not the anecdotal information provided by the Applicants’ experiential witnesses is representative of the general population of sex workers. It is respectfully submitted that the body of empirical research tendered in the case at bar does support the claim that the law does contribute to the risk of harm by prohibiting save avenues of work; however, it is recognized that the empirical research conducted to date on sex work, while voluminous, is fraught with methodological limitations. In light of these limitations it must also be then recognized that the constitutional issues to be decided in this case cannot solely be resolved by asking this Honourable Court to make specific findings of facts on issues which have eluded researchers for decades. It is submitted that the empirical research data provided by both Applicant and Respondent should be seen as constituting one piece of the puzzle to be considered along with the anecdotal evidence, government reports and studies and common sense.

124. In assessing the probative value of the empirical research it is important to understand the unique problems which confront researchers in the area of sex work. A large proportion of the research presented in the case at bar was also presented to The Standing Committee on Justice and Human Rights in 2005 and they characterized the methodological problems as follows:

It is very difficult to draw a representative picture of the people who sell sexual services in Canada for the same reasons that it is difficult to gauge the scope of prostitution. Prostitution activities are usually carried out in secret, which makes most of the people involved invisible to conventional research. It is no surprise

363 Affidavit of Libby Davies, Application Record, Vol.9, Tab 37, p. 2381.

54 of 243 then, that research into prostitution centres on a specific group - those who sell sex on the street.

This situation is problematic because street prostitution makes up a very small part of prostitution in Canada. It thus undermines any attempt to generalize research results to the entire population. Claire Thiboutot outlined this difficulty in an article presented to the Subcommittee:

[translation] since the media and most of the studies conducted to date have focused primarily on the most visible aspects of sex work, it is difficult to make generalizations about all sex workers based on their results and their profiles. We have information about prisoners, people in detox programs, and so on. Some of the information is about sex work in the lives of these women. However, we have little information about women who have been in sex work for a good part of their lives but have never been jailed, treated in a detox program or assisted by resource centre[s] or shelters that serve prostitutes and sex workers directly.

In recent years, social science researchers have attempted to fill these knowledge gaps by conducting empirical research in conjunction with organizations defending prostitutes’ rights across the country. Their studies tend to show that most generalizations regarding prostitution apply specifically to the people who work on the street and not everyone who engages in prostitution.364

125. A number of witnesses who testified in this case made reference or relied upon the work of Dutch scholar, Ine Vanwesenbeeck, and in particular, the article entitled Another Decade of Social Scientific Work of Sex Work: A Review of Research 1990-2000. In that article she outlines the problem presented when research unduly focuses on an unrepresentative population:

…the literature about prostitution is still much more about sex, notably sexual victimization and risk, than it is about work. The groups most researched are the ones that are also the most vulnerable and to whom a victim status most applies (i.e., groups who do not only work sex but for whom additional problems, such as economic hardship, victimization, homelessness, and drug abuse shape their daily realities). Many researchers still study or feature only street workers. Negative findings among these groups, in terms of victimization, risk, and unwell-being are, nevertheless, often presented as a feature of sex work per se. Thus, the association between prostitution and misery prevails. Questions regarding differentiated working conditions and their association with victimization, risk, and unwell-being are investigated only to a very limited extent still. Thus, I feel that Bullough and Bullough were overly optimistic when they concluded in their

364 House of Commons, “Report of the Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws” 2006, Application Record, Vol. 82, Tab 164, pp. 24917- 24918.

55 of 243 review in this same journal in 1996, that studies in which prostitution is looked upon as any other occupation "have found favor." Although the image of the prostitute as pathological deviant seems to indeed gradually have vanished from the stage, the image of prostitute as victim is still highly prevalent. Respectful acknowledgement of the survivor skills of many sex workers is increasingly voiced. But an image of prostitutes as workers and entrepreneurs is surely still underrepresented.365

126. It is submitted that the problem of generalizing and extrapolating from one sector of the sex trade population (i.e. the street trade) casts a shadow on the bulk of the expert evidence tendered by the Crown. As Professor Weitzer deposed in his affidavit with specific reference to Crown witnesses Melissa Farley and Janice Raymond:

Studies of victimization in prostitution are often methodologically flawed. This conclusion was reached by Inez Vanwesenbeeck in an articled entitled “Another Decade of Social Scientific Work on Prostitution,” attached hereto and marked as Exhibit I. As Vanwesenbeeck and I have concluded, many studies do not include appropriate comparison groups: they do not include a comparison with non-prostitutes, which are needed to determine if the experiences of prostitutes (e.g., rates of assault, robbery, rape) differ significantly from experiences of the wider population. Similarly, sampling problems arise in many studies. Random sampling of sex workers is typically impossible because a full listing of workers (in any jurisdiction) is not available. At best, researchers must strive to create samples that draw from multiple locations and types of workers and that are not skewed toward any particular sub-group. This procedure is known as “purposive sampling.” Given the impossibility of random sampling, it is imperative that researchers qualify their conclusions properly and avoid drawing generalizations about “prostitutes” or “prostitution:” workers vary tremendously and prostitution takes several rather different forms. Conclusions should be limited to the discrete sample studied, which may or may not reflect the larger population from which the sample is drawn. Many scholars recognize these points, but some writers fail to abide by this fundamental canon of scientific research and offer far-reaching generalizations that ignore the sampling limitations in their specific studies or make generalizations that are based on anecdotes from a limited number of subjects. Scholars have faulted Raymond and Farley for drawing conclusions that go well beyond their data.366

127. It is clear that the witnesses for the Applicant understand the limitations of current empirical research on the sex trade and virtually all agreed that further research must be

365 Vanwesenbeeck, Ine, “Another Decade of Social Scientific Work on Sex Work: A Review of Research 1990- 2000”, Application Record, Vol. 30, Tab 64(I), p. 8730; Affidavit of Ronald Weitzer, Application Record, Vol. 30, Tab. 64, pp. 8530-8531, para. 10; Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, pp. 4170-4171, para. 46; Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14234-14235, 14238-14239, 14258, paras. 20, 35, 38, 105. 366 Affidavit of Ronald Weitzer, Application Record, Vol. 30, Tab. 64, pp. 8530-8531, para. 10.

56 of 243 conducted on most facets of the trade. In fact, Professor Fran Shaver and Professor Cecilia Benoit, witnesses for the Applicant, have both produced scholarship specifically on the issue of methodological limitations in this area. In Sex Work Research: Methodological and Ethical Challenges, Professor Shaver outlined the major difficulties in conducting research on sex work:

Three sets of challenges arise when conducting research on the sexual service industry. First, the size and boundaries of the population are unknown so it is extremely difficult to get a representative sample. the traditional methods of sampling such populations – snowball sampling, key information sampling, and targeted sampling – do not solve this problem. Snowballing samples, for example, tend to be biased toward the more cooperative participants. Data from key informants (social service agencies, health care workers, and police) generally reflect their interactions with clients who are in crisis. Consequently, the stories of those less interested in participating and those not in crisis are rarely reported. Targeted sampling, although widely used, is only as good as one’s ability to penetrate the local networks of the stigmatized population. In addition, bias can be introduced during targeted sampling when the most visible participants (such as street workers) are oversampled and the least visible (those who work inside) undersampled.

Second, because membership in hidden populations often involves stigmatized or illegal behaviour, concerns regarding privacy and confidentiality are paramount. This, it is often argued, may lead individuals to refuse to cooperate or to give unreliable answers to protect their privacy. Alternatively, participants may say what they think you want to hear. In either event, the researcher is getting reporting differences rather than true differences. As a consequence, the data, regardless of how rigorously collected, are often the first aspect of the study to be challenged, especially when not in line with the commonly held stereotypes of the prostitute or prostitution. When conducting research with hidden populations – in this case, sex workers – additional strategies are required to reduce challenges to the validity of the data.

This brings us to the third set of challenges to be overcome: the enduring associations between sex work and victimization, the prevalence of dichotomies, and the notion that sex workers represent a homogeneous population. Despite growing evidence to the contrary from both researchers (Benoit & Millar, 2001; Ford, 1998a; Jennes, 1990; McLeod, 1982; Pons & Serra, 1998; Shaver, 1988, 1994, 1996) and sex workers (Almodovar, 1993; Bruckert, 2002; Chapkis, 1997; Delacoste & Alexander, 1987; Doezema, 1998; French, 1988), a recent review of a decade of social science literature revealed that association between sex work and victimization are still strong and that dichotomies remain prevalent (Vanwesenbeeck, 2001, p. 242). The activity is still characterized as work or exploitation (Conseil du statut de la femme, 2002) or as good girls versus bad girls (Bell, 1987) when in fact, as is the case with all work and all workers, it is a combination of the two. Finally, as articulated by Pheterson (1990) and heralded

57 of 243 by others (Colpron, 2001, p. 12), prostitution is commonly treated as an identity category rather than a revenue-generating activity. To counteract this tendency, it is essential to develop strategies that increase the potential for revealing diversity within each sector of the industry as well as between sectors. In addition, we need to develop tools and theoretical approaches for comparing sexual service work with other forms of personal service work.367

In a similar vein, Professor Benoit noted the following in Community-Academic Research on Hard-to-Reach Populations: Benefits and Challenges: As difficult as it might be to conduct research on sexual practices of an average person, studying the working conditions and health-related issues of individuals who sell sex services poses an additional set of challenges to the researcher. A central reason for this has to do with how sex work is conceptualized and viewed by the public at large. In Canada, for example, sex work takes place amid a myriad of activities and venues ranging from visible street work, escort agencies and massage parlors, strip bars, and individuals’ homes, as well as via pornographic video, phone, and Internet. Regardless of occupational location, mode of technology and activity performed, however, sex work is typically depicted in a negative light by most Canadians and is stigmatizing to those who are involved in the activity (Brock, 1998; Davis & Shaffer, 1994; Lowman, 1995; Shaver, 1993).

...individuals involved in selling sex services belong to what academics variously call sensitive (Lee, 1993), underresearched (Berg, 1999; Standing, 1998), and hard-to-reach or hidden populations (Spreen & Zwaagstra, 1994; Sudman & Kalton, 1986; Watters & Biernacki, 1989). Such populations share three main characteristics: (a) no sampling frames exist, and thus the sex of the membership and group boundary is unknown; (b) acknowledgment of belonging to the group is threatening, because membership involves being the object of hate of scorn and sometimes fear of prosecution; and (c) members are distrustful of non-members, do whatever they can to avoid revealing their identities, and are likely to refuse to cooperate with outsiders or to give unreliable answers to questions about themselves and their networks (Heckathorn, 1997). 368

128. Another witness for the Applicant, Professor John Lowman, prepared a report in 2001 for the Department of Justice entitled Identifying Research Gaps in the Prostitution Literature. He identified 9 topics which have not yet received adequate attention by researchers in the field:

1) Information about off-street prostitution.

367 Shaver, Frances M., “Sex Work Research: Methodological and Ethical Challenges”, Application Record, Vol. 25, Tab 56(I), p. 7383. 368 Benoit, Cecilia et. al., “Community-Academic Research on Hard-to-Reach Populations: Benefits and Challenges”, Application Record, Vol. 14, Tab 49(C), pp. 4119-4120.

58 of 243 2) Paucity of Research on Managers, Recruiters and Owners of Prostitution Businesses 3) Research on the Interface of Criminal and Municipal Law 4) Research on the Clients of Prostitutes 5) Program Evaluation Research 6) Research on Criminal Code s.212(4): offering to purchase or purchasing sexual services from a person aged under 18 years. 7) Longitudinal Studies 8) Studies of Exit from Prostitution 9) Transgender and transvestite prostitution369

In cross-examination, Professor Ron Weitzer agreed that many of these areas, especially those related to indoor sex work, remain under-researched.370

129. In conclusion, the methodological limitations outlined above were set out in great detail because it is submitted that a proper understanding of these limitations can shed a great deal of light on the shortcomings of the research presented by Crown expert witnesses. Of course, the research presented by expert witnesses for the Applicant is subject to the same limitations and constraints; however, it is submitted that virtually all of the research presented by Crown witnesses is tainted by the fundamental mistake of generalizing about the nature and risks of ALL sex work from studies conducted with street prostitutes, children and trafficked women.

(ii) Gayle MacDonald

130. Gayle MacDonald is a Professor of sociology at St. Thomas University in Fredericton, New Brunswick. She holds degrees in psychology, criminology and sociology from Dalhousie University, the University of Ottawa, and the University of New Brunswick. Dr. MacDonald has received Social Sciences and Humanities Research Council (SSHRC) funding to study the sex trade in the Maritimes, and has various publications on sex workers.371

131. In 2006, Dr. MacDonald and Dr. Leslie Ann Jeffrey conducted a three-year study of sex workers in Halifax, Moncton and Saint John.372 During the study, 66 female, male and transgendered sex workers were interviewed, of which 90% worked on the street. Dr. MacDonald identifies two interconnected factors that lead to a high risk of violence against sex

369 Lowman, John, “Identifying Research Gaps in the Prostitution Literature,” Research and Statistics Division, Department of Justice, Application Record, Vol. 23, Tab 53(H), p. 6643. 370 Cross-examination of Ronald Weitzer, Application Record, Vol. 31, Tab 65, p. 8988 l. 17 – p. 8989 l. 22. 371 Curriculum Vitae of Gayle MacDonald, Application Record, Vol. 11, Tab 42(A). 372 Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, p. 2768, para. 2; Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B).

59 of 243 workers: an unsafe work environment, and a high degree of stigma.373 She believes that the current Criminal Code provisions fuel both of these problems.

132. In Professor MacDonald’s opinion, the current criminal provisions make the work environment for sex workers inherently more dangerous.374 Many of the participants in the East Coast study considered indoor work to be “much safer” than outdoor work due to the variety of safety measures available.375 Some of those interviewed by Professor MacDonald who did work indoors “distinguished themselves from street-based workers because they [were] more in control of their working conditions and [did] not necessarily view violence as ‘their issue.’”376

133. For outdoor workers, the communication offence prevents them from using effective protective measures, such as “sizing up” potential clients and gauging their risk.377 The fear of violence on the street led several workers to report carrying small weapons while at work.378 The living on the avails provision prevents sex workers from hiring security personnel. In Professor MacDonald’s view, this provision is based on racist stereotypes that date back to the slave trade and the “white slave panic of the 1800’s.”379 The provision criminalizes a wide range of relationships, many of which may be supportive and protective for sex workers.380

134. Criminalization of sex work also leads to a high degree of stigma, dehumanizing sex workers in the eyes of johns, police and the wider public – turning them from women into “disposable people.”381 This dehumanization enables violence and predation, while simultaneously reducing public concern and empathy.382 Professor MacDonald believes that the problem of stigma is especially acute for outdoor workers. She notes that “street-based sex

373 Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, pp. 2769-2770, para. 6. 374 Ibid., p. 2772, para. 14. 375 Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), p. 2794. 376 Ibid., p. 2790. 377 Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, p. 2772, para. 13. 378 Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), p. 2796. 379 Ibid., p. 2797. 380 Ibid., pp. 2797-2728. 381 Ibid., p. 2798. 382 Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, pp. 2770-2771, paras. 7-9.

60 of 243 workers face a climate of harassment that indicates that they are held in low regard and are, therefore, considered fair game for both situation and predatory violence.”383

135. Dr. MacDonald recognizes that the current criminal law places police in a difficult position. While prostitution itself is legal, many activities that surround it are not. This results in different approaches to policing the sex industry even within the same police force, and “uneven and contradictory application of law against sex workers.”384 Many East Coast study participants expressed having dysfunctional relationships with police, ranging from police apathy and distain to, in rare circumstances, outright violence and extortion. The result is that victimized sex workers are often hesitant to seek police assistance.385 Similarly, the dubious legal status that many indoor venues operate under inhibit owners from contacting police.386 Professor MacDonald found that “Violence and the fear of violence, along with the fear many of them harbour that the police are not willing to protect them, are overwhelming factors in [sex] workers’ lives.”387 However, police have been aware of violence in the street sex trade. Starting in 2002, Halifax police began a program of collecting biographical and DNA samples from street workers in the event that they went missing.388

(iii) Frances M. Shaver

136. Dr. Shaver is Professor of sociology, and Chair of the department of Sociology and Anthropology at Concordia University. Previously, Dr. Shaver has worked as a research officer for the Canadian Advisory Council on the Status of Women, and has conducted research for the Department of Justice. Dr. Shaver has been funded by SSHRC, CIHR and the National Network on Environments and Women’s Health, and has extensive experience working with community- based organizations.389 This includes work with the Regional Municipality of Peel Health Department, the Exotic Dancer’s Alliance of Ontario, the Exotic Dancer’s Association of

383 Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), p. 2792. 384 Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, p. 2771, paras. 11-12; Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), p. 2811. 385 Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, p. 2771, para. 10. 386 Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), pp. 2794-2795. 387 Ibid., p. 2790. 388 Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, p. 2769, para. 3; Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), p. 2791. 389 Curriculum Vitae of Frances Shaver, Application Record, Vol. 24, Tab 55(A).

61 of 243 Canada, Stella Montreal, and Maggie’s Toronto, through the Sex Trade Advocacy Research (STAR) project.390 During her career, Dr. Shaver has conducted or supervised the interviews of some 500 male, female and transgendered sex workers in San Francisco, Montreal and Toronto.391 Professor Shaver’s research has been disseminated in various publications, and has been presented to the Subcommittee on Solicitation Laws.392

137. Dr. Shaver’s research reveals that threats to sex workers arise from their working conditions, clients, the public and police. However, such threats do not affect all sex workers equally.393 Indoor sex workers are less visible to police and the public, and they experience correspondingly less violence and harassment from these sources.394 Indoor work locations are also of critical importance from a health perspective, providing places of rest, recovery, and communication for sex workers. Even when working in outdoor locations, sex workers interviewed by Dr. Shaver identified the importance of locating temporary indoor locations, such as bars and restaurants that can be relied upon while engaging in outdoor work.395

138. Dr. Shaver views the criminal law as having a counter-productive effect on the health and safety of sex workers.396 Bawdy house laws force sex workers out of secure indoor working environments onto the streets, where they loose the physical security that an indoor location provides.397 Outdoor sex workers move to more isolated locations in order to avoid harassment from the public or police, or are displaced there by restrictive bail conditions, or pressure from police though the creation of “zones of tolerance.” When working in such areas, sex workers become more vulnerable to violence from aggressive clients.398 While sex workers commonly

390 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, p. 6807, para. 2; Sex Trade Advocay and Research (STAR) Website, Application Record, Vol. 24, Tab 55(B). Additional information on STAR research may be found in the summary of Eleanor Maticka-Tyndale, infra. 391 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp. 6806-6807, para. 1; Cross-Examination of Frances Shaver, Application Record, Vol. 25, Tab 56, p. 7234 l. 21 – p. 7235 l. 4. 392 Curriculum Vitae of Frances Shaver, Application Record, Vol. 24, Tab 55(A). 393 Frances Shaver, Sex Work Policy: An Integrated Approach, Application Record, Vol. 24, Tab 55(E), p. 6941. 394 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp. 6810-6811, 6814, paras. 10-12, 23. 395 Ibid., p. 6813, para. 20; Sex Trade Advocacy and Research (STAR), Safety, Security, and the Well-Being of Sex Workers: A Report Submitted to the House of Commons Subcommittee on Solicitation Laws, Application Record, Vol. 24, Tab 55(D), p. 6906. 396 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, p. 6817, para. 32. 397 Jacqueline Lewis, Frances Shaver and Kara Gillies, Health, Security & Sex Work, Application Record, Vol. 24, Tab 55(F), p. 6956. 398 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, p. 6813, para. 21; Sex Trade Advocacy and Research (STAR), Safety, Security, and the Well-Being of Sex Workers: A Report Submitted to the House of Commons Subcommittee on Solicitation Laws, Application Record, Vol. 24, Tab 55(D), pp. 6906-6907.

62 of 243 identify taking time to screen clients by talking with them as an effective tool for avoiding violence, the communication provisions of the Criminal Code render this a risky activity. To avoid the risk of arrest, sex workers are often forced to forego screening, increasing the risk of violence.399 The living on the avails provision of the Code criminalize another commonly identified tool for avoiding violence: the hiring of security personnel.400

139. Dr. Shaver’s research also stresses the inability for outdoor and other self-employed sex workers to access social supports available to other workers, such as employment standards, occupational health and safety, and worker’s compensation schemes.401 Sex workers also face difficulties in accessing victim of crime compensation.402 Her expert opinion is that improving the conditions of sex workers requires an approach that decriminalizes the incidents of sex work, while stressing occupational health, safety and human rights.403

(iv) Cecilia Benoit

140. Dr. Benoit is Professor of Sociology at the University of Victoria, and a research associate at the Population Research Group at The University of Washington. She has previously been a professor at Memorial University, Newfoundland, and visiting professor at universities in Finland, Japan and Sweeden. Dr. Benoit has received over four hundred thousand dollars in research grants for studies focusing on sex workers from CIHR, Health Canada, the B.C. Center for Excellence in Women’s Health, and the B.C. Health Research Foundation. She has published several books, monographs, government reports, and peer reviewed articles on the health and safety of sex workers.404 Over her career, Dr. Benoit has interviewed over 300 sex workers.405

141. In 2001, along with Alison Millar, Dr. Benoit undertook a study entitled “Dispelling Myths and Understanding Realities: Working Conditions, health Status, and Exiting Experiences

399 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, p. 6812, para. 17; Jacqueline Lewis, Frances Shaver and Kara Gillies, Health, Security & Sex Work, Application Record, Vol. 24, Tab 55(F), p. 6959. 400 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp. 6812-6813, para. 19; Jacqueline Lewis, Frances Shaver and Kara Gillies, Health, Security & Sex Work, Application Record, Vol. 24, Tab 55(F), p. 6958. 401 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp. 6814-6815, para. 25. 402 Ibid., pp. 6814-6815, paras. 24, 26; Katherine Lippel and Frances Shaver, The Sex Trade Environment Part II: Access to Compensation for Workers in the Sex Industry who are Victims of Crime, Application Record, Vol. 24, Tab 55(H). 403 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp. 6818-6819, paras. 36-38. 404 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, pp. 3417-3418, paras. 1-2; Curriculum Vitae of Cecilia Benoit, Application Record, Vol. 13, Tab 48(A). 405 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, p. 3418, para. 3.

63 of 243 of Sex Workers.”406 The study involved a sample of 201 current and former sex workers, including both indoor and outdoor workers. In order to help draw distinctions between sex workers operating in different venues, Professor Benoit asked participants questions relating to their overall control over various aspects of their work-life including earnings, pace of work, clientele selection, and physical safety.407 With respect to earnings, respondents working in indoor locations other than escort agencies earned more annually than street workers. While street workers generally retained a greater percentage of charged fees than out-call workers, independent in-call professionals working out of their own homes retained virtually all of their fees. Escorts working in “co-op” agencies also reported a higher rate of fee retention than in traditional escort businesses.408

142. When asked about their ability to control the volume of customers seen during working hours, most indoor workers reported a relatively low level of control compared to street workers, reflecting the relative independence of the latter group. However, independent home-based indoor workers reported the highest level of control. 81.9% of home-based in-call workers reported having “Full/A lot of Control” compared to 78.5% of street workers.409 A similar pattern emerged when participants were asked about the ability to choose whether to have sex with individual clients. While a greater percentage of street-based sex workers reported having a high level of control with respect to choosing clients than agency-based workers, home-based workers reported the greatest level of control, at 74.2%. With respect to workers who reported having “very little/no control” both home-based and “other indoor” fared better than street workers, reporting at 6.4%, 13.7% and 14.1% respectively. Agency workers had the highest rate at 24.6%.410

143. When discussing safety and security, Professor Benoit noted a strong distinction between indoor and outdoor workers. The general perception of sex workers was that outdoor work was significantly more dangerous than indoor work. Participants commented that “It would be a lot

406 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, p. 3420, paras. 9-10; Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B). 407 Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), p. 3526. 408 Ibid., pp. 3527-3528. 409 Ibid., pp. 3529-3532. 410 Ibid., p. 3533.

64 of 243 safer if you didn’t have to stand outside and be on the street” and “working on the streets is not really a good environment because there are girls that get burned [robbed], they murder them and they rape them. My best friend died from that.”411 Many participants reported greater feelings of security in indoor locations. One participant stated that “On the street I had like three bad dates in one week one time. I worked escort for three years and I haven’t had one bad date.”412

144. In her research, Dr. Benoit has encountered several common themes, which have informed her opinion about the health and safety issues facing sex workers. Dr. Benoit concludes that sex workers are a fundamentally vulnerable segment of the population, who face victimization from several sources. However, in Professor Benoit’s opinion “sex workers on the street [experience] substantially more violence than in any other venue.”413 Dr. Benoit’s research indicates that indoor workers have a superior ability to avoid violence though client screening and control of their environment.414 The close presence of support persons that is typical of indoor sex work environments also allow indoor workers to better respond to unsafe situations when they do arise.415 One participant in the Dispelling Myths study felt that “Escorts [were] a lot safer. I didn’t worry. There was always somebody near by. It was worth the safety. [Clients were] usually screened [and] there were a lot of regulars and I felt a lot safer.”416

145. Dr. Benoit contrasts this situation with that facing outdoor sex workers. Unlike indoor workers, outdoor workers have little control over their working environment or personal safety.417 This is especially true for violence from third parties.418 The dangers faced by outdoor workers is exacerbated by the communication provisions of the Criminal Code.419 Dr. Benoit’s opinion is that fear of police leads many outdoor sex workers to hastily agree to transactions without the ability to effectively screen clients, with further negotiations done in isolation, where

411 Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), p. 3535. 412 Ibid., p. 3536. 413 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, p. 3421, para. 14. 414 Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), p. 3536. 415 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, p. 3423, para. 21. 416 Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), p. 3536. 417 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, p. 3422, para. 17; Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), p. 3535. 418 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, pp. 3420-3421, para. 11. 419 Ibid., p. 3422, para. 18.

65 of 243 assistance is not readily available if violence arises; however, in cross-examination she conceded that her reports did not contain empirical evidence to support this opinion.

146. Police are not viewed as a source of protection.420 Rather, sex workers reported that they feel that they are not taken seriously or treated fairly. In the Dispelling Myths study 39.4% of participants reported “being belittled by the police sometimes or frequently” while 23.4% reported that “police sometimes or frequently caused them to be emotionally distressed”.421 When asked who they would turn to in a crisis situation, no participant identified police as their primary resource, and only 1.1% identified them as a second place to turn. Participants were as likely to turn to a pimp as a police officer.422

(v) Deborah Brock

147. Deborah Brock is Associate Professor in the Department of Sociology at York University. She holds a Ph.D. in Sociology from the Ontario Institute for Studies in Education, where her thesis was on the regulation and policing of prostitution in Canada.423 Professor Brock also wrote a book on prostitution in 1998, “Making Work, Making Trouble: Prostitution as a Social Problem” as well as book chapters and refereed articles on sex workers.424 Professor Brock has also been active in advocacy work related to the sex industry through the National Action Committee on the Status of Women. In this capacity, Professor Brock prepared a report for the House of Commons Standing Committee on Justice and the Solicitor General in 1989 on the impact of Bill C-49 (i.e. the communication provision).425 Professor Brock’s work in this area is more in the nature of sociological theory than empirical research, however, she did interview a couple of sex workers for her book.

148. Professor Brock stresses that the all-encompassing view of the ‘prostitute-as-victim’ is wrong; her research shows that women often enter the sex trade after determining that it is a

420 Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), pp. 3538-3541. 421 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, pp. 3424-3425, paras. 24-26; Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), p. 3539. 422 Cecilia Benoit and Alison Millar, “Dispelling Myths and Understanding Realities” Working Conditions, Health Status, and Exiting Experiences of Sex Workers,” Application Record, Vol. 13, Tab 48(B), pp. 3540-3541. 423 Curriculum Vitae of Deborah Brock, Application Record, Vol. 9, Tab 35(A), p. 2208. 424 Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, pp. 2202-2203, paras. 2-3. 425 Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary, Application Record, Vol. 9, Tab 25(C).

66 of 243 better option compared to other opportunities, such as unskilled labour.426 The process by which women get into sex work is “not so different a process from they way in which working-class women find working-class jobs, generally.”427 One of the subjects of Professor Brock’s book described entrance into the sex trade in these terms: “If I had other options, like, if I was a guy, an option would be to go work on an oil rig in Calgary and make good money. But seeing as the way I’m built, and where I live… I didn’t have options like that. This was the most obvious option. If massage parlours hadn’t worked out financially, I would have tried something else, and maybe I would have tried to start a business even then. Though it takes money to start a business.”428 According to Professor Brock, many sex workers experience their jobs as sources of empowerment, independence and financial stability. 429

149. Through the mainstream assumption that prostitution is immoral and harmful, Professor Brock believes that sex workers are silenced, marginalized, stigmatized, and disempowered.430 The social construction of prostitution accepts the dangers of working on the street “as risks of the job.” In this framework, violence does not deter involvement in the sex industry, but is abided by so long as sex work remains the most viable economic option available to workers.431 A more realistic view of the sex industry is not of a homogonous monolith, but as a complex sector where activities, work patterns, income, and risk vary widely.432

150. Professor Brock’s research has led her to the conclusion that the quasi-criminalization of the sex trade “only reinforces and exacerbates prostitutes’ vulnerability.”433 While safety in the sex trade cannot be ensured, the Criminal Code’s prostitution provisions force sex workers to engage in unsafe practices. The bawdy house provisions deny sex workers the ability to work in

426 Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, pp. 2204-2205, para. 6; Except from Deborah Brock, Making Work, Making Trouble: Prostitution As a Social Problem, Application Record, Vol. 9, Tab 35(D), pp. 2235-2236. 427 Except from Deborah Brock, Making Work, Making Trouble: Prostitution As a Social Problem, Application Record, Vol. 9, Tab 35(D), p. 2235. 428 Ibid., p. 2235. 429 Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, pp. 2203-2204, paras. 4-5; Except from Deborah Brock, Making Work, Making Trouble: Prostitution As a Social Problem, Application Record, Vol. 9, Tab 35(D), pp. 2238-2239. 430 Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, p. 2204, para. 5; Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary, Application Record, Vol. 9, Tab 25(C), p. 2226. 431 Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary, Application Record, Vol. 9, Tab 25(C), p. 2228. 432 Except from Deborah Brock, Making Work, Making Trouble: Prostitution As a Social Problem, Application Record, Vol. 9, Tab 35(D), p. 2237. 433 Ibid., p. 2236.

67 of 243 secure locations with supporting colleagues.434 This restriction combines with the communication prohibition, which “has made working conditions far more difficult and dangerous for prostitutes, while nothing has been done to make indoor options available to them”.435

151. These laws, and their enforcement by the police, feed into the social marginalization of sex workers. Professor Brock observes that the effect of the prostitution provisions is to burden otherwise law-abiding workers with criminal records, making it more difficult for them to leave the sex trade if they so desired.436 Aside from economic and employment effects, the Criminal Code contributes to the social marginalization of sex workers, which in turn acts to enable violence and abuse against them.437

(vi) Eleanor Maticka-Tyndale

152. Dr. Maticka-Tyndale is University Professor in the Department of Sociology & Anthropology at the University of Windsor, and is the Canada Research Chair in Social Justice & Sexual Health.438 She has published articles and government reports on, amongst other topics, escort workers, erotic dancers, methodology in sex work research, sex worker safety, licensing sex work and public health issues affecting sex workers.439 Professor Maticka-Tyndale has served as an advisor to institutions including Health Canada, the Pan American Health Organization, and the World Health Organization.440

153. Dr. Maticka-Tyndale is involved in the community-based research partnership “Sex Trade Advocacy and Research” (STAR), which is a partnership between academic researchers, sex worker organizations, and the Peel Health Unit.441 Though STAR Dr. Maticka-Tyndale interviewed 120 sex workers between 2001 and 2004 for a study on how public policies

434 Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, p. 2205, para. 8. 435 Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary, Application Record, Vol. 9, Tab 25(C), pp. 2227-2228. 436 Ibid., p. 2228. 437 Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, pp. 2205-2206, paras. 9, 13. 438 Curriculum Vitae of Eleanor Maticka-Tyndale, Application Record Vol. 12, Tab 45(A), p. 3102. 439 Ibid., pp. 3105-3108. 440 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, p. 3091, para. 1; Sex Trade Advocacy and Research (STAR), Safety, Security and the Well-Being of Sex Workers, Application Record, Vol. 12, Tab 45(B), p. 3134. 441 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, p. 3092, para. 3.

68 of 243 influence the health and safety of sex workers operating in differing venues.442 Dr. Maticka- Tyndale’s research illustrates two main points: first, while violence affectes sex workers generally, the location of work is intimately tied to worker safety;443 secondly, while many sex workers adopt tactics to reduce the risks that they face, the current Criminal Code prostitution provisions criminalize many of these strategies.444

154. In Dr. Maticka-Tyndale’s opinion, the locations where sex workers operate seriously affects thier safety. On one end of the spectrum, in-call workers reported feelings of control and empowerment and better behaved clients compared to working in other settings. In-call workers further increase their safety by sharing space with other professionals. While these venues are relatively safe, s.210 of the Criminal Code renders such arrangements illegal.445 Out-call workers attempt to use substitute strategies such as screening clients in public areas or, when working for an agency, having a driver/bodyguard close by. These common attempts by workers to enhance their safety violate the Code’s communication and living on the avails provisions.446

155. Street workers, who are most vulnerable in Dr. Maticka-Tyndale’s experience, attempt to protect themselves though screening clients in public, and collaborating with other street workers. Workers reported, however, that the more time spent undergoing these safety protocols, the greater the risk of arrest by police. This fear places pressure on both clients and sex workers to go to a private place as quickly as possible, negating the protective effects of thorough client screening.447 As an alternative, street workers reported moving to more isolated areas that were less likely to attract a police presence; this has the added effect of isolating sex workers, removing the protection provided by peers, and rendering them more vulnerable to clients.448

156. Dr. Maticka-Tyndale’s research also illustrates significant problems with police attitudes and actions towards sex workers due to the quasi-criminalization of the industry449. Participants reported to Dr. Maticka-Tyndale a general reluctance to seek protection from the police due to

442 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, p. 3092, para. 3. 443 Ibid., pp. 3092-3094, paras. 4-9; Sex Trade Advocacy and Research (STAR), Safety, Security and the Well-Being of Sex Workers, Application Record, Vol. 24, Tab 55(D), pp. 6904-6908. 444 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, pp. 3092-3093, para. 4. 445 Ibid., p. 3095, paras. 14-15. 446 Ibid., pp. 3095-3096, paras. 16-20. 447 Ibid., p. 3094, paras. 10-12. 448 Ibid., p. 3095, para. 13; Sex Trade Advocacy and Research (STAR), Safety, Security and the Well-Being of Sex Workers, Application Record, Vol. 12, Tab 45(B), pp. 3147-3148. 449 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, p. 3097, para. 24.

69 of 243 traditionally ineffective, unresponsive or condescending responses, including outright harassment and perceived entrapment.450

157. Other research by Dr. Maticka-Tyndale shows that these strained relations negatively impacts attempts to regulate the sex industry. Between 1997 and 1999 Dr. Maticka-Tyndale and Jacqueline Lewis conducted a study of the licensing regime in Windsor, where escort services, exotic dancers and massage parlours are required to obtain municipal business licenses in order to operate.451 Escorts, agency personnel, community workers and city officials were interviewed as part of the study.452 Such programs were found to fail in reducing the stigma of sex work and improving the effectiveness of police responses to violence against sex workers. Rather, police by-law enforcement was experienced as a new form of harassment.453 The dual mandate of police to enforce both the licensing bylaws and the Criminal Code, which criminalize much of what the licensing regime actually governs, leads Professor Maticka-Tyndale to conclude that the municipal regime cannot be a “healthy public policy for escorts.”454 While the shift from enforcement by police to by-law officers has improved the situation, Dr. Maticka-Tyndale believes that only removal of the criminal prohibitions coupled with cooperation between levels of government will lead to a more satisfactory regime.455

(vii) Augustine Brannigan

158. Dr. Brannigan is professor of Sociology at the University of Calgary, and holds a Ph.D in sociology from the University of Toronto.456 He has written on aspects of the sex trade for 20 years, publishing more than nine works of empirical and secondary research on the topic.457

159. In 1987, the Federal Department of Justice commissioned a series of studies on the effectiveness of Bill C-49 (i.e. the communication provision) throughout Canada. Professor

450 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, p. 3097, paras. 21-23. 451 Ibid., p. 3098, para. 25; Jacqueline Lewis and Eleanor Maticka-Tyndale, “Licensing Sex Work: Public Policy and Women’s Lives” (2000) 26 Can. Pub. Policy 437, Application Record, Vol. 12, Tab 45(C) at p. 3174. 452 Jacqueline Lewis and Eleanor Maticka-Tyndale, “Licensing Sex Work: Public Policy and Women’s Lives” (2000) 26 Can. Pub. Policy 437, Application Record, Vol. 12, Tab 45(C), p. 3173. 453 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, pp. 3098-3099, paras. 26-28; Jacqueline Lewis and Eleanor Maticka-Tyndale, “Licensing Sex Work: Public Policy and Women’s Lives” (2000) 26 Can. Pub. Policy 437, Application Record, Vol. 12, Tab 45(C), pp. 3177-3178. 454 Jacqueline Lewis and Eleanor Maticka-Tyndale, “Licensing Sex Work: Public Policy and Women’s Lives” (2000) 26 Can. Pub. Policy 437, Application Record, Vol. 12, Tab 45(C), pp. 3178, 3182. 455 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, pp. 3099-3100, paras. 31-32. 456 Curriculum Vitae of Augustine Brannigan, Application Record, Vol. 8, Tab34(A). 457 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, p. 1966, paras. 1-2.

70 of 243 Brannigan was chosen by the Government to conduct the Praries study, in which he focused on Calgary, Winnipeg and Regina.458 This study found no substantial decline in the rate of prostitution.459 Fully one quarter of all female and one third of all male sex workers interviewed in Calgary had entered the industry after the enactment of the new Criminal Code provisions.460 There was no consensus among interview participants as to whether there had been a change in overall numbers.461 Professor Brannigan did note changes in the make-up of the clientele of the sex workers, with fewer affluent johns, and more low-paying ones.462 Sex workers reported not only this change in client base, but also an increased fear of police activities.463

160. Dr. Brannigan’s findings were synthesized with those of other Department of Justice researchers, and the comparisons showed striking similarities between the Prairie sites and the experiences in Toronto, Montreal, Vancouver and Halifax.464 The new provisions did not deflate rates of prostitution, but merely inflated the criminal records of sex workers, and displaced them into increasingly isolated areas.465 A subsequent study in 1994 by Professor Brannigan for the Department of Justice showed that a strong majority of surveyed sex workers in Calgary felt that the communication provision “forces women to work in more remote and less safe places.”466

161. Professor Brannigan’s research in the area of sex work has led him to conclude that Canada’s criminal law places sex workers in a precarious position: the communication provisions make sex workers risk their lives by foregoing proper client screening, bawdy house laws force them into unsafe situations with unknown clients, and the option to hire assistants or security is removed by the living on the avails law.467 Put simply, Professor Brannigan believes

458 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, p. 1967, para. 5; Augustine Brannigan, Louis Knafla and Christopher Levy, Street Prostution” Assessing the Impact of the Law – Calgary, Regina, Winnipeg, Application Record, Vol. 8, Tab 34(C). 459 Augustine Brannigan, Louis Knafla and Christopher Levy, Street Prostution” Assessing the Impact of the Law – Calgary, Regina, Winnipeg, Application Record, Vol. 8, Tab 34(C), pp. 2124-2125. 460 Ibid., p. 2056. 461 Ibid., pp. 2063-2064. 462 Ibid., pp. 2066, 2125. 463 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, p. 1968, para. 6. 464 Research Section, Department of Justice, Street Prostitution: Assessing the Impact of the Law: Synthesis Report, Application Record, Vol. 75, Tab 157. 465 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp. 1968-1969, para. 7. 466 Augustine Brannigan, Technical Report – Victimization of Prostitution in Calgary and Winnipeg, Application Record, Vol. 8, Tab 34(D), p. 2177. 467 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp. 1966-1967, para. 3.

71 of 243 that Canada’s criminal laws impose a fundamentally unsafe working environment on sex workers.468

162. This conclusion is supported by Professor Brannigan’s 1994 technical study, in which he reviewed six months of Alberta Examiner’s reports of unnatural deaths for women.469 His analysis revealed that “the rate of murder as compared between street workers and other women is disproportionately disparate”470 with prostitutes being 20 times more likely to be murdered.471 Of twenty-one identified homicides in Calgary, Edmonton and Winnipeg between 1985 and 1994 involving a known or suspected sex worker, only seven cases resulted in a charge being laid. Of those, only three resulted in convictions.472 The report identified thirteen of the murdered women as outdoor sex workers, while six were described only as prostitutes without reference to where they worked. The remaining two women were not confirmed to be sex workers.473

163. In addition, in his 1994 study, Professor Brannigan examined the City of Calgary’s bylaws, which require escort agencies to obtain operating licenses. In his research, he found no evidence of forced prostitution or pimping in these establishments. Rather, workers stressed that escort work provides greater opportunities for security and safety than street work.474

164. Professor Brannigan is of the opinion that, while many common law counties attempt to justify criminal prostitution laws on the basis of protecting workers, the true objectives of prostitution laws are often inconsistent and contradictory.475 Overwhelmingly, suppression of sex work trumps protection of sex workers, with the law reinforcing the circumstances that give rise to high murder rates and other forms of victimization.476

468 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp. 1971-1972, para. 14. 469 Augustine Brannigan, Technical Report – Victimization of Prostitution in Calgary and Winnipeg, Application Record, Vol. 8, Tab 34(D). 470 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp. 1969-1970, paras. 8-9. 471 Augustine Brannigan, Technical Report – Victimization of Prostitution in Calgary and Winnipeg, Application Record, Vol. 8, Tab 34(D), p. 2153. 472 Ibid., p. 2168-2169. 473 Ibid., pp. 2156-2164. 474 Ibid., pp. 2146-2149, 2178; Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp. 1970- 1971, paras. 11-13. 475 Augustine Brannigan, “The Postmodern Prostitute: A Thematic Review of Recent Research” (1993) Criminal Justice History 275, Application Record, Vol. 8, Tab 34(B), pp. 1986-1987. 476 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp. 1967-1970, paras. 4, 9.

72 of 243

E. The Expert Opinion of Professor John Lowman

(i) Background

165. Professor John Lowman is a Professor at the School of Criminology at Simon Fraser University. He has been engaged in a 30-year case study of prostitution in Vancouver and he has published extensively in the area. Professor Lowman’s first research project began in 1977. Having three degrees in Geography his first research project in criminology related to the geography of crime and social control.477 It involved an examination of prostitution and law enforcement procedures that flowed from the expansion of the street trade in Vancouver, after the closure of two off-street venues. In 1984 he conducted the Vancouver Field Study of Prostitution (hereinafter “Field Study”) on behalf of the Department of Justice to provide some background research for the Special Committee on Pornography and Prostitution (the Fraser Committee). The field study examined many aspects of the prostitution, prostitution law enforcement and social service provision, including 48 interviews with sex workers.478

166. In 1987-8, he was asked (along with Laura Fraser) to conduct one of five regional studies as part of the Department of Justice’s review of the “communication” law which had been enacted on December 20, 1985 (Street Prostitution: Assessing the Impact of the Law (hereinafter “Evaluation”). The study included interviews with sex workers, clients, managers, police, social service personnel, crown attorneys, defence attorneys and residents in areas of street prostitution, as well as study of charges laid in the first 18 months of enforcement of the new law. The study also included frequent “counts” of sex workers on various “strolls” in Vancouver.479

167. In 1995, again on behalf of the Department of Justice, Laura Fraser and Professor Lowman performed an exploratory study of violence against sex workers being one of five regional studies commissioned by the Department to investigate an apparent increase in violence against street prostitutes after passage of the communication law. The study, Violence Against

477 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, pp. 5904-5905. 478 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, pp. 4145-4146; Submission to the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, submissions of John Lowman, Application Record, Vol. 18, Tab 51(J), p. 5128. 479 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4146; Submission to the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, submissions of John Lowman, Application Record, Vol. 18, Tab 51(J), p. 5128; Cross-Examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, pp. 6005-6006.

73 of 243 Persons Who Prostitute: The Experience in British Columbia (hereinafter “Violence”) involved interviews with key players, a victimization survey completed by sex workers, review of Vancouver Police Department records on sexual assaults against sex workers, review of “bad date” lists compiled to identify perpetrators of violence against sex workers and reviews of newspaper articles and the RCMP Violent Crime Unit database.480

168. From 1996-1998, he was involved in an exploratory study of sex buyers, funded by the British Columbia Ministry of the Attorney General which involved self-administered questionnaires (55) and interviews (36) with clients in Canada and a survey of clients over the internet (134).481 Most recently, he has collaborated with Pivot Legal Society to produce the report, Beyond Decriminalization: Sex-work, Human Rights and a New Framework for Law Reform (hereinafter referred to as “Beyond Decriminalization”). This report analyzes the range of regulatory frameworks that could be implemented if sex-work were to be decriminalized. It is the product of two years of research and interviews with over 84 prostitutes and several managers. Currently he is participating in ongoing research relating to off-street venues. This research examines some of the largest female-owned and managed establishments in an unnamed Canadian city.482

(ii) Professor Lowman’s General Conclusions

169. Based upon his research Professor Lowman believes that the “criminal law materially contributes to violence against prostitutes”483 along with other causal factors such as poverty, drug addiction and lack of education.484 In his affidavit, he articulated three ways in which the governing legal regime “materially contributes” to the victimization of sex trade workers:

1) the Criminal Code provisions force survival sex workers outside and into vulnerable areas, such as isolated streets and industrial areas; 2) street-involved prostitution is more violent than working in off-street venues; and

480 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4146; Lowman, John & Fraser, J., “Violence against Persons who Prostitute: The Experience in British Columbia”, Application Record, Vol. 18, Tab 51(H), p. 4816; Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, submissions of John Lowman, Application Record, Vol. 18, Tab 51(J), p. 5129. 481 Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, submissions of John Lowman, Application Record, Vol. 18, Tab 51(J), p. 5129. 482 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4146, para. 2. 483 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p. 5895. 484 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4162-4163, para. 25; Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p. 6060.

74 of 243 3) in spite of this increased vulnerability, prostitutes do not benefit from the same level of protection and response from police authorities, especially when compared to other citizens.485

170. In addition, in his affidavit he deposes that his research has led to the conclusion that the “Criminal Code provisions actually contribute to legal structures which propagate the belief that a prostitute is responsible for her own victimization, and thus reinforces the line of “they deserve what they get.” In essence, they are “offenders” and not “victims”. The provisions also force prostitution to remain part of the illicit market. As such, the sector is left to primitive market forces, which can create an environment in which the most brutal forms of manager-exploitation take root. Finally the provisions encourage the convergence of prostitution with other illicit markets, particularly the trade in illicit drugs.”486

171. In his supplementary affidavit, he explains that his analysis of Canadian prostitution law has been an attempt to identify the various causal processes by which criminal prohibition marginalizes prostitutes and, in so-doing, exposes them to a greater risk of violence, ill-health and exploitation. His analysis of prostitution law suggests that criminal law plays a causal role in violence against prostitutes by creating the conditions in which violence can flourish. Although the criminal law prohibition is not the direct cause of violence against prostitutes (i.e. the human being who wields the knife or fist is the direct cause of violence), his research suggests that criminal prohibition is a sufficient and indirect cause of violence because, by preventing sex workers from organizing safe work conditions, it plays a decisive role in creating opportunities for violence against prostitutes to occur.487

172. Before turning to the research studies, it is instructive to note an anecdote provided by Professor Lowman to illustrate the “role of the law in the causal process leading to violence against street prostitutes”. In 1998, Jamie Lee Hamilton established Grandma’s House, a charitable society to help survival sex trade workers in the Downtown Eastside of Vancouver. At this time there were fears of a serial killer preying on prostitutes (ultimately leading to the arrest and conviction of Robert Pickton) so some sex workers chose to use Grandma’s House to be able to conduct their business safely. In 2000 the house was raided and it closed shortly thereafter forcing the sex workers back to the street. In defence, Ms. Hamilton challenged the

485 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4149, para. 7. 486 Ibid., p. 4149, para. 8. 487 Supplementary Affidavit of John Lowman, Application Record, Vol. 20, Tab 52, pp. 5736-5737.

75 of 243 constitutionality of the bawdy house law but charges were eventually stayed in 2004 and no determination was made on the constitutional issue.488

173. To understand the nature of the law’s causal contribution, it is also instructive to note Professor Lowman’s responses in cross-examination to the suggestion posed by the Crown that safe houses like Grandma’s House will not reduce violence because the vast majority of street sex workers would not avail themselves of this option due to lack of resources and the fact that “the most important factor in the persistence of he public trade is that there is still a ready supply of tricks for prostitutes working the street”:489

Q. But would you not agree that these factors would continue even if the laws were repealed today? That is that in light of the skills, personalities, and lifestyles of certain women, not all women would be able to make a living as an escort service prostitute. Would you agree with that proposition?

A. I would agree with that proposition and I would add, but, nevertheless, it would be possible for people like Jamie Lee Hamilton and Grandma’s House to provide the infrastructure that these women can’t afford in the name of saving lives. …..

Q. …the availability of such an option even in a decriminalized world would not eliminate the risk of potential predators, would it?

A. The predator would still be there, but if the law is changed, the first significant barrier, the first significant material contribution to the danger that they face would be removed. That is a necessary step in trying to deal with the other issues, the women who may be left on the street and thus at risk. But without the first step being taken, i.e. the dealing with the problem created by the law, the second step becomes very problematic and difficult to take.490

174. Finally, another illustration of the causal role of the law can be found in Professor Lowman’s response in cross-examination to the a finding in a British study indicating that street workers in that jurisdiction are moving into indoor location:

Q. If I could direct your attention to page 1711 in the study, suggests that women are taking themselves off the street to work in indoor locations as

488 Supplementary Affidavit of John Lowman, Application Record, Vol. 20, Tab 52, p. 5744; Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, pp 5893-5894. 489 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p. 6018. 490 Ibid., Vol. 21, Tab 53, pp. 6019, 6074.

76 of 243 locations that are generally safer and more tolerated by law enforcers. Is this not correct? … A. That is highly likely in the British situation where a single prostitute working out of a premise is not susceptible to prosecution under bawdy house law, which is why they work with a maid rather than with another prostitute, the maid providing that safety, third party person. But here again you see the key role of the law in facilitating the move off-street because a woman can work in a single premise in Birmingham without running afoul of the law. If we were to do a similar change of law in Canada, one would be able to predict that you would see a greater movement off-street of certain kind of prostitutes, those who can afford the infrastructure, with a possibility that others would organize that infrastructure for those desperate and marginalized women on the Downtown Eastside who cannot pay for it themselves or they would find some mechanism to make street prostitution more safe by, for example, creating stalls where the business took place rather than allowing a woman to get into a car and go to a dark area where she is completely at the whims of a potential predator. 491

(iii) Displacement and the 1984 Field Study

175. In cross-examination Professor Lowman stated that “one of the most important features of the work that I did from 1977, all the way through to 1995, is the study of displacement phenomena in relation to law enforcement efforts in prostitution”.492 Initially, Professor Lowman examined the phenomena of a rise in street prostitution in Toronto and Vancouver in the late 1970’s as a result of the raids and closures of indoor prostitution venues – two cabaret clubs in Vancouver in 1975, and many massage parlours on the Yonge St. strip in Toronto as a result of the 1977 slaying of Emmanuel Jacques.493 Professor Lowman stated that conventional understanding attributes the rise in street prostitution to the Hutt (1978) decision which imposed significant problems for the police in enforcing the soliciting law; however, “it was not so much the demise of the soliciting law as the results of the police efforts directed at the off-street prostitution that contributed to the expansion of street prostitution in the mid-1970s.”494

491 Cross-examination of John Lowman (Volume Two), Application Record, Vol. 22, Tab 53, pp. 6339-6340. 492 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p. 5936; Supplementary Affidavit of John Lowman, Application Record, Vol. 20, Tab 52, p. 5739. 493 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p. 5941; Lowman, John, “The Folly of Criminalizing Juvenile Prostitution”, Application Record, Vol. 23, Tab 53(E), pp. 6616-6618; Lowman, John “Vancouver Field Study of Prostitution Research Notes”, Application Record, Vol. 16, Tab 51(F), p. 4641. 494 Lowman, John, “Street Prostitution Control, Some Canadian Reflections on the Finsbury Park Experience”, The British Journal of Criminology, Vol. 32, Winter 1992, No.1, Application Record, Vol. 23, Tab 53(E), p. 6617.

77 of 243 176. Professor Lowman distinguished between “intentional” and “unintentional” displacement. He stated that:

An unintentional displacement, one example of that is what happened in the Zanzibar and Penthouse Cabarets in the mid-1970’s and what happened on Yonge Street strip after the Emmanuel Jacques murder. There is pressure put on the indoor establishments and, as a result, prostitution moves to the street. One of the unintended, or at least as far as I understand it was unintended, was the nuisance injunctions in 1984. It was not until those nuisance injunctions that residents of Mount Pleasant began to experience problems with street prostitution in that residential area.495

177. With respect to Vancouver, Professor Lowman recounts how the 1984 nuisance injunctions unintentionally displaced the sex workers from the West End into the residential neighbourhood of Mount Pleasant, and then the law enforcement initiatives to move these workers out of this neighbourhood intentionally displaced the workers into a more hazardous environment. During the late 1980s, the Vancouver Police Department (VPD) ran a series of “prostitution task forces” every summer in Mount Pleasant. These task forces would involve a variety of harassment tactics, (like parking a marked police cruiser next to a woman waiting for dates on a street corner, and to move the cruiser next to her every time she relocated to another corner) in addition to communicating law enforcement. These initiatives successfully moved street prostitution out of Mount Pleasant. Then, in 1997 the City of Vancouver set-up an orange- light district in an industrial area within the downtown eastside (range light refers to an area that is not actively patrolled by police in an attempt to arrest prostitutes and clients. This was done in order to diminish complaints from residents in more populated areas. The Vancouver Police Department stated that they would not arrest prostitutes working within this area. Therefore the prostitutes moved to this more isolated and industrialized space, with limited motor and foot traffic.496

178. These various law enforcement initiatives helped to displace the traditional strolls on the DES and Strathcona, the two lowest income neighbourhoods in Vancouver. When the main DES stroll was displaced into the residential area on the South side of Hasting Street, police and social workers relocated it in the commercial and industrial area on the north side by informing street-

495 Cross-examination of John Lowman (Volume Two), Application Record, Vol. 22, Tab 53, pp. 6491-6492. 496 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4151; Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, pp. 5986-5987, 5954-5955.

78 of 243 level sex workers that they would not be prosecuted if they worked on the North side of Hastings. From 1995 through 2001 about 50 women went missing who worked this orange-light district, including the 26 Mr. Pickton is charged with murdering.497

179. In 1984 Professor Lowman published the Field Study as part of the Justice Department’s program of research on prostitution. The study was designed to fulfill two main purposes: “a) to describe the form, nature and experience of prostitution in Vancouver and b) to describe the activities of agencies and institutions involved with the control of prostitution in Vancouver”.498 To complete this study, Professor Lowman examined, “official police statistics on prostitution offences; interviews with police (15); social service questionnaire with 66 responses; interviews with prostitutes (48), interviews with tricks (4); street prostitution counts on four main strolls and patterns of advertising for escorts and body-rubs”.499

180. Although the Field Study was not designed to specifically study the incidence of violence in the sex trade, Professor Lowman noted that this study provided him with the first indication that there may be a serious problem of violence perpetrated against sex trade workers. He found that 98% of street-involved women had been victims of violence as a result of a bad date at least once while they were working.500 At the time of completing this report, Professor Lowman believed that the vast majority of sex work was based on the streets and he concluded that the finding that 98% of sex workers have been victims of violence applied across the board to all sectors of the sex trade. Since the completion of this report Professor Lowman has come to realize the enormous growth of off-street prostitution, especially with the development of the internet and Craig’s List and accordingly, he no longer believes that this initial finding applies across all sectors.501

497 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4151. 498 Lowman, John “Vancouver Field Study of Prostitution Research Notes” (October 1984), Application Record, Vol. 16, Tab. 51(F), p. 4423. 499 Ibid., pp. 4424-4426. 500 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4154, para. 22; Lowman, John “Vancouver Field Study of Prostitution Research Notes” (October 1984), Application Record, Vol. 16, Tab. 51(F), pp. 4552- 4556. 501 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, pp. 5945-5947, 6056- 6059.

79 of 243 (iv) The 1989 Evaluation

181. Professor Lowman was retained to undertake a review of Bill C-49 (the communication offence) on behalf of the Department of Justice to fulfill its statutory mandate of reviewing this law within 3 years of its enactment. Five field studies were commissioned and a series of questions were presented to the researchers including “Has C-49 contributed to a decrease in street solicitation; Has C-49 contributed to the displacement of prostitution activities; How has C-49 been implemented; What are the perceptions of the actors and What, in the experts’ views, have been the impact of the new law on the business of prostitution (eg. some have expressed the fear that it would be pushed underground, thereby increasing violence against and the exploitation of prostitutes”.502 To complete this review, Professor Lowman conducted interviews with 45 prostitutes (with only 3 never having worked off-street); 17 interviews with johns, several interviews with probation officers, interviews with 5 social workers, interviews with 7 police officers, 4 crown attorneys and 2 defence attorneys. There were also interviews conducted with community representatives. Police, crown and court files were examined to study the implementation of the law and a review of 3 years of newspaper coverage was completed. Finally, head counts on various strolls were conducted on a weekly basis from 1985-1988.503

182. Based upon the head counts, Professor Lowman concluded that the new provision had a “short-lived impact on the levels of street prostitution in Vancouver”.504 It was also concluded that the “main effect…was displacement of prostitutes to the other two primary prostitution strolls…not the reduction in the overall amount of street prostitution”.505 With respect to violence, Professor Lowman could not discern a trend from police records and bad trick lists as there was not “enough information” available506, but there was sufficient information to conclude that “crimes against prostitutes are widespread”.507 However, the analysis of bad date lists did demonstrate that 86% of violent acts occurred when there was one client involved and 98% of attacks occurred while working alone without a “buddy”.508 Finally, Professor Lowman

502 Lowman, John “Street Prostitution: Assessing the Impact of the Law-Vancouver” Research Section, Department of Justice, Application Record, Vol. 17, Tab 51(G), p. 4662. 503 Ibid., pp. 4665-4672. 504 Ibid., p. 4760. 505 Ibid., p. 4760. 506 Ibid., p. 4724. 507 Ibid., p. 4725. 508 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, pp. 4152-4153, para. 16.

80 of 243 noted that “even with the various kinds of information at our disposal, we cannot ascertain definitively if the incidence of violence against prostitutes has changed since the enactment of Bill C-49”.509 It should be noted that at the time of completing this report, Professor Lowman focus remained on the displacement issue and he did not design the study to explore the on- street/off-street distinction in terms of a differential rate of violence.510

(v) The 1995 Violence Study

183. Professor Lowman continued to monitor and track the “geography of the prostitution strolls” in order to update the Department of Justice on the 1989 evaluation of the communication law.511 During the course of this updating process, Professor Lowman contacted the Department to express concern over an apparent increase of violence against sex trade workers. He recounts this situation in the following manner:

I contacted the Department of Justice in the process of them updating the communicating law, which largely from their point of view was about the geography of street prostitution and whether it was still occurring in residential areas. I contacted my main contact person at the Justice Department and said, “We seem to have another phenomenon here,” which some people had talked about which was increasing violence, “You might want to be looking at this, because we seem to have a serious situation.”

At a similar time, a woman by the name of Lori Biesenthal, who was working in the Department of Justice, was looking at some of the first homicide data that reported the occupations of some of the homicide victims, and it was at that point, I forget what it was in the first two years they were reported, but something like 22 prostitute homicides in Canada. At the same time I was talking in the outside of the Department of Justice about what appears to be a very important situation, she was noticing it from the inside. At which point, the Department of Justice decided to sponsor some research, because a lot of these homicides were in Vancouver, it decided to provide more funding for the study in Vancouver. It did three other studies. And when I say its purpose from my point of view in terms of my original decision to say to the Department of Justice, “I think there’s something here you should consider and do some research on,” it was to raise a red flag to what I believed to be a very serious situation.512

509 Lowman, John “Street Prostitution: Assessing the Impact of the Law-Vancouver” Research Section, Department of Justice, Application Record, Vol. 17, Tab 51(G), p. 4727. 510 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, pp. 5978-5979. 511 Ibid., p. 6023. 512 Ibid., p. 6023 l. 18 – p. 6024 l. 21.

81 of 243 184. The study included eight components: 1) interviews with key players (3 sex workers, 1 pimp, 7 officers and six service providers; 2) review of Vancouver police department records on sexual assaults of prostitutes; 3) review of police department records on prosecutions for procuring and living on avails; 4) analysis of “bad trick sheets” from 1985-1993; 5) review of newspaper articles on prostitution from 1900-1993; 6) review of RCMP Violent Crime Unit database for crimes of violence against sex workers; 7) a review of previous studies on violent in the Vancouver street sex trade and 8) a prostitute victimization survey.513 The victimization survey was completed by 65 participants514. Of these participants all had experience working the streets, 29 participants had only worked the streets (45%) and 15 persons currently worked off- street (23.2%) with 36 participants having worked off-street at sometime in the past (55%).515

185. From this study, Professor Lowman found that “77% of street-involved women said they had experienced violence (with an average of seven incidents per person) within the last 6 months. Of these incidents, 97% were with customers of people pretending to be customers”.516 He also concluded that 92% of homicide victims from the sex trade met their assailant on the street.517 As with other studies conducted by the Applicants’ witnesses, he also concluded that 89% of sex workers exhibit negative feelings regarding the police and that 88% of workers believe that vice officers, in particular, do not take active steps to protect their them.518

186. Professor Lowman found a differential rate of violence between on-street and off-street venues supporting the assertion that indoor prostitution can be a significantly safer working environment. One of his primary conclusions, with the supporting data, can be found in this excerpt from the report:519

We find some support for the notion that street prostitution is relatively more dangerous when we examine what types of victimization our respondents have experienced when working on and off the street (Table 99). While working the street, a much larger proportion of respondents reported having been robbed, sexually assaulted, beaten, strangled, and kidnapped, and were more likely to

513 Lowman, John & Fraser, J., “Violence against Persons who Prostitute: The Experience in British Columbia”, Application Record, Vol. 18, Tab 51(H), pp. 4816-4817. 514 Ibid., p. 4927. 515 Ibid., p. 4932. 516 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4154, para. 21. 517 Ibid., p. 4155, para. 24. 518 Ibid., p. 4163, para. 34. 519 Lowman, John & Fraser, J., “Violence against Persons who Prostitute: The Experience in British Columbia”, Application Record, Vol. 18, Tab 51(H), pp. 4934-4935.

82 of 243 have reported being involved in an incident where a weapon was used, or being the victim of an attempted murder. The highest incidence of off-street victimization was in the categories “Refused condom,” “Threat/intimidation,” and “General harassment.” It should be noted that because we asked respondents which kinds of victimization they had ever experienced as opposed to how many times they experienced various kinds of victimization, it is possible that the variations identified here reflect differences in the relative amounts of time respondents spend working on and off the street, not different rates of victimization/harassment.

Table 99 Types of Offences/Harassment

On-Street (n=62) Off-Street (n=22) Count % of % of Count % of % of Responses Cases Responses Cases General Harassment 43 12.4 69.4 11 20.6 50.0 Threat/intimidation 41 11.8 66.1 9 15.7 40.5 Had/use knife 32 9.2 51.6 2 4.1 9.1 Dumped 27 7.8 43.5 1 2.0 4.5 Refused condom 26 7.5 41.9 7 14.7 31.8 Beating 24 6.9 37.7 3 6.1 13.6 Robbery 23 6.6 37.1 2 4.1 9.1 Sexual Assault 23 6.6 37.1 2 4.1 9.1 Had/used gun 22 6.3 35.5 3 6.1 13.6 Unwanted acts 21 6.0 33.9 4 8.2 18.2 Kidnap/confine 20 5.7 32.3 1 2.0 4.5 Strangling 19 5.5 30.6 1 2.0 4.5 Other weapon 17 4.9 27.4 2 4.1 9.1 Attempt murder 6 1.7 9.7 Other 2 .6 3.2 1 2.0 4.5 Total 348 100.0 561.3 49 100.0 222.7

187. The notion of a significantly lower incidence of violence in the indoor setting is supported by other data and information collected for the Violence study. In cross-examination, Professor Lowman was asked to undertake to produce other data and information from the Violence report beyond the Tables 98-101 of the Victimization survey and the following response was provided:

With reference to paragraph 15 of my affidavit, Mr. Morris asked what information in Violence other than that contained in than in Tables 98-101 describes different levels of violence in street and off street prostitution. Response: There are four other sources of information in addition to the survey:

83 of 243 a) Interviews with sex workers who had worked both street and off-street services;

b) Our various sources of homicide statistics - escorts and brothel (massage and body rub) workers constitute a very small proportion of female homicide victims who were reported as being involved in sex work;

c) VPD data on sixty assaults on prostitutes in 1992 and 1993 (Section 7 and Appendix C). Table 61 indicates the strolls that victims were picked up, with 26 missing cases. The scenarios presented in Appendix C indicate that three of these incidents involved women who met the client off-street (at a hotel) and in five cases it is not possible to ascertain. One case involved a murder, in which case it should have been removed from these data. The remainder of the cases appear to pertain to street prostitutes, although it is not clear which stroll they were working when they met the client.

d) Newspaper reports on assaults and other crimes against prostitutes; again these describe street prostitute victims – we did not find crimes against sex workers in off-street venues being reported.

While the lack of “off-street” sex workers in these various information sources may reflect reporting differences to some extent, they are consistent with the other sources of information suggesting that there are substantial differences in the risks associated with different prostitution work styles. Taken together (i.e, by triangulating research methods and utilizing different sources of information) these observations strongly suggest that the risk is greatest when a woman prostitutes alone without any oversight, as often happens in Vancouver’s Downtown Eastside street prostitution stroll.

On the balance of probabilities, it is highly unlikely that reporting variation accounts for all - or even much - of the substantial difference in the victimization of street prostitutes compared to off-street prostitutes, particularly in-call workers, revealed by the various sources of information that constitute the basis of the reasoning presented in my affidavit and elsewhere. Given that Canadian researchers estimate that perhaps 80% or more of the prostitution trade is conducted off-street, these different sources of data indicate real differences in levels of risk for prostitutes working in different settings. If fifty women had gone missing from Vancouver massage parlours from 1995 to 2001, we would surely know it by now. We do know that approximately that number of street-involved women did go missing from the Downtown Eastside; the remains of twenty-six of them were found on a farm in Coquitlam.520

520 Answers to Undertakings from the Cross-examination of John Lowman, Application Record, Vol. 23, Tab 54, pp. 6793-6794.

84 of 243 (vi) Professor Ronald Melchers’ Critique of Professor John Lowman

188. Professor Melchers is a Professor of Criminology at the University of Ottawa. His primary teaching duties have been in research methodology and he has published reports and research on measurement and evidence in legal and criminal justice policy. He was retained by the Crown to “examine three empirical studies conducted by John Lowman in stating his conclusions”521 He was frank in conceding that “I’m not an expert in prostitution research and I have no desire to become one”522.

189. Professor Melchers was blunt in his assessment of the Lowman studies: “the empirical observations supporting this conclusion are invalid, unreliable, and not convincingly free from bias; they are inadequately and poorly analyzed and most likely statistically insignificant; and any variations over time are trivial to the extent they can be reliably known”.523 Despite the strong language in condemning Professor Lowman’s research it became apparent in cross- examination that Professor Melchers’ critique is largely directed to Professor Lowman’s conclusions and not necessarily his methodology in reaching these conclusions:

Q. …My question is, putting aside your objections to the type of evidence that Professor Lowman has relied upon, would you not agree that he has met your requirements of being transparent, discussing his methodological choices, and allowing the reader to be able to make their own assessment? Would you agree with that?

A. Just back up a statement, my objections to the type of evidence. I don’t have any objections to the type of evidence, it’s the use of that evidence that I object to. I don’t have objections to any type of evidence and, indeed, you notice as you go through my affidavit, in many cases I repeat the affirmations and the cautions that were provided in the original reports and those are very often done. There are a couple of instances I would have wanted to see specifically what questions were asked in the case and there are occasions where I would like to have had more information, but especially in the Field Study and also in the Assessment of the Law study, he does a fairly reasonable job of accounting for the choices he made and describing what he did in sufficient detail and it was because he did that that I was able to in fact come to the judgments that I came to.

Q. So the approach that he adopts is consistent with the approach you feel needs to be adopted in a non-experimental setting.

521 Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, p. 17773. 522 Cross-Examination of Ronald-Frans Melchers, Application Record, Vol. 61, Tab 124, p. 17899. 523 Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, pp. 17774-17775.

85 of 243 A. To the extent that I just said, yes.

Q. And again, just to be clear, it’s the conclusions being drawn from the evidence where you depart company.

A. It’s the reasoning on that evidence, it’s what the evidence is taken to be, and then the use of it in drawing conclusions that are drawn from it. In many cases, those are the conclusions that are expressed in the affidavit, not necessarily – because often the conclusions in the original reports are far more modest and don’t necessarily talk specifically about the impact of the law and the danger to prostitutes.

Q. So we do not have to go through those major studies to identify where Lowman specifically mentions his sources and the weaknesses of them. You agree that that is set out fairly clearly.

A. Clearly enough for me to have understood the evidence and understood its uses and limitations, yes.524

190. In a supplementary affidavit, Professor Lowman provided a response to the Melchers’ critique. In Professor Lowman’s view the critique misses the mark primarily because Professor Lowman employed qualitative research techniques whereas Professor Melchers’ expertise lies in the use of quantitative research techniques:

It is my belief that Dr. Melchers has reached this conclusion because he has used inappropriate criteria to evaluate my research. Dr. Melchers’s expertise is in quantitative research. The social science standards he refers to apply to quantitative research. My method is qualitative. As Dr. Melchers has no qualitative research experience or expertise, he lacks the qualifications necessary to assess an affidavit based on qualitative research.525

191. Professor Lowman then explained the differences between the qualitative and quantitative approaches to research design:

In contemporary social science one can find both quantitative and qualitative purists, each arguing that their preferred method is the only acceptable one. Others argue that qualitative and quantitative methods complement each other. They employ qualitative methods to help interpret the results of quasi- experimental research, to replace such research when quasi-experimental design is impractical and/or to address the sorts of research questions for which qualitative methods are most appropriate.

524 Cross-Examination of Ronald-Frans Melchers, Application Record, Vol. 61, Tab 124, pp. 17936-17937. 525 Supplementary Affidavit of John Lowman, Application Record, Vol. 20, Tab 52, p. 5729.

86 of 243

Qualitative research method is typically inductive rather than deductive, places a high value on exploration (Palys and Atchison, Chapter 2), often favours target or purposive sampling (Palys and Atchison Chapter 4), encourages the researcher to be flexible and take advantage of open-ended research instruments (Palys and Atchison, Chapters 6, 7, and 8), and often focuses on the process by which social phenomena are produced and unfold. The procedures of qualitative research are often necessarily ad hoc, developing as understanding of a particular phenomenon evolves.

Qualitative research involves repeatedly returning to the study site or population to pose different questions, each successive round of questioning becoming more sophisticated as the process unfolds, and as elements for further investigation are clarified. Successive iterations produce tighter qualitative design as the researcher’s questions become more focused. In the process, research objectives may well switch from exploratory and descriptive to explanatory.526

192. Throughout his cross-examination Professor Lowman spoke of the need to test qualitative findings through a method of “triangulation”; that is, the process of identifying themes and patterns by examination of multiple data sources:

Part of the iterative process involves using different research methods to answer questions that other research methods cannot address. Social science methods texts refer to this as “triangulation.” Method triangulation involves using as many different kinds of observation and measurement as are available and ethical given the research questions being posed. The iterative process involves continually refining research questions at each stage of the research process by combining research methods, both qualitative and quantitative. One way that qualitative researchers establish the reliability and validity of their findings is by triangulating multiple data sources (Palys and Atchison, p.42).527

193. In cross-examination Professor Melchers’ stated that he did find value in qualitative research methods but not for the purpose of establishing causality:

A case studies method is a very legitimate research method, there’s absolutely no problem with that. Case studies are ideally suited for understanding a situation and its internal mechanisms, what’s happening. When case study is used with qualitative research you get a very good understanding of how people construct their world, how they make decisions within that world as they see it and act. Now, these are all the strengths of case studies. The biggest strength of case studies is that you’re seeing things in situ, in their natural setting, rather than in the laboratory, and so you get a strong naturalness. That’s the real strength of case study. Now, case studies are very narrowly focused, they’re very in-depth.

526 Supplementary Affidavit of John Lowman, Application Record, Vol. 20, Tab 52, p. 5731. 527 Ibid., p. 5732.

87 of 243 You have a real problem, you have to infer from case studies, and causality and inference are really just two sides of the same coin, they are the same thing.528

194. Professor Melchers’ focus on quantitative research methods in borne out by his refusal to acknowledge that Professor Lowman’s research studies contain empirical data other than a quantitative chart of murders against sex workers provided in his Violence study. If a conclusion is not supported by numbers and a statistical breakdown it appears that Professor Melchers’ is unwilling to recognize the value of the conclusion:

Q. We’ll get to the evidence. In paragraph 4, which we’re on, where you say there is no empirical support for the proposition, you don’t think that’s a very overstated statement.

A. Not at all.

Q. Let’s go back to your definition of empirical: observation. Why are Professor Lowman’s surveys and interviews with sex workers, police officers, social workers, not empirical support?

A. Let’s look at the two words that are involved in that. Empirical, certainly they’re empirical. Anything that’s accessible to the senses, whether it’s heard, seen, would qualify as empirical. Support is a different word. Support means that there is evidence submitted that supports an argument.

Q. So shall we change that to weak empirical support?

A. No, I would stick with my original assessment that there’s no support.529

195. Due to his focus on quantitative research methods, it appears that Professor Melchers’ entire critique is based upon the shortcomings of one chart in relation to homicide against sex workers found in Paragraph 23 of Professor Lowman’s affidavit. He states that “the empirical evidence appears to be essentially what is presented in the table at paragraph 23 of Dr. Lowman’s affidavit”530, and that “the only empirical evidence presented in the affidavit as support for the contention that the Criminal Code provisions endanger prostitutes is in [the table]”.531 The impugned table is as follows:532

528 Cross-Examination of Ronald-Frans Melchers, Application Record, Vol. 61, Tab 124, p. 17925. 529 Ibid., p. 17909. 530 Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, p. 17774. 531 Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, p. 17789; Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, p. 17908. 532 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4155.

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Year # of sex worker homicides 1960-1964 0 1965-1969 0 1970-1974 0 1975-1979 3 1980-1984 8 1985-1989 22 1990-1994 24 1995-1999 50* low estimate, since many women still noted as missing may actually be murdered

196. Professor Melchers concluded that this Table could not demonstrate that violence, or murder, increased after the 1985 enactment of the communication law. He stated that the numbers and variations are too small to detect a trend, and that the designation of a homicide as a homicide against a sex worker while working was fraught with uncertainty.533 He asserted that the conclusion drawn by Professor Lowman that murders increased after the enactment of the law was undercut by the fact that other rival hypotheses exist to explain the increase. Professor Melchers asserted that the increased was just a plausibly explained by media reporting trends and an increased media interest in serial killing of sex workers.534 Despite this assertion Professor Melchers conceded in cross-examination that murder is not under-reported by media and “I think if media are aware of a murder case, they will report it”.535

197. It is respectfully submitted that this Honourable Court need not address the qualitative vs. quantitative issue, nor is it necessary to address the thrust and content of Professor Melchers’ critique. Regardless of whether Professor Melchers is correct in his assessment of the research methods and conclusions of Professor Lowman, it is submitted that Professor Melchers’ critique is irrelevant because he has asked the wrong question and assessed the wrong conclusion. It is apparent that Professor Melchers’ work was designed to case doubt on the assertion that “the Criminal Code provisions on prostitution cause the endangerment of endangerment of street prostitutes (emphasis added)”536 In his conclusion Professor Melchers states that he has

533 Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, pp. 17810-17815. 534 Ibid., pp 17803, 17814-17815. 535 Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, p. 17952. 536 Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, p. 17774.

89 of 243 “reviewed the empirical evidence that was used to support the contention that the criminal law endangers street prostitutes” and in cross-examination he confirms that his critique is directed to the claim of a causal relationship between law and endangerment:

What I’m trying to do is to narrow down my consideration to the most relevant issue and both from what I understand, and correct me if I’m wrong, the most relevant issue here is whether or not the Criminal Code provisions, et cetera, endanger prostitutes, and so I’m trying to focus on that issue. Those other issues, I don’t see them as being worthy of the same considerations, worth in the sense of they’re not core to the use of the evidence and the argument that’s being made here.537

198. It is submitted that cogent evidence of the law’s causal contribution could be found in well-documented and externally-verified information showing a distinct increase in violence and murder after 1985; however, this type of evidence may be sufficient but not necessary proof. More significantly, in cross-examination it is clear that Professor Lowman was not asserting a direct causal connection between the 1985 law and increasing violence. As stated earlier, his position is that the law “materially contributes” to violence along with other causal factors. In Lowman’s view, the law prevents sex workers from taking obvious safety measures by placing legal obstacles in the path of workers seeking these protective measures. When Professor Melchers’ was asked in cross-examination to comment on Professor Lowman’s conclusion that the law operates an obstacle to safety in the workplace, he became far more tentative and uncertain about his critique:

Q. …To really bring this to a head, if you look at paragraph 70 following from 68, you have a quote from Lowman, his main conclusion, and this, if I may ask you, is this the main source of departure, the real departure where he says: “The main conclusion of the analysis presented here is that the prohibition and stigmatization of prostitution are the main obstacles to creating safer working conditions for prostitutes”?

A. I honestly don’t know how to answer that question. I’m repeating it from Lowman’s report, I don’t state any opinion about it. This statement here is not that the prohibition and stigmatization of prostitution endangers prostitutes, it’s a more nuanced and more precise statement. I do know that this is what his reasoning points to, and I understand his reasoning. I honestly can’t tell you if this is what’s happening or not because, again, I don’t know this area.

537 Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, pp. 17901-17902, 17910.

90 of 243 Q. So your disagreement would be more if Professor Lowman was to couch his conclusion that the law causes or endangers the prostitute, that’s where you part company, but when he says it in this more nuanced way you’re a bit more agnostic, fair?

A. I think he hasn’t met a burden of proof of causality. This is a different issue. I don't know if he’s met a burden of proof of causality in this case. I simply can’t give you an opinion on this statement. It requires knowledge that I don’t have.538

199. Finally, beyond the problem of Professor Melchers’ assessing the wrong question (i.e does the law directly cause harm) it is submitted that the Melchers’ critique is not helpful because he chose not to review and assess any of the evidence presented by other social scientists which Professor Lowman claims provides support for his conclusions and evaluation. Consistent with his statement: “I’m not an expert in prostitution research and I have no desire to become one”539, Professor Melchers chose not to review any of the other evidence presented in this case or any of the international studies relied upon by John Lowman and appended to his affidavit. Professor Melchers made this choice because he stated that he was not hired to conduct this type of wide-ranging evaluation and because, on occasion, Professor Lowman did not provide any details of the research studies’ findings beyond reference to the article by footnote. The narrowness of Professor Melchers’ approach is captured in these excerpts from cross- examination:

Q. But you didn’t read these supporting studies, you read Lowman’s studies, so you would not be in a position to know whether they’re empirical support, correct?

A. They’re not cited in a way that permits the reader to assess them as empirical support. The conclusions are given, but we’re not given very much information, I think in all cases, what exactly was observed, where the sources of information were, what instruments were used to collect it, what the analytic procedures were and so forth. When you cite other studies, you are supposed to cite enough of the context within which those results were derived for a reader from your citation alone to make some sort of judgment as to whether that is acceptable or reliable or valid.

Q. What’s the purpose of a footnote?

538 Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, pp. 17946-17947. 539 Ibid., Vol. 61, Tab 124, p. 17899.

91 of 243 A. A footnote is to send a reader to a text.

Q. So you could have done that, correct?

A. Say that again.

Q. You could have done that, you could have looked at the references to the other studies that he cited in footnotes, correct?

A. Generally, when you’re using other people’s research to build your own arguments or support your own arguments, a footnote is not sufficient. You’re putting a burden on the reader which is not considered fair in scholarship. You use the footnote really for things that are beyond the core structure of the argument.

Q. But you’re not just a reader, you’re contractually obligated to come up with an analysis of Lowman’s work. You’re being paid for this, so why wouldn’t you go and look at the secondary sources before you say “no empirical support”?

A. That is a burden that’s placed on the reader which is unreasonable in social science writing. When you’re using literature in that way, you’re supposed to cite it fully and completely enough so that the evidence it provides can be weighed and associated.

Q. So you fault Professor Lowman for not giving you enough detail to assess whether this secondary information is supportive. That’s your position.

A. Fault, we’re getting into the same discussion as failed to. He did not.

Q. Putting aside any reasons, you did not look at the references in the footnotes and look at the methodology contained in those references. That you didn’t do as part of your contract.

A. That would have been a very, very massive piece of work. I would have wound up being a researcher on prostitution as a consequence of that. I don’t think that’s a reasonable demand to place on someone doing the work that I was asked to do.

Q. Okay, but is it reasonable for you to write “no empirical support” knowing you didn’t look at the secondary material? Don’t you think that’s an incorrect statement or slightly misleading?

A. There is nothing in the way that secondary material is cited and presented that allows it to be empirical support.

92 of 243 Q. No, you didn’t check the empirical support, you don’t know if it’s empirical support, and you’re saying here there’s no empirical support.

A. It’s the same statement. There is nothing there which permits the reader to conclude that that is empirical support. The absence of being able to conclude whether it’s empirical support, you don't consider it as such. …..

Q. …You’re saying there’s not evidence for his conclusions and I’m putting to you that some of his evidence you chose not to look at for whatever reason.

A. This alone is not evidence, these are just citations and quick references to the conclusions.

Q. You go back, you read the study, there’s the evidence. You’re saying he didn’t put the evidence in, he put in a little bit. Not enough, I agree.

A. You know, when I have graduate students who come to me with their lit review chapters, which is one of the very first things they do for their thesis, and if they cite in this way, I send them back to the sources and I say, “Tell me what they looked at, tell me what they did, what instruments they used, how did they sample, what (--) did they do.”

Q. I understand.

A. “Don’t give me results until you give me all of the steps that allow me to judge how useful that result is in helping you construct your research question.”

Q. Appreciated, but I do wish to point out to you, and tell me if you’re aware of it, each one of the studies I just mentioned is appended as an exhibit to this affidavit. It was there for you to look at.

A. I wasn’t asked to look at those studies. I was asked to look at Dr. Lowman’s work.

Q. And when you were asked to look at Dr. Lowman’s work and you realized he relies upon other people, did you go back and ask whether your contract could be revised so it could be expanded?

A. I honestly don’t know to what extent he relies upon these people. He’s not citing them so much in terms of reliance as he says they have – what’s the term he uses? – they echo. Echo does not mean support or empirically supported. He’s not proposing a meta-analysis which would require him to go into this level of detail. So I reasonably do not consider this to be supporting evidence, but rather ....

93 of 243 Q. You don’t know if it is.

A. I don't know if it is.

Q. You don’t know if it is, that’s the bottom line. What you do spend most of your time on is the chart, Lowman’s paragraph 23. Do you agree, that’s where most of your review and analysis is focused?

A. In my judgment, that was – if there was going to be empirical evidence of causality and inferable, that has the potential at least of doing that. Now, it didn’t.540

200. It is interesting to note that Professor Melchers’ decision to disregard all of the other evidence tendered in this Application may have led him to make erroneous factual assumptions which serve to undercut his analysis of the only empirical date he chose to analyse – i.e. the homicide chart. In rejecting the chart as proof of a trend in homicide he stated:

Q. So just to identify the source of agreement and disagreement, you agree with Dr. Lowman there’s a vulnerability, correct?

A. I agree with Stats Canada there’s a vulnerability as well, yes.

Q. You agree that the numbers of murders have increased without being able to discern a trend yet.

A. I can’t actually say they’ve increased. There’s no trend visible at this point.

Q. But just if you took the last decade and added the numbers up and compared the last decade, would the current, closer decade be higher?

A. Because you’re picking up these 50 homicides attributed to Pickton there will be a larger number. I don't know what that’s evidence of.541

201. If Professor Melchers’ would have chosen to review the Application Record, and some of the studies cited by Professor Lowman, he would have discovered that Mr. Pickton had been charged with 26 homicides (of which he has been convicted of 6 to date). There is no evidence Pickton is believed to be responsible for the “50” missing women/homicides from Downtown

540 Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, pp. 18002-18003, 17932- 17934. 541 Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, p. 17943 l. 20 – p. 17944 l. 9.

94 of 243 Eastside Vancouver. It is reasonable to assume that his assessment of the presence of a “trend” would have been different if he had relied upon the correct information.

(vii) Corroborative Studies – Displacement and the Indoor/Outdoor Distinction

202. In his affidavit, Professor Lowman makes reference to over a dozen studies which he believes support his assertion that safety can be enhanced if the law allowed for sex workers to move into secure indoor locations. With respect to his conclusions about displacement of workers into potentially more dangerous locations, he relies exclusively on the results of the studies he conducted between 1977-1995; however, in terms of corroboration of this finding the following should be noted:

1. The phenomena of displacement was found to be present in other regional studies conducted by other researchers (see outline of evidence of Augustine Brannigan in previous section of memorandum), and the 1989 Synthesis report concluded: “Research also suggests that as a result of the enforcement of C-49, street prostitutes in many of the site studied (Toronto, Vancouver, Montreal and Winnipeg) were geographically displaced to new areas within the city core, either temporarily or permanently. There is little evidence that the law caused prostitutes to move indoors. When the number of advertisements for escort services or massage parlours were analyzed over time, they showed few significant changes. Police forces generally corroborated this view. Perhaps the clearest conclusion of this evaluation is that police enforcement of the new s.195.1 did not suppress the street prostitution trade in most cities. The main effect was to move street prostitution from one downtown area to another, thereby displacing the problem”.542

2. Many of the Applicants’ witnesses deposed that law enforcement led to a negative effect of displacement543

542 Street Prostitution: Assessing the Impact of the Law, Application Record, Vol. 75, Tab 157, p. 22368. 543 Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, pp. 1689-1690, para. 16; Affidavit of Jody Patterson, Application Record, Vol. 7, Tab 30, pp. 1836-1837, paras. 11, 15; Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p. 1869-1970, para. 9; Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp. 1967, 1971-1972, paras. 4, 14; Augustine Brannigan, Technical Report – Victimization

95 of 243 3. Some of the witnesses for the Crown recognized that displacement was a result of law enforcement efforts and that, despite assertions that contemporary policing focuses on “compassionate enforcement” without arrest, the police still chose to arrest street sex workers in order to move them from disrupting residential neighbourhoods.544 For example, Constable Oscar Ramos noted in cross-examination:

Q: “Well, when a sex trade worker, female sex trade worker, the officers, the vice unit officers follow the case through court, correct?”

A: “Yes.”

Q: “And they’d be aware of bail conditions, correct?”

A: “Yes.”

Q: “And I’ve asked if Mr. Lowman is correct that in some cases, I don’t know how many, some receive conditions not to enter areas and end up in worse areas. That happens?”

A: “Yes.”545

In a similar vein, Crown witness, Kate Quinn (PAAFE) noted in cross- examination:

Q: …let’s say that person who is in your neighbourhood doesn’t have an option, and because of the community activism, they feel they are unwanted, which is the goal of having the community activism. Are you afraid they may end up trying to go to more isolated, less residential areas when you are pushing them out of the residential area?

of Prostitution in Calgary and Winnipeg, (1994), Application Record, Vol. 8, Tab 34(D), pp. 2176-2177; Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary (1989), Application Record, Vol. 9, Tab 35(C), p. 2227; Eleanor Maticka-Tyndale et. al., Safety, Security and the Well-Being of Sex Workers, Application Record, Vol. 12, Tab 45(B), p. 3147-3148; Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, p. 6814, para. 22. 544 Affidavit of Detective Howard Page, Application Record, Vol. 34, Tab 81, p. 10010, para. 13; Affidavit of JoAnn McCartney, Application Record, Vol. 35, Tab 82, p. 10056, para. 11; Affidavit of Detective Constable Michelle Holm, Application Record, Vol. 35, Tab 83, pp. 10244-10246, para. 16; Affidavit of Detective Sgt. Gene Bowers, Application Record, Vol. 35, Tab 85, pp. 10293-10295, paras. 25-30. 545 Cross-Examination of Oscar Ramos, Application Record, Vol. 36, Tab 87, p. 10441.

96 of 243 A: “I would be afraid that they would go to more isolated areas, yeah, so we’ve tried not to do that…”

Q. “Someone leaves your neighbourhood, you have a concern about where they may go?”

A. “Absolutely”

Q: “…So is it fair to say that the enforcement patterns of both community and law enforcement has basically just spread prostitution sort of all over the city and is no longer located in one track or stroll, or whatever they’re called?”

A. “What I would say is that our community stood up and said we will not be a red light district of Edmonton…No disrespect to the police, but when the activities were more concentrated in our neighbourhood, it was easier for them to police…the dispersion creates more public awareness, which puts more public pressure on the need for resources.”

Q. “…but dispersal can lead to the sex trade moving into more dangerous locations as they’re being pushed around?”

A. “If you have an unengaged citenzenry, I will have to concede that. If you have an unengaged citenzenry, you can work to create more safety and compassion.”

Q. “…is it fair that if you are dispersing people but in the other locations there are safe houses and the church groups and other people that will take them in, it is not a problem. But, currently, when you disperse people, there is the potential that they are going to be working in some pretty dangerous location?”

A. “Let’s recognize there’s potential for both.”546

203. Before turning to the corroborative support with respect to the relative safety of indoor prostitution, the following facts concerning indoor vs. outdoor prostitution should be noted:

1. As noted by Professor Lowman in his cross-examination, the nature of the sex trade has changed over the past few decades, and it is now estimated that 80% of the trade takes place off-street.547 The 2006 report of the Standing

546 Cross-Examination of Kathleen Quinn, Application Record, Vol. 38, Tab 97, p. 11155 l. 3 – p. 11159 l. 13. 547 Affidavit or Ronald Weitzer, Application Record, Vol. 30, Tab 64, p. 8530, para. 11; Cross-Examination of Detective Jim Morrissey, Application Record, Vol. 34, Tab 79, p. 9868; Affidavit of Detective Randy Cowan,

97 of 243 Committee on Justice and Human Rights stated that “street prostitution accounts for just 5% to 20% of all prostitution activity in this country”.548

2. Statistics Canada’s 1995 Juristat report, Street Prostitution In Canada, noted that: “Since the communicating law has been in force, the focus of arrests has been on street prostitution, For example, in 1995 the vast majority of prostitution incidents involved communication (92%), distantly followed by procuring (5%) and bawdy house incidents (3%). In contrast, only 22% of the incidents recorded in 1985 were for soliciting, while over half (58%) were related to bawdy-house activities, and 19% were for procuring… A little over half (55%) of those charged with a communicating offence were female”.549

3. Crown witness Suzanne Wallace-Capretta, Department of Justice, provided the following updated statistics: “The number of adults charged with prostitution offences in Canada varied from 6,397 in 1996 to 5,701 in 2006. This decrease is similar to the 16% decrease in the total number of federal statute incidents reported during the same time period. … When the total incidents are examined by offence groupings, the majority of incidents of prostitution reported are for communication offences…which comprise more than 85% of the incidents in any given year between 1996 and 2006. … There was an almost equal charging of men and women for incidents of communication: 49% and 51% respectively”.550

4. The 2006 Report of the Standing Committee on Justice and Human Rights noted that “unlike section 213, the bawdy house provisions are rarely enforced by police, as they often pass under the radar of the prosecution process that is driven primarily by complaints. While witnesses testified as to the wide prevalence of various types of indoor prostitution at all levels of society, the

Application Record, Vol. 35, Tab 84, p. 10266, para. 12; Cross-Examination of Detective Constable Eduardo Dizon, Application Record, Vol. 37, Tab 92, pp. 10764-10765, 10768; Dan Gardiner, “The Secret World of Hookers” Ottawa Citizen, 8 June 2002, Application Record, Vol. 10, Tab 38(D), pp. 2559-2560. 548 Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164, p. 24913. 549 Street Prostitution in Canada, Statistics Canada Report, Application Record, Vol. 86, Tab 166, p. 26232. 550 Affidavit of Suzanne Wallace-Capretta, Application Record, Vol. 64, Tab 128, pp. 18922-18994.

98 of 243 rate of incidence is less than one per 100,000 population”.551 The Committee noted that bawdy house investigations are “time consuming and expensive”, and the some of the police witnesses for the Crown also noted that there were few bawdy house charges (only 24/yr in Toronto552) due to the labour- intensive nature of bawdy house investigations.553

204. Evidence supporting the proposition that indoor venues are a safer option for sex workers is found not only in the research of Professor Lowman and the international studies he relies upon in support of his conclusions. Support can be found in the evidence of Crown witnesses. For example, two of the anonymous sex trade workers presented by the Crown noted:

“…On the street, it is physically dangerous. I have been raped, almost strangled to death, attacked while pregnant, and have to fight my way out of vehicles. … I personally have not known physical violence on the inside...”554

“I performed paid sex acts in apartments, houses, hotels and agencies, in cars and parking lots, and other places. Working in an agency can seem safer in some ways, but you’re still alone with the dates, and you have to be very careful not to get on the wrong side of whoever runs the place.”555

205. In addition, support can be found in the evidence of police officers. For example, in speaking to the issue of the low numbers of bawdy house investigations and charges, officers acknowledged that if they were receiving tips or information of brutal violence taking place in indoor venues, they would not hesitate to investigate and intervene. However, they are simply not receiving information of this nature when it comes to indoor venues.556 Further, in discussing the issue of “licensing” sex work in Edmonton, Detective Morrissey, in cross-examination, suggested that licensing of indoor establishments can serve as a safety feature:

Q: “By the way, why don’t you charged the city with living on the avails? You are a vice squad officer. They are taking money for facilitating sexual services.”

551 Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164, p. 24963. 552 Affidavit of Detective Howard Page, Application Record, Vol. 34, Tab 81, p. 10011, para. 16. 553 Ibid., p. 10011-10012, paras. 16-18; Affidavit of Detective Constable Michelle Holm, Application Record, Vol. 35, Tab 83, p. 10247, para. 21; Cross-Examination of Detective Constable Oscar Ramos, Application Record, Vol. 36, Tab 87, pp. 10471-10472. 554 Affidavit of T.D., Application Record, Vol. 33, Tab 72, p. 9684. 555 Affidavit of P.M., Application Record, Vol. 33, Tab 77, pp. 9748-9749. 556 Cross-Examination of Detective Jim Morrissey, Application Record, Vol. 34, Tab 79, pp. 9870-9873; Cross- Examination of Detective Oscar Ramos, Application Record, Vol. 36, Tab 87, pp. 10506-10507; Cross-Examination of Detective Constable Eduardo Dizon, Application Record, Vol. 34, Tab 94, pp. 10765-10768.

99 of 243

A: “Well, they’re trying to keep these girls safe.”

Q: “Do you really think that’s why they do license?”

A: “Yeah.”557

206. The prospects of increased safety through licensing and regulation was commented upon 25 years earlier in the Fraser Committee report in the course of making its recommendation to decriminalize indoor establishments:

Application of this narrower concept of criminal behaviour would result in individuals, and also some businesses falling outside the ambit of the criminal law. From the research reports which were conducted in the Department’s research program, we have the impression that these businesses are often run in a business-like fashion, are safe for prostitutes and are usually less exploitive than are parasitic pimps. If no force or coercion is used in their operations then they would not be caught by the prohibition. They would, however, be subject to municipal regulation. Municipalities have shown that they have the will, capacity and ingenuity to establish and enforce regulatory regimes, which, while demanding, are by no means impossible for escort or dating services to comply with. 558

207. All of the witnesses for the Applicant, both experiential and expert, deposed that safety could be enhanced by movement into indoor venues. Unlike the witnesses for the Crown, it should be noted that most of the studies conducted by witnesses for the Applicant, both experiential and expert, were conducted in Canadian cities and had some participation by indoor sex workers. These studies may not have been exclusively focused on the issue of violence, as was Professor Lowman’s Violence study, however, it is clear that the assertion by these witnesses of the relative safety of indoor locations is an informed conclusion reached after interviewing both street and indoor workers. The relevant studies are outlined in the following chart:

557 Cross-Examination of Detective Jim Morrissey, Application Record, Vol. 34, Tab 79, p. 9879. 558 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154(B), p. 21055.

100 of 243 Study Citation Location Population Work Area Susan Davis (with Raven Vol. 5, Prince 112 sex workers Indoor & Bowen), From the Curb: Sex Tab 22(C) George, Outdoor Workers’ Perspectives on White Rock, Violence and Domestic Vancouver, Trafficking Kamloops, Guildford, Surrey Kara Gillies (co-author), Bound Vol. 6, Halifax, 56 Sex workers Outdoor By Law: How Canada’s Tab 24(A) Montreal, Protectionist Public Policies in Ottawa, the Areas of Both Rape and Edmonton, Prostitution Limit Women’s Toronto, Choices, Agency and Activities Vancouver Jody Paterson, PEERS Survey Vol. 7, British 57 Sex workers 25% indoor, of 57 Sex Workers Tab 30(B) Columbia 25% outdoor, 50% worked in both Augustine Brannigan, Street Vol. 8, Calgary, 70 sex workers Outdoor Prostitution Assessing the Tab 34(C) Winnipeg, (with additional Impact of the Law Regina sources) Augustine Brannigan, Technical Vol. 8, Calgary, 16 sex workers Outdoor Report – Victimization of Tab 34(D) Winnipeg (with additional Prostitution in Calgary and sources) Winnipeg Deborah Brock, Making Work, Vol. 9, Toronto 2 sex workers Indoor Making Trouble: Prostitution as Tab 35(D) a Social Problem Jeffrey, Leslie Anne & Gayle Vol. 11, Halifax, 66 sex workers > 90% outdoor MacDonald, Sex Workers in the Tab 42(B) Moncton, St. workers Maritimes Talk Back John Eleanor Maticka-Tyndale and Vol. 12, Toronto, 120 sex workers Indoor & Frances Shaver, Safety, Security Tab 45(B) Montreal Outdoor and the Well-Being of Sex Workers Lewis, Jacqueline & Eleanor Vol. 12, Windsor 18 sex workers Indoor Maticka-Tyndale Licensing Sex Tab 45(C) (with additional Work: Public Police and sources) Women’s Lives Cecilia Benoit and Alison Vol. 13, Metropolitan 201 current and Indoor & Millar, Dispelling Myths and Tab 48(B) Victoria former sex Outdoor Understanding Realities” workers Working Conditions, Health Status, and Exiting Experiences of Sex Workers

101 of 243 Frances M. Shaver, Sex Work Vol. 24, San 400+ sex Outdoor Police: An Integrated Approach Tab 55(E) Francisco, workers Toronto, Montreal Frances M. Shaver, et. al., Vol. 24, Three major 150+ sex Indoor & Health, Security & Sex Work Tab 55(F) Canadian workers Outdoor Policy Cities Frances M. Shaver, Risk and Vol. 24, Montreal, 60 sex workers Outdoor Risk Management in Sex Work Tab 55(K) Toronto (with additional and Hospital Work sources) Lauren Casey, Behind Closed Vol. 26, Victoria 88 sex workers Indoor Doors: Summary of Findings Tab 59(A) (with additional November 2008 sources)

208. As for the international studies relied upon by Professor Lowman, it must be noted that after a lengthy cross-examination on the details of each study, it became apparent that some of the studies were more in the nature of literature reviews and some did not involve off-street workers. Nonetheless, the literature reviews did contain statements which support the Lowman thesis of relative safety. For example, in describing the value of indoor work in England, Whittaker and Hart noted:

There are two characteristics of flat work which women described as making it safer. First, it takes place indoors in a lit, contained environment – the woman is on her own territory which enables her more easily to take control of the interaction. The explicit or implicit comparison is with street work… The second characteristic described as facilitating their safety by this sample of women is that they work with a maid. This is one of the key differences between women working in these flats and women working on the streets. On the streets, although women try to have someone in attendance, this is often an unpredictable and opportunistic arrangement.559

209. Further, the on-street studies relied upon corroborate Professor Lowman’s conclusions about the dangers and risks confronting street sex workers in Vancouver. Sue Currie headed a research group which interviewed 145 prostitutes working/living within the DES, during a five week period in 1993 – 1994.560 The Crown expert in research methodology, Professor Ronald Melchers noted that he was very impressed by this study.561 She found that 77% of women had

559 Research Note: Managing Risks: the Social Organization of Indoor Sex Work, Application Record, Vol. 19, Tab 51(W), p. 5494. 560 Assessing the Violence Against Street-Involved Women in the Downtown East Side/Strathcona Community, Application Record, Vol. 19, Tab 51(M), p. 5211. 561 Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, p. 17916.

102 of 243 been victims of violence in the past 6 months. Of those who had experienced violence 62% of those said that they were sexually assaulted. Currie states that roughly half of the women who were victimized went to the police to report the incident. When asked why these sex workers did not approach police, 33% said it was due to the fact that they were being treated with disrespect.562 Another 27% did not believe that any police service would be effective, and therefore ‘why bother’. In all, over 89% of respondents said that they had a negative perception of police services. Many of the women spoke of inappropriate conduct and incidents by police. Interestingly, no other service providers elicited similar responses. The results seem to indicate a lack of accountability as well as an absence of sensitivity training for the police.563 Currie notes that 67% of street workers believed that implementing a buddy system would be the most effective way to eliminate or minimize the number of negative incidents experienced by prostitutes.564 However, under the current legal framework, any organized ‘buddy-system’ would be illegal.

210. The Vancouver-based sex work group, Prostitution Alternatives Counseling Education (PACE) also commissioned a study entitled “Violence Against Women in Vancouver’s Street Level Sex Trade-and the Police Response” in 2001.565 Leonard Cler-Cunningham and Christine Christensen, the main authors of the study, interviewed 183 street level sex trade workers. It is their opinion that the current system of quasi-criminalization bears a direct responsibility for the violent conditions suffered by street sex workers in Vancouver.566 The rates of violence against street workers in Vancouver, they argue, are the highest suffered by any group of women in Canada, yet surprisingly, their recourse to the protective potential of the police or the courts is practically non-existent.567 The authors feel that this indicates an unintended support for violence against street level sex trade workers. They state that the Vancouver Police Department itself is fully aware of the threat of violence against street workers. In fact, the authors report that the VPD is currently reconsidering their use of female operatives posing as sex workers due to the

562 Assessing the Violence Against Street-Involved Women in the Downtown East Side/Strathcona Community, Application Record, Vol. 19, Tab 51(M), p. 5221. 563 Ibid., p. 5239. 564 Ibid., p. 5240. 565 Violence Against Women in Vancouver’s Street Level Sex Trade and the Police Response, Application Record, Vol. 19, Tab 51(N), p. 5246. 566 Ibid., p. 5257. 567 Violence Against Women in Vancouver’s Street Level Sex Trade and the Police Response, Application Record, Vol. 19, Tab 51(N), p. 5355.

103 of 243 high potential for them to be victims of violence.568 For example, one female police officer who was posing as a sex worker was out of work for a year after a date brutally assaulted her in the ten seconds it took for her back-up to arrive on scene.569

211. Cler-Cunningham and Christensen present some troubling statistics which indicate that the conditions for Vancouver women in the survival sex street trade are continuing unabated into the 21st century.570 For example, 43% of workers report being robbed in the last year. In addition, almost 40% of workers report being physically threatened within the past month.571 30% disclosed being threatened with a weapon at least once in the past year, with an average of 2.52 incidents per person per year. Kidnapping was also quite common with an average of 1.78 incidents per person per year.572 Shockingly, 33% of street workers have experienced at least one attempted murder against them, with an average of 2.18 incidents per person per year.573 Unfortunately, only 60% of those who were threatened with death decided to report the encounter to the police.

212. Finally, consistent with the findings made by Professor Lowman of an escalating level of violence in the Vancouver street trade, Cler-Cunningham and Christensen found that the levels of violence had significantly increased since 1994 (based on a comparison with the 1994 data presented by Professor Lowman in Violence):

568 Ibid., p. 5294. 569 Ibid., p. 5295. 570 Ibid., p. 5341. 571 Ibid., p. 5300. 572 Ibid., p. 5319. 573 Ibid., p. 5322.

104 of 243 Frequency % (Missing values removed) Table 124: Changes in Violence Violence Violence Violence Violence 1994 1999-2000 1994 1999-2000 (Percentage change in brackets) General harassment 43 147 69.4 83.1 (+13.7%) Threat/intimidation 41 122 66.1 70.5 (+4.4%) Had use knife 32 51.6 Dumped 27 43.5 Refused condom 26 145 41.9 82.9 (+ 41%) Beating* 24 87 38.7 51.2 (+ 12.5%) Robbery 23 95 37.1 53.7 (+ 16.6%) Sexual Assault** 23 81* 37.1 45.8* (+ 8.7%) Had used gun 22 35.5 Unwanted acts 21 33.9 Kidnap/Confine 20 72 32.3 41.9 (+ 9.6%) Strangling 19 30.6 Other weapon 17 27.4 Attempted Murder 6 58 9.7 33.1 (+ 23.4%) Other 2 3.2 Threatened with a weapon 77 44.5 Assault with a weapon w/o 50 30.3 rape A weapon was used during 66 40.7 rape * The 2000 survey asked: “Since entering the sex trade has anyone physically assaulted you without a weapon being involved when you were working on the street?” ** The 2000 survey asked: “Since entering the sex trade has anyone tried to force you to have sex against your will without a weapon being involved when you were working on the street?”

213. At the international level, the studies demonstrating a differential level of violence between indoor and outdoor venues can be summarized as follows:

1. Stephanie Church et al. Study Name: Violence by clients towards female prostitutes in different work settings: questionnaire survey, Application Record, Vol. 15, Tab 51(Q) Year: 2001 Location: Leeds and Edinburgh Number of Interviewees: 240 female sex workers (115 outdoor workers, 125 indoor) Key Chart: (Application Record, p. 5418)

105 of 243

106 of 243 2. Libby Plumridge & Gillian Abel Study Name: A ‘segmented’ sex industry in New Zealand: sexual and personal safety of female sex workers, Application Record, Vol. 18, Tab 51(Q) Year: 2000 Location: Christchurch, NZ Number of Interviewees: 303 female sex workers Key Chart: (Application Record, p. 5464)

3. Priscilla Pyett & Deborah Warr Study Name: Women at risk in sex work: strategies for survival, Application Record, Vol. 18, Tab 51(U) Year: 1999 Location: Victoria, AU Number of Interviewees: 24 female sex workers (12 outdoor workers, 12 indoor workers) Key Statements: • “Physical assault and difficulties with enforcing condom use were reported much more frequently by street workers than by brothel workers.” (p. 5473) • “All of the women who had engaged in street sex work had been exposed to frequent and considerable risks of violence from clients and had experienced at least one serious assault. … Most of the women working in legal brothels, on the other hand, reported feeling safe. Only one claimed to have experienced a violent incident while working” (p. 5474) • “Legal brothels clearly provided the safest environment for sex workers, although some women were unable to maintain control of the sexual encounter when severely affected by drugs. The level of support provided by brothel managers contributed to the women’s safety in regard to both sexual health and physical assault. Street workers were at much greater risk of coercion, threats, and physical assault by clients, had suffered more violence and experienced much poorer health, usually associated with drug use. However, women’s choice of work environment was itself constrained by their age, drug dependence and capacity to manage the routine working hours of brothel employment. We found that the degree of control individual women were able to exert during sexual encounters with clients was affected not only by the legal context of sex work but also by the

107 of 243 age, experience, self-esteem and self-confidence of the women and by their drug use at the time of the encounter.” (p. 5481)

4. Roberta Perkins & Frances Lovejoy Study Name: Healthy and unhealthy life styles of female brothel workers and call girls (private sex workers) in Sydney, Application Record, Vol. 30, Tab 64(M) Year: 1996 Location: Sydney & New South Wales, AU Number of Interviewees: 95 “call girls” in Sydney (via questionnaire) and 124 brothel workers in NSW (via interview) Key Chart: (A.R., p. 8771)

Table 8: Objectionable behaviours of clients reported by sex workers Call girls Brothel workers Behaviour N = 95 N = 124 N % N % Objection to condoms 4 21 12 97 (most client) Objection to condoms 10 10.5 8 6.5 (half of clients) Obsessive desire for a worker 39 41.1 66 53.2 Menaces and threats 17 17.9 15 12.1 Nuisance Phone calls 57 60 26 21 Harassment without violence 10 10.5 26 21 Robbery without violence 8 8.4 5 4 Robbery with violence 1 1.1 5 4 Rape at work 8 8.4 8 6.5 Bashing or stabbing 3 3.2 9 7.2

Key Statements: • “Most acts of violence against sex workers have occurred when the victim is most vulnerable, such as when she is alone, whether in her own premises, visiting a client in his home, or in a client’s car. The call girl, along with the escort and the street worker, is in this potentially dangerous situation much more often than the brothel worker, who is usually within close proximity to her workmates, the receptionist or the manager.” (p. 8772)

5. Barbara Brents & Kathryn Hausbeck Study Name: Violence and Legalized Brothel Prostitution in Nevada, Application Record, Vol. 20, Tab 51(Z) Year: 2005 Location: Nevada Number of Interviewees: 40 female sex workers (plus surveys from 25 additional sex workers) Key Statements:

108 of 243 • “The mechanisms most consistently employed in brothels to provide safety from various types of risks and threats include guidelines or the negotiation process, call buttons and audio room monitoring, control of customer behaviour, good relations with police, limiting out-of-brothel services, limiting the movement of prostitutes, adhering to heath regulations and engaging in preventative practices.” (p. 5555) • “Our interviewees reported that they work in the brothels because they feel safe there. Of more than 40 prostitutes we interviewed, from large and small, suburban and rural brothels across Nevada, only one reported any personal experience with violence in the brothels.” (p. 5565) • “Although an answer to the question of whether or not violence is inherent in the sale of adult consensual sex remains elusive even after this research, the empirical evidence presented here offers some insights and a more grounded approach to examining the issue. There is strong indication from the interview, document analysis, and ethnographic data presented here that legal brothels generally offer a safer working environment than their illegal counterparts. Regulated brothels offer particular ways of dealing with pragmatic safety issues and minimizing actual violence, including violence passed from johns to prostitutes and back to johns through diseases, viruses, and infections. Nevada brothels offer specific mechanisms to protect workers via the ways transactions are organized, the ways technology is ordered, the visibility of customers, the bureaucratic relationships among customers, managers, and workers, and the cooperation with police based on the mere fact of their legality. All of these mechanisms work to eliminate systematic violence and to discourage an atmosphere of danger and risk that, as a mirror image of fact, is significant.” (p. 5571)

214. Other comparative studies with street and off-street populations do not provide a statistical breakdown of violence, but reach conclusions consistent with the Lowman thesis. For example, in a British study with 55 sex workers who had worked both venues, and with 5 female managers, Teela Sanders found that:

As a reaction to the increasing levels of violence, drug-related crimes and policing, it was becoming increasingly popular to combine working on the street with working from indoor locations…either women continued to use the streets to attract clients but performed the service at an indoor locations…or they found permanent work indoors (often a rented establishment with others)… This can be understood as a positive displacement of prostitution from the street to indoor locations which are generally safer and tolerated by law enforcers”574

215. With respect to recent Canadian studies designed to examine working conditions in indoor venues, a study prepared for the Law Commission of Canada, comparing the experiences

574 Teela Sanders, “The Tisks of Street Prostitution: Punters, Police and Protesters” (2004) 41 Urban Studies 1703, Application Record, Vol. 19, Tab 51(X), p. 5515.

109 of 243 of 14 indoor workers in “erotic service establishments” and 15 exotic dancers, found that “sex workers have chosen to work in erotic service establishments because they perceived them as affording greater safety than other forms of sex work”.575

216. In 2007, Tamara O’Doherty completed her Masters of Criminology thesis, Off-Street Commercial Sex: An Exploratory Study576. Professor Lowman was her supervisor and the thesis was considered a continuation of this work in this area.577 The research involved victimization surveys with women working in the middle and upper echelons of Vancouver’s sex trade. Based upon 39 survey respondents and ten interview participants, she has demonstrated that the incidence of violence in the off-street sex trade is dramatically lower than the incidence of violence for those working the streets. Whereas the vast majority of women working on the streets have experienced some form of violence, the vast majority of women working in massage parlours, escort services or as independent operators have not experienced any violence. To demonstrate the differential she compared rates of violence among her indoor population with the rates of violence found in the Vancouver street trade by Cler-Cunningham (discussed above):

Table 4: Comparison by Venue

Type of Victimization O’Doherty (2007) N = 39 Cler-Cunningham & Christenson (2001) N = 183 Venue Massage Escort Independent Street Threats 28% 29.2% 15.4% 70.5% Threats with weapon 13% 16.7% 7.7% 44.5% Physical Assault 17.4% 25% 15.4% 51.2% Sexual Assault 13% 12.5% 11.5% 45.8% Kidnapping/confinement 8.7% 20% 7.7% 41.2% Theft (robbery) 54.2% 25% 12% 53.7% Refuse condom 28% 37.5% 25.9% 82.9%

217. In addition, in cross-examination of Professor Lowman, the Crown called into question the fact that Ms. O’Doherty did not provide data on the frequency of occurrence of violence in indoor setting; however, in response to an undertaking, Professor Lowman provided the data not included in the report which demonstrates that not only do indoor workers experience less

575 Erotic Service/Erotic Dance Establishments: Two Types of Marginalized Labour, Application Record, Vol. 11, Tab 43(F), p. 3057. 576 Supplementary Affidavit of John Lowman, Application Record, Vol. 20, Tab 52(A), p. 5746. 577 Cross-Examination of John Lowman (Volume 1), Application Record, Vol. 21, Tab 53, pp. 6167-6168; Affidavit of John Lowman, Vol. 15, Tab 51, p. 4159, para. 30.

110 of 243 violence, but the vast majority of those who do experience violence have only experienced one or two incidents.578 Mr. O’Doherty did suggest in her thesis that other factors, such as age, education and financial circumstance may play a greater role in increasing the risk of violence than does the location of the work; however in cross-examination, Professor Lowman responded to this suggestion in this manner:

Q. Do you accept the following statement by Ms. O’Doherty at pages 104 to 105: “It is this financial circumstance, more than which venue the woman is working in, how old she is, or whether or not she has a university degree, which may be a far more accurate determinant of who is likely to experience violence while working in the sex industry.” So my question is this – first of all, do you accept that statement?

A. It depends on how you interpret it. The way I interpreted that statement to say is it’s the women who can afford the infrastructure that exists when you can hire help, when you have the kind of money that you need to be able to pay the kinds of fees that you need to work in escort services or in massage parlours. It is their ability to be able to pay for that kind of infrastructure, so when you go back to the nature of opportunity that I describe for Violence, it’s these women who are able to pay to work in the situations which minimize the opportunity for violence. So it is a combination of factors.

Q. So, then, you would disagree with that statement.

A. I would not disagree with that statement. As I said, it depends on how you interpret that statement. I interpret that statement as a multi-causal statement. It says more than which venue, not that venue doesn’t have anything to do with it at all.579

218. Expert witnesses for the Crown and for the defense both discussed the one and only study of a comparative nature that does provide some evidence that levels of violence in an indoor setting are as violent as those confronting street sex workers. In a study of 222 sex workers (not clear how many were indoor vs. outdoor), Raphael and Shapiro found that “women indoors were frequent victims of violence and, in some instances, the type of violence was more serious and the levels higher than those experienced by women outdoors.”580 Both Professor Ronald Weitzer and Professor John Lowman discounted the significance of this study for two reasons. First, the indoor venues chosen for the study were unusual in that the authors did not canvas the views of

578 Ibid.. 6171-6173. 579 Cross-Examination of John Lowman Volume 1, Application Record, Vol. 21, Tab 53, pp. 6196-6197. 580 Violence in Indoor and Outdoor Prostitution Venues, Application Record, Vol. 20, Tab 51(AC), p. 5627.

111 of 243 workers in the most prevalent off-street settings, ie. massage parlours, body-rub parlours and brothels.581 However, the authors did include as off-street settings a “drug house” (which by definition would be an exploitive setting) and escort and hotel services (out-call services are not the equivalent of a secure indoor setting).582 Second, the authors candidly acknowledged that “this research project was also designed within a framework of prostitution as a form of violence against women and not prostitution as a legitimate industry that women or men can choose as their job or career”.583 The authors note that “every attempt has been made to interpret the data objectively”584, but one must not forget that Crown methodology expert, Ronald Melchers, indicated that one would have to be “on guard” in accepting findings made within the context of a politically-motivated study.

3. Government Debates and Government Reports Since 1972

219. The term “prostitution” is not defined in Canada’s Criminal Code, and the act of selling sexual services has never been illegal in the country. In Canada’s first Criminal Code in 1892, a provision was included deeming the activities of a prostitute to be a form of vagrancy (known as the “vag c” charge). Section 207(I) deemed every women a vagrant who “being a common prostitute or nightwalker is found in a public place and does not, when required, give a good account of herself”.585

220. This provision when unchanged for 80 years until 1972, when Bill C-2 was introduced in the House of Commons recommending numerous amendments to the Criminal Code including a repeal of the vagrancy provision. Addressing the Standing Committee on Justice and Legal Affairs on May 9th, 1972 the Minister of Justice Otto E. Lang noted that the vagrancy provision was being repealed “as really being too vague for the purposes of criminal law.”586 In addition, the amendment was partly based on the report of the Status of Women, which has expressed concerns over the lack of gender neutrality in the vagrancy provision.

581 Cross-Examination of John Lowman (Volume 2), Application Record, Vol. 22, Tab 53, p. 6366; Affidavit of Ronald Weitzer, Application Record, Vol. 30, Tab 64, p. 8532, para. 13; Cross-Examination of Ronald Weitzer, Application Record, Vol. 31, Tab 65, pp. 9063-9065. 582 Violence in Indoor and Outdoor Prostitution Venues, Application Record, Vol. 20, Tab 51(AC), p. 5624. 583 Ibid., p. 5623 584 Ibid., p. 5623. 585 The Criminal Code 1892, Application Record, Vol. 65, Tab 141, p. 19182. 586 Minutes of Proceedings and Evidence of the House of Commons Standing Committee on Justice and Legal Affairs, Application Record, Vol. 67, Tab 150(B), p. 19929.

112 of 243 221. In July of 1972 Bill C-2 was proclaimed and section 195.1 – soliciting – was introduced into the Criminal Code.

222. No additional changes to provisions relating to prostitution were considered until ten years later, when on May 6th, 1982 Parliamentary Secretary to the Minister of Justice Jim Peterson proposed the following motion to the House of Commons:

That there be an instruction to the Standing Committee on Justice and Legal Affairs that, during its consideration of Bill C-53, it take into consideration all legal methods for dealing with street soliciting for the purpose of prostitution including Section 195.1 and 171 of the Criminal Code of Canada as well as various provincial and municipal laws presently in force in this regard, including the hearing and consideration of the views of the interested persons and organizations.587

223. After several months of hearings during which evidence was tendered by a variety of witnesses including federal and municipal government officials, police officers and different activist groups representing women and communities, the Standing Committee on Justice and Legal Affairs produced an eight-page report containing five recommendations (note: these recommendations do not relate to the issues in the case at bar). Citing the narrow parameters of the order of reference, the Standing Committee kept their report “narrow in scope, directed solely to the issue of dealing with the practice of street prostitution”588. While committee members were unanimous in recommending that s195.1 be clarified to allow for equal prosecution of both prostitutes and clients, the formal report described a lack of consensus between members as to the overall effectiveness of the current laws:

There is a difference of opinion as to whether the full resources of the existing law, both criminal and municipal, have been brought to bear on problems associated with street prostitution. Some members of the Committee contend that they have not, while others believe that the inadequacy of existing laws has been shown. This latter view has prevailed, and a majority of Committee members have recommended substantial amendment of the Criminal Code.589

224. The Committee’s recommendations for changes to the Criminal Code were subsequently rejected on June 23rd, 1983 by the Minister of Justice, who instead announced the formation of a new committee to study the issue further.

587 House of Commons Debates, Application Record, Vol. 68, Tab 152, p. 20074. 588 Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, Vol. 70, Tab 152(R), p. 20805. 589 Ibid., p. 20806.

113 of 243 225. Under instruction from the Minister of Justice, the Special Committee on Pornography and Prostitution (Fraser Committee) conducted hearings at twenty-two centres across Canada where hundreds of organizations and individuals presented briefs and proposed solutions to the issue of prostitution. These public hearings revealed a clear divide in public opinion with regard to the country’s present laws:

The public hearings revealed that there are two distinct, and diametrically opposed, schools of thought regarding the present law on prostitution. On one side, one tend to find the police, mayors, municipal officials and community group representing areas affected by prostitution, as well as conservative church groups. On the other are organizations such as women’s groups, civil liberties associations, social workers, some churches and gay organizations.590

226. In addition to the public hearings, the Committee received information from research conducted by the Department of Justice. This research was comprised of three major components: five regional studies, a national population survey, and a review of prostitution and its control in selected countries across the world. Finally, several smaller studies were conducted examining specific topics such as media coverage of prostitution activities and the incidence of sexually transmitted diseases. The findings of both the hearings and research studies revealed disparities between common assumptions about prostitutes and the reality of those working in the industry:

The notion that prostitutes are on the street in order to earn large amounts of money necessary to support a serious drug habit, does not find significant support from the research. There are some prostitutes who are in this position, but they appear to be a very small part of the business and not at all typical. While some use alcohol and drugs in order to be able to cope with their work, the majority are not heavy users and do not want to lower their levels of awareness. In what is often a violent business, prostitutes need to keep all their wits about them.591

227. Based on the information they received from the public hearings and independent research, the Committee determined that dealing with prostitution through the creation and enforcement of special laws had not resulted in a significant reduction of the problems associated with prostitution, and instead stigmatized and endangered sex workers:

590 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154(B), p. 20872. 591 Ibid., p. 20893.

114 of 243 The fact that we have special laws surrounding prostitution does not, however, result in the curtailing of all of the worst aspects of the business, or in affording prostitutes the same protection as other members of the public. Indeed, because there are special laws, this seems to result in prostitutes being categorized as different from other women and men, less worthy of protection by the police, and a general attitude that they are second- class citizens. The police and the public act towards prostitutes in ways they would not with other women or men.592

… The current special status of prostitution in the Criminal Code does not appear to have given society the protection it seeks from the harmful consequences of prostitution, nor to have given prostitutes the right to dignity and equal treatment in society.593

228. In particular, the Committee found the provisions relating to bawdy house, living on the avails, and soliciting offences to be fraught with problems. In terms of the bawdy house laws, the Committee questioned the merit of a provision which appeared to criminalize private consensual sexual activity:

In light of the fact that prostitution nor being a prostitute is a crime, it may be questioned why, in Canadian law it is still an offence to be an inmate of or a customer found in a bawdy house. The retention of these offences seems to contradict the distinct tendency of the criminal law in modern times not to penalize sexual conduct, even when paid for, which takes place in private. The same argument may also be made in relation to the prostitute operating out of her own residence. Whatever the possible objections to commercialization of prostitution, they have no obvious reference to the conduct of the individuals engaged in acts of prostitution.594

229. With regards to the offence of living on the avails of prostitution, the Committee was concerned that broad interpretations of the provision on the part of law enforcement officials were taking the law beyond its intended purpose of curtailing parasitic pimping, and were subsequently failing to respect the rights afforded to Canadian citizens.595

230. Ultimately, the Committee reviewed four potential strategies for dealing with prostitution: further criminalization, decriminalization, regulation, and a hybrid approach of further criminalization coupled with selective decriminalization of different elements of prostitution. In determining what recommendations to issue in their final report, the Committee

592 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154(B), p. 20910. 593 Ibid., p. 20911. 594 Ibid., p. 20931. 595 Ibid., p. 20933.

115 of 243 gave specific consideration to formulating approaches which addressed all forms of prostitution as a cohesive whole, in order to avoid the kind of ineffective and dangerous displacement of sex workers so often created by enforcement of the current laws:

Because of the haphazard and inconsistent way in which the law of prostitution has developed, it ignores the tensile quality of prostitution and the linkages between the various forms of prostitution. …the law, in both its substance and enforcement, fails to recognize the reality that if pressure by the law is exerted in one context or location, it will produce a shift of the activity to another setting or location. This is seen in street prostitution where police charges or harassment in one location will produce a migration or dispersal of prostitutes to other areas which appear to be less subject to police scrutiny and public concern.596

231. Of additional concern for the Committee was the current laws’ effects on sex workers’ ability to take their legal activities indoors, when private off-street locations could eliminate many of the negative affects experienced by communities dealing with high incidences of street prostitution:

while we talk of prostitution being free of legal sanction, we in reality use the law indirectly and capriciously to condemn or harass it, providing no safe context for its operation except that which can be bought by the prostitute of means, or, as is more likely, the well-heeled sponsor or sponsors.597

232. When the Fraser Committee’s formal report was released on April 23rd, 1985, it contained fifteen recommendations pertaining specifically to adult prostitution, including Recommendation 55:

The prostitution related activities of both prostitutes and customers should be removed from the Criminal Code, except insofar as they contravene non- prostitution related Code provisions, and do not create a definable nuisance or nuisances.598

233. In explaining their decision, the Committee offered the following insight:

The approach which the Committee takes stems from its concern to underline the elements of equality, responsibility, individual liberty, human dignity and appreciation of sexuality which we have emphasized in Chapter 2. It is our belief that as long as prostitutes continue to be open to prosecution as, for example, the inmates of bawdy houses or for soliciting on the streets, our concern with

596 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154(B), p. 21050. 597 Ibid., p. 21051. 598 Ibid., p. 21199.

116 of 243 prostitution will continue to be misdirected and the law will get in the way of more beneficial social strategies. Although we do not in any way favour people pursuing prostitution as a career, we also believe that adults who determine that they want to pursue that lifestyle and do so without engaging in incidental criminal activity should be able to do so with dignity and without harassment.599

234. Though they recommended a repeal of the Criminal Code provisions pertaining to prostitution related activities, the Committee expressed a clear belief that such activities should occur indoors:

To its credit, the law has traditionally sought to deprecate and punish the commercialization and exploitation associated with prostitution. We are inclined to believe, however, that the concern has been too broad. We are of the opinion that prostitution-related activities should not take place in public places because of the offence involved and the proven dangers to prostitutes which the street life produces. The question thus arises whether some leeway should be provided to it off the street. We believe that it should. …it should operate in a way which will minimize the chances of harm to third parties and the community at large, reduce the opportunities for commercial crime, and ensure the health and welfare of the prostitutes.600

235. In order to achieve this objective, the Committee included Recommendation 57, which advocated a different approach to the concept of bawdy houses:

The criminal law relating to prostitution establishments should be drawn so as not to thwart the attempts of small number of prostitutes to organize their activities out of a place of residence, and so as not to prevent provinces from permitting and regulating small scale, non-residential commercial prostitution establishments employing adult prostitutes.601

236. In particular, the Committee felt that residential arrangements involving two sex workers together offered many potential benefits:

This option may well provide a desirable alternative to working the streets, because we expect it would be free of the exploitive elements normally associated with bawdy houses. … Two prostitutes together might well help each other, with rent, child care, and emotional support, instead of exploiting each other. Where two are together, they could do for each other the things which a pimp is sometimes said to do, i.e., provide support of resources in a crisis.602

599 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154(B), p. 21052. 600 Ibid., p. 21053. 601 Ibid., p. 21200. 602 Ibid., p. 21055.

117 of 243 237. Beyond their recommendation for the repeal of some Criminal Code provisions, the Committee also advocated specific amendments to narrow the scope of certain provisions that were, at the time, unjustifiably broad. With regards to the offence of soliciting, the Committee felt the Criminal Code needed to focus solely on the community harm created by such activities:

In the opinion of the Committee, it is the nuisance caused to citizens, whether by harassment or obstruction on the street, or by unreasonable interference with their use and enjoyment of property, which is the ill to be addressed. This means that some perceptible interference with members of the public or neighbouring occupiers must be proven. … We also believe that it should not be sufficient basis for attaching criminal responsibility that a prostitute or customer offer to engage in rostitution. Apart from the fact that it is difficult to characterize this as an intolerable interference, the methods which would be employed by the police to secure convictions are unacceptable. While undercover and decoy work may be necessary in certain cases…of serious crime, we see no justification for its use in dealing with this relatively minor form of criminality.603

238. When addressing the offence of living on the avails of prostitution, the Committee felt that the accompanying Criminal Code provision should draw a distinction between pimps and a sex workers’ loves ones, both of whom were liable under the present wording of the law:

…the criminal law’s concern with the exploitive aspects of prostitution in the case of adults should be limited to conduct which is forcible or threatens force. The present formulation of the living on the avails clause is, of course, much broader. Indeed, it embraces a set of relationships which include some at least which are not characterized by violence of its threat. … It extends from the most deplorable professional and thoroughly violent individual who exploits in every way a single prostitute or a group of prostitutes, to husbands or lovers, who, while they benefit from the prostitution of their partners, do not subject them to force or threat thereof. … The point here is not to deflect attention from the totally unacceptable nature of parasitic pimping … It is to suggest that the present provision is so broadly drawn that it embraces relationships which, it may be said, do not deserve the attention of the criminal law.604

239. Though the recommendations issued by the Fraser Committee after two years of research and public hearings were intended to be implemented as a cohesive whole in order to be effective, the formal government response dealt almost exclusively with the Badgley Committee’s recommendations on child prostitution and exploitation. The only amendment pertaining to adult prostitution proposed by the government came in the form of Bill C-49, which

603 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154(B), p. 21056. 604 Ibid., p. 21061.

118 of 243 replaced the s.195.1 soliciting offence with a “communicating” offence. This new provision carried increased penalties and expanded the criminal definition of solicitation to include any and all attempts by one individual to communicate with another for the purpose of engaging in prostitution.

240. Introduced by the Minister of Justice in November 1985, Bill C-49 was the subject of several hearings and debates in the House of Commons before it was brought into effect. During a hearing of the Legislative Committee on Bill C-49 on November 7th, 1985, Minister of Justice John Crosbie expressed great certainty that the new provision would resolve the problem of street solicitation and its accompanying effects on communities:

I have said that no witness has questioned the fact that this bill will in fact control the problems to which the bill is addressed. … The bill is addressed to the problem of street soliciting. It is not addressed to the whole social problem of prostitution. And not a witness that I know of has questioned the fact that it will resolve the problem of street soliciting.605

241. This confidence was not shared by other members of the legislative committee, including David Berger (MP for Laurier-Ste-Marie, QC), Svend Robinson (MP for Burnaby, BC) and Lucie Pepin (MP for Outremont, QC). Ms. Pepin and Mr. Robinson both expressed concern that Bill C-49 did not address any of the recommendation made just months earlier by the Fraser Committee. When questioned as to why the government was not addressing the Committee’s findings in the bill, Mr. Crosbie offered the following explanation:

As I have said before, the complicated, social problem of prostitution and pornography, these issues are going to be dealt with in the new year, following our consultations across the country as the result of the Badgley and Fraser report. Next year, 1986, you or a similar committee will hopefully be dealing with suggested legislation in this whole area.606

242. When challenged further by Ms. Pepin, who suggested that Mr. Crosbie relied on elements of the Badgley and Fraser reports interchangeably and “only when it [suited] his purpose”607 to promote Bill C-49, the Minister of Justice further explained his reasoning for supporting the bill:

605 Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-49, Application Record, Vol. 73, Tab 155(I), p. 21713. 606 Ibid., p. 21713. 607 Ibid., p. 21739.

119 of 243 I am not relying on the Fraser commission; I am relying on good common sense and the demands of the people across this country who want this problem dealt with, that is what I am relying on.608

243. Despite Mr. Crosbie’s assurances that the recommendations of the Fraser Committee would be adequately addressed at a later date, Mr. Robinson asked the legislative committee to reconsider passing any bill that failed to consider the findings of the Fraser Committee:

I think that as a committee we have to ask ourselves a more fundamental question. What is the responsible and appropriate answer to the recommendations of the Fraser commission in this area? The Fraser commission rejected the approach which was taken by this government. It recommended not just acting on street soliciting, because if you just act on street soliciting and if you sweep the streets clean and go to bed at night thinking you have dealt with the problem, you are conning Canadians.609 244. In particular, Mr. Robinson expressed concern that the new Criminal Code provision would push sex workers off the street, but allow them no viable opportunity to work safely indoors:

The Fraser commission, which heard extensive evidence on this point, said that we should decriminalize prostitution, remove the criminal sanctions, and take a look at our bawdy house laws. It recommended we should ensure that, if we do sweep the streets clean, there is an alternative place for adult prostitutes to work. Mr. Chairman, this fundamental recommendation has been completely ignored by this government. It will still be illegal, after this bill has passed, for a prostitute to work discreetly out of her own home. It will still be illegal for a prostitute to in any way, even discreetly, solicit for purposes of prostitution in a night club or a restaurant or a bar.610

245. This concern over the effects of moving sex workers off the streets, but not indoors, was reinforced by Ms. Pepin:

Because we will not see the prostitutes, violence will certainly increase…. All studies show that violence will increase, after passage of such a bill, and I cannot accept your argument.611

246. Despite the reservations of several Members of Parliament, Bill C-49 moved to the Senate. During the second reading on November 28, 1985 Senator Finlay McDonald echoed the

608 Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-49, Application Record, Vol. 73, Tab 155(I), p. 21740. 609 Ibid., p. 21745. 610 Ibid., p. 21746. 611 Ibid., p. 21754.

120 of 243 Minister of Justice’s confidence as to the effectiveness of the proposed Criminal Code provision in addressing street solicitation:

This bill will do what it is intended to do. Make no bones that it is limited in its scope. It is not intended to deal with the entire problem of prostitution. It is not intended to address its root causes, be they social or be they economic; it is only intended to deal with the pervasive, increasingly alarming form of prostitution, that is, the buying and selling of sex in public.612

247. Other Senators disagreed with both Mr. Crosbie and Mr. McDonald. Senator P. Derek Lewis also addressed the Senate during the second reading:

… the present bill, which has been described by some as a ‘legislative sledge hammer’, goes too far. Whilst the proposed legislation may, in the short run, reduce for a time the numbers involved in street prostitution in some areas, pushed into a much worse situation. It must be remembered that, at present, prostitution is not illegal in Canada. If the present bill is to work it will have the effect of pushing prostitutes further into the hands of pimps, procurers and other criminal elements. The present bill raises some serious questions for all citizens, as it may have adverse consequences for the rights and liberties of all.613

248. Mr. Lewis also questioned who would take responsibility for the failure of the proposed provision, if it did not effectively solve the problem of street soliciting:

… it appears that the government has, under pressure, acted hastily and without due consideration for all of the ramifications … This bill may be mistaken, and I suggest that it will be proved so in reality. If that is so, who will answer for the consequences?614

249. After the Senate readings, Bill C-49 was referred to the Standing Senate Committee on Legal and Constitutional Affairs. During a hearing of the Committee on December 3rd, 1985, the Minister of Justice was asked to address concerns that Bil C-49 to increase the risks faced by sex workers. Mr. Crosbie delivered the following reply:

I do not think that the risks are any greater on or off the streets. I think that this is a dangerous occupation to be engaged in, in any event, whether one is one the street or off or whether you attract your customer on the street or in some other way. Once you make contact with the customer, you are always taking a great

612 Debates of the Senate, Application Record, Vol. 73, Tab 155(K), p. 21775. 613 Ibid., p. 21776. 614 Ibid., p. 21778.

121 of 243 risk, and that is an occupational hazard. However, I do not think that this bill increases the hazard.615

250. On December 18th, 1985 the Chairman of the Senate Committee, Joan Neiman, delivered their report and relayed concern for the government’s selective approach to addressing the recommendations of the Fraser Committee:

In presenting this bill, the Minister of Justice has made frequent reference to the fact that the Special Committee on Pornography and Prostitution (the “Fraser Committee”) had recommended the enactment of a similar offence in its report of April 1985. But that Committee also made a series of other recommendations, dealing with modification of other areas of the criminal law (such as the bawdy house provisions and the procuring offences in the Criminal Code) which would go a considerable way to decriminalizing certain aspects of prostitution. The Fraser Committee also stressed that its recommendations should be considered as a unified whole, and should not be dealt with on a piecemeal basis. However, the Minister has indicated that Bill C-49 is a first step to deal with an urgent problem, and that further amendments concerning prostitution will be forthcoming in the new year. We welcome this pledge by the Minister, and would urge that the other amendments be brought forward as soon as is practically possible.616

251. Based on the Senate Committee’s belief that further legislation addressing the Fraser Committee’s recommendations would soon be forthcoming, the Senate Committee on Legal and Constitutional Affairs approved Bill C-49, and it was brought into effect on December 28th, 1985, subject to a three-year review of the provision’s effectiveness.

252. In the years between Bill C-49’s implementation of s.213 (the “communicating law”) and its three-year review, the federal government brought forth no additional legislation directed at adult prostitution, and did not address the rest of the Fraser Committee’s recommendations again. Instead, as part of the mandatory review of Bill C-49, a series of site studies in five Canadian cities – Toronto, Vancouver, Montreal, Calgary and Halifax – were conducted to determine whether street prostitution had been reduced under the new Criminal Code provision. Additional research was also conducted in London, Niagara Falls, Regina, Winnipeg, Ottawa, Quebec City and Trois-Rivieres. These studies incorporated interview with a variety of citizens involved in and affected by street prostitution, including sex workers, customers, pimps, police

615 Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Vol. 73, Tab 155(L), p. 21790. 616 Report of the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-49, Application Record, Vol. 73, Tab 155(N), p. 21806

122 of 243 officers, social workers, Crown attorneys, defense lawyers, judges, business people and community residents.

253. The results of this research were published in individual reports and later compiled in a synthesis report titled “Street Prostitution: Assessing the Impact of the Law”, release in July 1989 by the Department of Justice. The report found little evidence of positive changes in any of the cities surveyed. Instead, interviews conducted for the study revealed an apparent increase in violence against sex workers:

Although some police forces felt that their ability to arrest customers helped “weed out” some of the more dangerous individuals, some prostitutes believed the legislation made their lives more difficult. They commented that customers were fewer and they were consequently less choosy. Vancouver and Calgary were cited as cities where violence between customers and prostitutes escalated. According to many prostitutes, area restrictions – aimed at removing them from the main prostitution trolls – simply forced them to work in more isolation, increasing the danger to them.617

254. Though some government and law enforcement officials expressed the belief that Bill C- 49 had been at least somewhat successful in reducing street solicitation, an analysis of all available information led researchers to a different conclusion:

Perhaps the clearest conclusion of this evaluation is that police enforcement of the new s.195.1 did not suppress the street prostitution trade in most cities. The main effect was to move street prostitutes from one downtown area to another, thereby displacing the problem.618

255. Despite the negative findings contained within the Synthesis Report, the report of the Standing Committee on Justice and the Solicitor General concerning the three-year review of s.213 did not make any proposals for significant amendment to the Criminal Code, other than to further broaden the scope of s.213 through increased measures to convict customers. Relying on recent judgments of the Supreme Court of Canada, the Standing Committee reaffirmed the constitutionality of the communicating law:

617 Street Prostitution: Assessing the Impact of the Law – Synthesis Report, Application Record, Vol. 75, Tab 157, p. 22353 618Ibid., p. 22368.

123 of 243 Once the Supreme Court of Canada had upheld the constitutionality of s.213, a number of important issues were resolved, and the parameters within which the Committee could conduct its review were clarified.619

256. In response to the Standing Committee’s report, the federal government made no mention of any possible repeal or amendment of the s.213, concluding that more research was needed before any provisions to meet the needs of sex workers could take place:

The government recognizes the complexity of the issue of street soliciting. More work will have to be done with interested parties in order to address their concerns.620

257. Though s.213 remained part of the Criminal Code, research continued to be published indicating the provision was both ineffective and dangerous to sex workers. In 1994, the Solicitor General and the Department of Justice funded a field study of sex workers in Calgary and Winnipeg. The study examined homicide and violent crime statistics, key criminal cases, as well as newspaper coverage of prostitution in Calgary. In addition, interviews were conducted with sex workers, police officers, Crown attorneys, defense counsel and social workers in both cities. In the formal report, the head researcher Augustine Brannigan explained the impetus behind conducting an additional study:

The rationale for this investigation arises at least in part from concerns voiced by stakeholders and advocacy groups that changes created by the anti- communication law may have made prostitution a more dangerous business for the sellers. Since the law outlaws simple communication in public for the purposes of prostitution, it has been suggested that to escape surveillance prostitutes might be pressured to work in more remote locations and might be less careful in screening potential dates. In addition, the increased liability of arrest might make the prostitutes more dependent on exploitative pimps for protection in order to work, and subject to violence and coercion to ensure continued dependency. As a consequence, the suppression of street communication might increase the exposure of sellers to dangerous Johns and pimps and might further entrench them in the street trade.621

258. The findings of the field study reflected many of the same conclusions drawn by earlier reports. Street sex workers were singled out as particular vulnerable members of the sex industry:

619 Report of the Standing Committee on Justice and the Solicitor General concerning the three-year review of section 213 of the Criminal Code, Application Record, Vol. 78, Tab 158(I), p. 23426. 620 Government Response, Application Record, Vol. 78, Tab 158(J), p. 23460. 621 Victimization of Prostitutes in Calgary and Winnipeg, Application Record, Vol. 8, Tab 34(D), p. IX of report.

124 of 243 There is ample evidence that many of the customers of prostitutes are predatory males who have a penchant for hurting women. Street prostitutes constitute one of the most vulnerable groups because of their high levels of exposure to strangers in situations where provisions for safety are minimal.622

259. In contrast, an examination of escort services in the city found no indication of the type of coercion so often associated with increased incidences of violence:

In terms of the question of violence against prostitutes, it is noteworthy that there is no evidence that escorts are pimped and forced to prostitute against their will.623

260. With regards to the effects s.213 the study reached a similar conclusion as the earlier Synthesis report, finding the provision merely displaced sex workers to more remote and thusly more dangerous locations:

This section, along with all the other laws designed to suppress prostitution, simply make the buying and selling of sex a comparatively underground activity. The secrecy of the trade not only shields prostitution from public view but provides a cover for violence against prostitutes which would be more likely to be detected and deterred if the activities operated completely in the open.624

261. At the same time as the release of the Calgary/Winnipeg field study, the Federal/Provincial/Territorial Working Group on Prostitution, established in 1992, began consultations in preparation for a formal report on youth and street prostitution. These consultations took place across Canada and, similar to previous studies, included representatives from citizens’ groups, justice officials, municipal and provincial officials, current and former sex workers, aboriginal groups, women’s advocates, community service providers, clergy, educators, and child welfare and health workers.

262. Four years later, in December 1998, the Working Group released its formal report. The report identified harm reduction for communities and violence prevention for sex workers as the two major objectives that ought to be the focus of any government initiatives pertaining to street prostitution, while acknowledging that these objectives appear to conflict with each other:

Reducing the harm associated with street prostitution requires a decrease in the visibility of prostitution-related activities. Generally, this amounts to the

622 Victimization of Prostitutes in Calgary and Winnipeg, Application Record, Vol. 8, Tab 34(D), p. 2172. 623 Ibid., p. 2148. 624 Ibid., p. 2175.

125 of 243 displacement of prostitution-related activities to less visible and more remote areas, and this could increase the risk of violence to prostitutes.625

263. Though the Working Group considered a wide range of approaches, the formal report identified indoor sex work in particular as a possible strategy that could simultaneously address both objectives:

Results of the research and the consultations suggest that the two objectives of harm reduction and violence prevention could most likely occur if prostitution was conducted indoors. Indoor establishments appear to provide some protection to prostitutes as well as decreasing the level of street prostitution and its associated harm.626

264. Similar to the findings of several previous reports, the Working Group found s.213 to have been ineffective in reducing the problems of street solicitation:

There is ample evidence that, since 1985, large numbers of arrests of street prostitutes and customers have had little impact on levels of street prostitution. Rather, enforcement has simply displaced street prostitutes from one area to another. In addition, the costs of enforcing the communicating provision have been onerous for municipalities strapped for money.… [Current research] suggests that the illegal status of prostitution activities, especially those that occur in public or on the street, has contributed to a large amount of violence. The reasons for this were discussed previously and include the anonymity and isolation associated with street prostitution. Violent acts have increased since enforcement of the 1985 street prostitution law.627

265. In order to address the ineffective nature of Canada’s prostitution laws, the Working Group found merit in revisiting the recommendations made by the Fraser Committee thirteen years earlier:

The Working Group recognizes that the reform of the bawdy-house provisions as was recommended by the Fraser Committee in 1985 could have some benefit both in terms of making the law consistent as well as in reducing certain problems associated with street prostitution - especially those of damage to neighbourhoods and violence against prostitutes. This could involve the selective decriminalization of certain offences, with regulatory power resting with interested municipalities.628

625 Intergovernmental Working Group Report, Application Record, Vol. 79, Tab 160, p. 23899. 626 Ibid., p. 23899. 627 Ibid., p. 23927. 628 Ibid., p. 23930.

126 of 243 266. At the end of their report, the Working Group issued nineteen recommendations related to prostitution. Believing the persistent problems of street prostitution could be most effectively addressed through changes to the bawdy house provision, three of the Working Group’s recommendations advocated careful, selective consideration of regulatory measures for indoor work:

That the bawdy-house provisions of the Criminal Code, which target indoor prostitution, not be totally repealed.

That interested municipal and provincial governments undertake discussions with each other and with the federal government regarding the option of giving municipalities more regulatory authority in relation to bawdy-houses in order to address the problems posed by street prostitution, particularly the hazards posed to residents, the involvement of youth in prostitution and the dangers to prostitutes themselves. In particular, consideration could be given to the reform of s. 210 of the Criminal Code to allow one or two prostitutes operating out of their own residence where municipalities believed that the hazards and dangers of street prostitution warranted such measures. Review of s. 213 would be required to ensure that this provision is consistent with any reform to s. 210.

That any strategy for decriminalization of indoor prostitution be done on the basis of an amendment structured similarly to s. 207 of the Criminal Code, that is, at the option of the government of a province, to allow for flexibility according to the local situation.629

267. Though the Working Group had intended for their recommendations to result in definitive changes to the Canadian government’s approach to the problems associated with prostitution, no legislation was brought forward in response to their formal report. Instead, five years would pass before an Order of the House of Commons led the Standing Committee on Justice and Human Rights to established a Subcommittee on Solicitation Laws in Canada on May 6th, 2003.

268. Charged with reviewing “the solicitation laws in order to improve the safety of sex-trade workers and communities overall, and to recommend changes that will reduce the exploitation of and violence against sex-trade workers”630, the Subcommittee reviewed relevant literature and heard testimony from approximately 300 witnesses over the course of several months in 2005, at public and private hearings in Toronto, Ottawa, Montreal, Halifax, Edmonton, Winnipeg an

629 Intergovernmental Working Group Report, Application Record, Vol. 79, Tab 160, p. 23931. 630 Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164, p. 24910.

127 of 243 Vancouver. Repeating the strategy of several prior committees, the Subcomittee’s witness list was broad, including researchers, academics, policy experts, current and former sex workers, police officers, private citizens, and representatives from advocacy groups, government services and non-governmental organizations.

269. The Subcommittee’s formal report, released in December 2006 and titled “The Challenge of Change: A Study of Canada’s Prostitution Laws” examined the issues associated with prostitution from several different perspectives. In terms of the frequently-criticized “communicating” law in s.213 of the Criminal Code, the Subcommittee’s findings echoed not only the findings of prior reports but also the concerns expressed by Ministers of Parliament, Senators, and the Standing Committee on Legal and Constitutional Affairs:

Section 213 is the most frequently enforced of all criminal law provisions relating to prostitution. Since it was introduced in 1985, this provision has accounted for 90% of prostitution-related offences reported by the police. Yet numerous studies have shown that section 213 has not had the deterrent effect desired. It has not adequately reduced the incidence of street prostitution or even the social nuisance associated with its practice. These studies indicate that enforcement of section 213 has instead served to move prostitution activities from one place to another, and in so doing, has made those selling sexual services more vulnerable.631

270. A footnote attached to the Subcommittee’s discussion of s.213 listed in detail the prior reports whose determination of the provision’s ineffectiveness went unacknowledged by their government, and quoted the optimistic statements of 1985 Minister of Justice John Crosbie in introducing Bill C-49:

Section 213’s failure to combat street prostitution is well documented. As noted in the previous chapter, all the evaluation studies carried out by the Department of Justice in support of the Bill C-49 review process, as well as the study conducted in the mid-1990s by the Federal/Provincial/Territorial Working Group on Prostitution, found that section 213 had failed. Its enforcement has not reduced street prostitution activity or even the number of complaints by residents of Canada’s large cities. See: Department of Justice, Street Prostitution: Assessing the Impact of the Law, Ottawa, 1989; Department of Justice, Report and Recommendations in Respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities, December 1998. Yet this was the goal when section 213 was introduced. The Hon. John C. Crosbie, then Minister of Justice and Attorney General of Canada, stated as much when he tabled Bill C-49 in committee: “The customer now negotiates and consummates the deal in most

631 Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164, p. 24970.

128 of 243 cases within the privacy and security of his car. Remove that opportunity and the demand for prostitution services will be substantially diminished. When the customer knows that there is a strong possibility that he may well be arrested and charged with an offence following the passage of this legislation if he attempts this kind of transaction, I can assure you that the demand is going to fall pretty rapidly.” See: House of Commons Legislative Committee on Bill C-49, An Act to amend the Criminal Code (prostitution), Minutes of Proceedings and Evidence Issue No. 1, September 19, 1985, 1st Session, 33rd Parliament, 1984-1985.632

271. The Subcommittee’s assessment of s.212, the living on the avails offense, also matched a previous committee’s findings – in this case, the opinion of the Standing Committee on Justice and Legal Affairs twenty-four years earlier:

… section 212(1)(j) is too broad in scope since it easily encompasses everyone in the prostitute’s private and professional life. As a result, they live in constant fear that their roommates or spouses could be accused of living on the avails. The provision also encompasses their employers and security guards, 197 individuals who are essential to ensuring the prostitutes’ safety. … Although numerous courts, including the Supreme Court of Canada in R. v. Downey, have ruled that for a conviction under section 212(1)(j), the person accused of living on the avails of a prostitute must have undertaken a form of parasitic living, the rebuttable presumption contained in section 212(3) makes the significant potential for overbroad interpretation by the charging officer or the court still a cause for fear among those in prostitutes’ lives.633

272. The subcommittee had difficulty reaching consensus on the issue of criminal justice reform, though they were able to issue seven recommendations dealing primarily with issues such as provision of social services and further research. While the four political parties represented on the Subcommittee could not agree on specific changes, they all believed Canada’s current, ineffective approach to prostitution must not remain unchanged:

The Subcommittee had a mandate seeking to improve the safety of individuals selling sexual services and communities overall. After reviewing the criminal laws pertaining to prostitution with that mandate in mind, members agree that the status quo is unacceptable. The social and legal framework pertaining to adult prostitution does not effectively prevent and address prostitution or the exploitation and abuse occurring in prostitution, nor does it prevent or address harms to communities. This framework must therefore be reformed or reinforced. This view reflects the position of the vast majority of witnesses who appeared

632 Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164, p. 24970. 633 Ibid., p. 24966.

129 of 243 before the Subcommittee, as well as the conclusions of the major studies on prostitution conducted over the last 20 years.634

273. In addition to their unanimous recommendations, the majority of the Subcommittee – excluding representatives from the Conservative party – delivered a separate judgment with their own recommendation for greater federal funding to support social services for sex workers. Believing the prostitution in Canada “is above all a public health issue”,635 the majority stressed the need for the federal government to “meet the needs of individuals engaged in prostitution with respect to their health and safety”.636 While the majority of the Subcommittee believed communities affected by street prostitution deserved adequate measures aimed at harm reduction, they advocated a balanced approach that did not criminalize those sex workers and customers whose activities occur without causing public disruption:

Members from the Liberal, New Democratic, and Bloc Québécois Parties are of the view that sexual activities between consenting adults that do not harm others, whether or not payment is involved, should not be prohibited by the state. They feel that it is essential to strike a balance between the safety of those selling sexual services — without judging them — and the right of all citizens to live in peace and safety. In order to ensure that both individuals selling sexual services and communities are protected from violence, exploitation and nuisance, the majority of the Subcommittee urges reliance on Criminal Code provisions of general application targeting various forms of exploitation and nuisance, such as public disturbance, indecent exhibition, coercion, sexual assault, trafficking in persons, extortion, kidnapping, etc. The approach proposed by these members is premised on the idea that it is preferable to concentrate our efforts on combating exploitation and violence in the context of prostitution, rather than criminalizing consenting adults who engage in sexual activities for money.637

274. In their conclusion, representatives from the Liberal, New Democratic and Bloc Quebecois parties urged the country to undertake an ongoing process of law reform that would seriously consider amendments to the Criminal Code:

… [we] believe that Canada’s current quasi-legal approach to prostitution — in which adult prostitution is legal per se, but nearly impossible to practise without breaking the law — should be recognized as contradictory. Much like the conclusion reached by the Fraser Committee 20 years ago, they feel that since adult prostitution is legal in Canada, the conditions under which it can be

634 Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164, p. 24994. 635 Ibid., p. 24997. 636 Ibid., p. 24997. 637 Ibid., p. 24998.

130 of 243 practised must be stipulated. Moreover, after hearing the testimony, they came to the conclusion that the current situation causes more harm than good. It marginalizes prostitutes, often leaving them isolated and afraid to report abuse and violence to law enforcement authorities. In the view of members from the Liberal and New Democratic Parties, the Canadian government must come to terms with this contradiction and the inefficiency of the law, and engage in a process of law reform that will consider changes to laws pertaining to prostitution, thus allowing criminal sanctions to focus on harmful situations.638

275. In their formal response to the Subcommittee, the federal government echoed the minority opinion of the Conservative members, dismissing all of the Subcommittee’s majority recommendations and reasserting their own view of prostitution:

This Government views prostitution as degrading and dehumanizing, often committed and controlled by coercive individuals against those who are frequently powerless to protect themselves from abuse and exploitation. Prostitution harms all of Canadian society, and Canadian women in particular. This Government condemns any conduct that results in exploitation or abuse, and accordingly does not support any reforms, such as decriminalization … For these reasons, this Government continues to address prostitution by focusing on reducing its prevalence.639

4. The Evidence Presented by the Attorney General (Canada)

A. Introduction

276. In paragraph 21 of the Overview to this Memorandum of Fact and Law, the Applicants submitted that much of the evidence tendered by the Crown is not directly relevant, or responsive to the constitutional issues raised in the case at bar. The evidence tendered by the Crown relating to the operation of prostitution laws in other jurisdictions (Australia, New Zealand, Nevada, Germany and Holland) is relevant and important for the application of the test of “reasonable limits in a free and democratic society” under s.1 of the Charter; these international developments will be discussed in the next section of this Memorandum. However, it is submitted that a large proportion of the remaining evidence tendered by the Crown does not assist the court in addressing the question of whether the law prevents or prohibits sex trade workers from conducting lawful business in a safe working environment. In particular, the Crown has tendered a great deal of evidence pertaining to “trafficking” of sex trade workers and

638 Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164, p. 24997. 639 Government Response to the Sixth Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164(A), p. 25031.

131 of 243 the horrors of child prostitution. It is unclear how this evidence is relevant to the issues raised by this challenge as the Applicants have not challenged any of the extant Criminal Code provisions which specifically criminalize acts of “trafficking” and child prostitution, and the question of safe, legal options for adult, domestic sex workers cannot be answered by chronicling the obvious horrors that arise when children and immigrants are coerced into participating in the sex trade.

277. It is submitted that a careful review of the evidence tendered by the Crown, both experiential and expert, will show that a common theme underlies their response to the question of whether indoor prostitution constitutes a safer option than street prostitution. Detective Constable Ramos of the Vancouver Police Department testified that in hypothetical world he could conceive of “a regime where indoor prostitution could be run that would be safe for the John and the prostitutes”, but he did not believe this was a realistic scenario because he also believes that “prostitution is a form of slavery”.640 In a similar vein, the title of a 2005 article by Melissa Farley is “Prostitution Harms Women Even if Indoors”,641 and Janice Raymond subscribes to the belief that “all prostitution is exploitation, regardless of consent”.642 Professor Richard Poulin asserts in his affidavit that “violence is inherent to prostitution, notwithstanding any legal framework around it”;643 in his cross-examination it becomes clear that this statement can only be understood in the context of his broad and unique definition of violence: “The systemic relationship of power involving a domination over the other. This form of domination is violence in itself.”644

278. In terms of expert opinion, the work of Melissa Farley and Janice Raymond has had a significant influence on other experts called by the Crown,645 especially with respect to Melissa

640 Cross-examination of Oscar Ramos, Application Record, Vol. 36, Tab 87, pp. 10430-10432. 641 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14225-14226, para. 11. 642 An Introduction to CATW, Coalition Against Trafficking in Women (CATW) website, http://www.catwinternational.org/about/index.php, 2008, Application Record, Vol. 54, Tab 117(A), pp.15931-15934 643 Affidavit of Richard Poulin, Vol. 40, Tab 102, p. 11387, para. 25. 644 Cross-Examination of Richard Poulin, Application Record, Vol. 43, Tab 105, p. 12445 ll. 3-8, p. 12453 l. 23 – p. 12457 l. 8. 645 Affidavit of Richard Poulin, Application Record, Vol. 40, Tab 102, pp. 11389-11391, 11398, 11400, 11407, 11417, 11427, 11434-11435, paras. 22, 31, 35, 53, 75, 99, 121, 137; Richard Poulin. “La mondialisation des industries du sexe – Prostitution, pornographie, traite des femmes et des enfants”, (2004), Chapter 1, Application Record, Vol. 40, Tab 102(B), p. 11462, 11468; Richard Poulin, Enfances dévastées: L’enfer de la prostitution, tome 1 (Ottawa: L’Interligne, 2007), Application Record, Vol. 40, Tab 102(C), pp. 11505, 11583, 11590, 11601, 11603- 11604, 11634, 11641; Richard Poulin, La mondialisation des industries du sexe, Application Record, Vol. 40, Tab 102(D), pp. 11642, 11646; Richard Poulin, “Chapter Seven: Globalization of the Sex Industry, Violence and

132 of 243 Farley’s claim of “emotional violence” and the overwhelming presence of post-traumatic disorder across the sex trade. In fact, these two witnesses have made concerted efforts to influence the development of public policy respecting prostitution in international jurisdictions, and a review of the following statements made by elected officials in legislative assemblies in three jurisdictions (New Zealand, Western Australia and Scotland) provides sufficient cause for concern in accepting some, or all, of their evidence tendered in the case at bar:

1. Legislative Assembly of Western Australia, September 20, 2007, John Hyde, Parliamentary Secretary to the Attorney General:

Raymond said in 2003 that legalisation and/or decriminalisation of prostitution is allegedly a gift to pimps, traffickers and the sex industry. The reality is that Australia does not have a culture of pimps involved in the sex industry [where it is legal]. ... Another of Raymond’s claims is that legalisation and/or decriminalisation of prostitution and the sex industry promotes sex trafficking. There is actually no evidence in Australia that the sex industry has increased in jurisdictions with either a legalised or decriminalized sex industry. In fact, New Zealand and Australia have a low incidence of sex trafficking. Raymond also claims that legalisation and/or decriminalisation of prostitution does not control the sex industry; it expands it. The reality is that the size of the Australian sex industry has not expanded in the states and territories that have decriminalized or legalised the sex industry. ... Raymond [claims] that legalisation and/or decriminalisation or prostitution does not promote women’s health. Nothing could be further from the truth. Most studies in Australia have shown that sex workers enjoyed better sexual health than the general community and much lower rates of HIV-AIDS and sexually transmitted diseases. ... Another claim is that legalisation and/or decriminalisation of prostitution increases clandestine, hidden, illegal and street prostitution. New Zealand is the only country that has used the decriminalised model that we are adapting in WA – it created a good example of the outcomes of decriminalisation. The only authoritative study of New Zealand has shown that in its early stages there has been no increase in the number of street-based sex workers since the decriminalisation of the sex industry. Another of Raymond’s claims is that legalisation and/or decriminalisation of prostitution

Commodification of Human Beings”, Roadblocks to Equality: Women Challenging Boundaries, Application Record, Vol. 45, Tab 105(U), pp. 13102-13103, 13109, 13112-11313; Cross-Examination of Alexis Kennedy, Application Record, Vol. 46, Tab 108, p. 13395 l. 9 – p. 13396 l. 4; Alexis Kennedy, et. al., “Child Maltreatment; Routes of Recruitment: Pimps’ Techniques and Other Circumstances That Lead to Street Prostitution”, Journal of Aggression, Maltreatment & Trauma, Vol. 15, No. 2, 2007, Application Record, Vol. 46, Tab 107(B), pp. 13271- 13272; Alexis Kennedy, “Traumatic Stress in Prostitutes”, Journal of Trauma Practice, Vol. 3, No. 1, 2004, Application Record, Vol. 46, Tab 108(A), pp. 13463, 13466, 13472-13473; Alexis Kennedy, “Dissociation and Sexual Trauma”, Journal of Trauma & Dissociation, Vol. 2, No. 2, 2001, Application Record, Vol. 46, Tab 108(B), p. 13485; Cross-Examination of Mary Sullivan, Application Record, Vol. 54, Tab 117, p. 15758 l. 18 – p. 15761 l. 4, p. 15773, l. 21 – p. 15774 l. 7; Mary Lucille Sullivan, Excerpts from “Making Sex Work” A Failed Experiment with legalized Prostitution”, Spinifex Press, 2007, Application Record, Vol. 52, Tab 114(4), pp. 15161-15162, 15169-15170, 15172, 15188-15189.

133 of 243 increases the demand for prostitution. She says it boosts the motivation of men to buy women for sex in a much wider and more permissible range of socially acceptable settings. Again, that is wrong.646

2. Scottish Parliament, May 2, 2008 (re: M. Farley’s Publication, “Challenging Man’s Demand for Prostitution in Scotland”)

S3M-1799# Sandra White: Challenging Man’s Demand for Prostitution in Scotland – That the Parliament welcomes the publication of the report, Challenging Man’s Demand for Prostitution in Scotland, a collaboration between the women’s Support Project in Glasgow and US organisation, Prostitute Research and Education; notes with concern the evidence that men who use prostitutes regularly are more likely to regard other women as “objects” and the link between using prostitutes and sexual violence against women, and believes that the evidence presented in the report will serve to inform and shape the debate and future direction of prostitution in Scotland.

Supported by: Gil Paterson, Bill Kidd, Pauline McNeill

*S3M-1799.1 Margo MacDonald: Challenging Man’s Demand for Prostitution in Scotland – As an amendment to motion (S3M-1799) in the name of Sandra White, leave out “welcomes” to end and insert “deplores the publication of the report, Challenging Man’s Demand for Prostitution in Scotland, as it lacks academic merit, is based on material gathered after payments to respondents, is guilty of bias leading to foolish conclusions and presents the public with a simplistic view of a highly complex subject; notes the outrage expressed by 16 distinguished academic who have joined Dr Jane Scoular, Reader in Law at the University of Strathclyde, in utterly condemning the report, and notes that the academics believe that “this research violates fundamental principles of human research ethics in that there is no evidence of any benefit to the population studied...It seems highly unlikely that the participants were ever informed of the true nature of the research, which could well have influenced their response. This sort of research is dangerous”.647

3. New Zealand Parliament, 11 June 2003

GEORGINA BEYER (NZ Labour—Wairarapa): I will begin my speech on the Prostitution Reform Bill today by telling the Committee that 2 or 3 weeks ago I had a grave crisis of conscience over this bill and was seriously considering changing my support for it. I was persuaded somewhat by a meeting I had with a Dr. Melissa Farley, who is reputed to have provided research on the matter of prostitution. She apparently interviewed about 46 prostitutes particularly in Auckland and Wellington. While I disagreed with her at the time, I took time

646 Answers to Undertakings Given at the Cross-Examination of Ronald Weitzer, Application Record, vol. 32, Tab 66, p. 9441. 647 Scottish Parliament – Business Bulletin: Section F – Motions and Amendments, 2 May 2008, Application Record, Vol. 30, Tab 64(H), pp. 8689-8690.

134 of 243 afterwards to consider what she and I had debated. I also went for a walk down memory lane to visit the old haunts, so to speak, to remind myself why I was supporting this bill. When I reflected upon some of the violence and unpleasantness that occurs in this industry, I began to ask myself if I was doing the right thing in supporting this bill, and very nearly changed to not supporting it. But today I have gone back to my original feelings about the bill, because I have been reliably informed about the research of D. Melissa Farley, and now question its credibility. As members might have done, I have received not only the preliminary report she produced, but also the questionnaire answered by those prostitutes.

I was visited by a lady by the name of Colleen Winn, who was briefly employed by Dr. Melissa Farley while she was in New Zealand doing this research. Her employment ceased very quickly, because she suddenly discovered that she had a number of concerns that she could not possibly continue working with. I would like to enlighten the Committee about that, because I know some members have been using Dr. Farley’s research in their speeches against this bill. I would like to read extracts from a letter Ms. Winn has written to me, subsequent to a meeting I had with her last week in my constituency office. I quote: “I believe Melissa did state that Maori women were entering prostitution as young as 9 years old. Part of my position as a researcher on this study was to help collate data as I viewed the questionnaires. I did not see these figures in this study at all. However, there were two women who stated that their first sexual experience was at age 9.” Question 13 of the questionnaire reads: “How old were you when you had your first sexual experience of any kind?” I refer members to page 3 of the research I have here, where it states: “An adolescent told us that if she were out of prostitution, she would just like to be at home. She had been in prostitution since age of 9. A Maori girl, New Zealand street prostitution, 2003.” Clearly, the answer to question 13 was put across as though it were the answer to question 1. Question 1 in the questionnaire asks: “What age were you when you first started prostitution?”

I will carry on with extracts from that letter: “On the second day of my employment with Melissa Farley, I discovered that her research project had not been seen or passed by an ethics committee in New Zealand. It was at this point that I withdrew my services as researcher and terminated my employment agreement. I have read and am aware of the ethics of psychologists working in New Zealand. I know these were not adhered to.” That is of concern in relation to this research. It is interesting to note that after Colleen Winn had raised concerns that the questionnaire had not been passed by an ethics committee in New Zealand, she told me orally that on occasions some of the prostitutes were in receipt of about $20 for answering the questionnaire. That seems a little unethical to me, but the explanation was that prostitutes charge for their time.

I continue to quote from the letter: “I am aware that Melissa gave a TV interview with the Breakfast show, and quoted a statistic as being 86 percent in New Zealand.” From what I can gather, she was referring to the second paragraph on

135 of 243 page 2 of Dr. Farley’s preliminary report: “We found significant race/ethnic differences in age of entry into prostitution: 68 percent of Maori respondents entered prostitution at the age of 17 or younger.” I make that point because television is nationwide and viewed by many people, and an incorrect impression might have been given—there is a difference between 86 percent and 68 percent.

Finally, it is the opinion of Ms. Winn that this study “was not ethical, and the impact has done harm to those women and men who took part in it. It is for that reason that I am writing to the psychologists board of registration in California to lay a formal complaint regarding Melissa. I also believe that Melissa has committed an act of intentional misrepresentation of fact.” That last point was the reason Ms. Winn contacted me. She also offers to talk to anybody else who wishes to clarify further some of the matters she has raised, but she just has not had the opportunity to contact members of Parliament. She also told me that Ms. Farley’s research was funded by the Maxim Institute. I would have thought that such an august group might have been a little more considered in employing someone. At least, it should have passed questionnaires through the New Zealand ethics committee to make sure that the research adhered to all of that.

In reflecting back on my experiences, I asked myself what would be achieved if nothing happened with this bill and the status quo remained. That would simply not be good enough, so my support for the bill will continue. Issues have been raised that there would be an explosion of gang and criminal involvement etc. if the law were liberalized, but I do not think that will be the case. When something is opened up and is more public, with—for what of a better term— more State control, the last thing the criminals will want is to be engaged in that area, because it is fraught with all sorts of problems. They prefer to work underground—that way, they can keep out of sight of the laws in this country as much as possible, so I believe that there are some issues around that. I will stop there for now, but I may want to speak later. 648

B. Melissa Farley

279. Melissa Farley holds a Ph.D in counseling psychology from the University of Iowa.649 Dr. Farley is not affiliated with any university, but rather is the founder of “Prostitution Research and Education” a body dedicated to abolishing the institution of prostitution.650 Prior to her advocacy on prostitution, Dr. Farley’s focus was on pornography issues. In the 1980’s, Melissa Farley organized the “Rampage against Penthouse,” a campaign involving the destruction of

648 New Zealand Hansard, Prostitution Reform Bill – In Committee, 11 June 2003, Application Record, Vol. 51, Tab 114(W), pp. 15047-15048; See also Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14812 l. 7 – p. 14817 l. 15. 649 Curriculum Vitae of Melissa Farley, Application Record, Vol. 49, Tab 113(A). 650 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14223, para. 8; “About Prostitution Research and Education (PRE)”, http://www.prostitutionresearch.com/about_pre/000069.html, 2008, Application Record, Vol. 50, Tab 114(C).

136 of 243 copies of pornographic magazines and, in one case, burning the owner of Penthouse Magazine in effigy. During one demonstration, Dr. Farley and others entered a bookstore and ripped up magazines until they “were literally knee deep in pornography.” Over the course of the campaign, Dr. Farley was arrested thirteen times.651 Subsequently, Dr. Farley shifted her focus from pornography to prostitution.652

280. Dr. Farley’s largest study to date involved interviewing sex workers in nine countries in order to measure their experiences of violence, both physical and emotional.653 In this study, Melissa Farley concluded that 68% of subjects met clinical criteria for post-traumatic stress disorder (PTSD).654 Dr. Farley has also conducted a research study in Vancouver’s Downtown East Side, focusing on comparing first-nations and non-first-nations sex workers.655 Farley again found a high rate of PTSD in participants, as well as a large number of participants expressing a desire to exit. Dr. Farley has also studied the Nevada brothel industry in 2006,656 and johns in Scotland in 2008.657 The titles of other publications by Dr. Farley give a very clear sense of her perspective: • “Prostitution is Sexual Violence” • “‘Bad for the Body, Bad for the Heart’ Prostitution Harms Women Even if Legalized or Decriminalized” • “Prostitution Harms Women Even if Indoors”658

281. Dr. Farley’s framework for conducting research defines prostitution as a form of violence against women, and holds that it can neither be a legitimate industry, nor can women truly

651 Melissa Farley, “The Rampage Against Penthouse” Women Fighting Back Against Genocide”, excerpt, Application Record, Vol. 50, Tab 114(A), pp. 14851-14852; Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14634 l. 7 – p. 14635 l. 24. 652 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14640 ll. 6-16. 653 Melissa Farley et. al., “Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder”, The Haworth Press, 2003, Application Record, Vol. 49, Tab 113(B). 654 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14233, para. 15. 655 Melissa Farley et. al., “Prostitution in Vancouver: Violence and the Colonization of First Nations Women” (2005) 42 Transcultural Psychiatry 242, Application Record, Vol. 49, Tab 113(E) 656 Melissa Farley, Prostitution and Trafficking in Nevada: Making the Connections, Application Record, Vol. 49, Tab 113(D). 657 Melissa Farley et. al., “Challenging Men’s Demand for Prostitution in Scotland: A Research Report Based on Interviews with 110 Men Who Bought Women in Prostitution”, Women’s Support Project, 2008, Application Record, Vol. 50, Tab 113(Q). 658 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14225-14226, para. 11.

137 of 243 choose to enter it. Unlike other researchers who share this framework,659 she denies that it introduces true risk of bias into her research on the subject.660

282. In her affidavit Dr. Farley makes 31 assertions in support of her opinion.661 Ultimately, these can be summarized in the following manner: • Prostitution is a form of violence against women • Childhood abuse overwhelming precedes entry into prostitution • Prostitution causes extreme emotional distress and physical health problems for sex workers • A majority of sex workers are controlled by pimps • There is little difference in the rates of violence, broadly defined, occurring in indoor versus outdoor sex work • The overwhelming majority of sex workers wish to escape it • Legalization of prostitution does not reduce associated stigma • Legalization of prostitution does not make it safer for sex workers • Prostitution is not a choice in the ordinary sense of the word

(i) General Critique

283. Melissa Farley’s controversial work has been subject to serious criticism, including accusations of misrepresenting data, by coalitions of academics and in the Scottish662 and New Zealand663 Legislatures.

284. Citations in her affidavit supporting her assertions are often incorrect or missing, and her characterization of other scholar’s findings are misleading, selective or inaccurate.664 For example, she cites a 1998 paper by Monto and Hotaling for the proposition that “johns who purchased prostitutes at least once a week strongly endorsed rape myths.”665 However, Farley fails to make any mention of a 2001 study by the same authors of 1286 men in a diversion

659 Jody Raphael & Deborah L. Shapiro, “Violence in Indoor and Outdoor Prostitution Venues” (2004) 10 Violence Against Women 126, Application Record, Vol. 50, Tab 114(F), p. 14880. 660 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14686 l. 16 – p. 14689 l. 16. 661 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14229-14232, para. 13. 662 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14770 l. 12 – p. 14776 l. 22; Jan Maclod et. al., “A Commentary on Challenging Men’s Demand for Prostitution in Scotland: A Research Report Based on Interviews with 110 Men Who Bought Women in Prostitution” 2008, Application Record, Vol. 51, Tab 114(T). 663 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14812 l. 8 – p. 14818 l. 21. 664 Ibid., p. 14699 l. 24 – p. 14705 l. 13. 665 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14263, para. 123.

138 of 243 program after being arrested for soliciting. This study concluded that “the level of rape myth acceptance [of the participants] seems relatively low.”666 The latter study was published in Violence Against Women, a journal that Dr. Farley has herself published in.

285. When cross-examined about her sources, Farley would occasionally provide studies that she stated that she relied upon. Some of these answers raise further questions respecting the accuracy with which she represented other researchers, as the following exchange on the rates of assault and rape of sex workers illustrates:

Q. So let’s look at the next paragraph [paragraph 18]. Now we have some more figures, 90 percent and 78 percent, and no source. Is that just an omission or where is this coming from?

A. This is coming from Cunningham and Christensen in Vancouver.

Q. And Christensen and Cunningham study street prostitution. Why is it you don’t qualify the word “prostitution” with the modifier “street”?

A. Along with other researchers, I’ve realized in the course of the last 15 years that to categorize someone as only in street prostitution or only in massage parlour prostitution or only prostituting via the Internet or cell phone is probably a misperception of the institution of prostitution, which the physical location where prostitution takes place is only one small piece of information in the big picture… So while it’s accurate to say Cunningham and Christensen interviewed people who were currently prostituting on the street, it might be important to note that people don’t stay in one location to prostitute, generally speaking.

…

Q. Did you ask Cunningham if that’s their view?

A. No.

Q. And there should be a footnote to their article, correct?

A. Yes.

Q. And if it’s a footnote to their article, don’t you think you should put in the words that the researchers would be using, street prostitution, and not bringing in your interchangeability theory?

666 Martin A, Monto & Norma Hotaling, “Predictors of Rape Myth Acceptance Among Male Clients of Female Street Prostitutes”, (2001) 7 Violence Against Women 275, Application Record, Vol. 30, Tab 64(Q), p. 8851.

139 of 243 A. When I report other people’s research, I’m sure there are many things – I can’t report the whole study. This is a brief summary of the study.

Q. I understand, it’s one word.

A. And I don’t think it’s interchangeable. 667

286. Finally, Dr. Farley makes numerous assertions about the experiences of foreign jurisdictions in decriminalizing/legalizing the sex industry, yet she admits that she does not even read the government reports from those jurisdictions on the topic.668

(ii) Generalizations and Unsubstantiated Claims

287. In light of Dr. Farley’s framework of prostitution as a form of violence against women, it is not surprising that her evidence contains several absolute positions and assertions that are unsubstantiated by empirical data. For example: • “Prostitution is a gendered survival strategy that involves the assumption of unreasonable risks by the person in it;”669 • “For the person in it, prostitution is harmful to her sexuality”;670 • “The definition of the “job” of prostitution is sexual harassment and sexual exploitation”;671 • Prostitution is, by definition, a violation of human rights;672 • “prostitution amounts to men paying for a women for the right to rape her”.673

288. Professor Ronald-Frans Melchers, the Crown’s expert on research methodology was asked about the relevance of a researcher constantly making absolute and generalized political statements as part of their research study:

Q. … If there was a scholar who had extensively written on the sex trade and had said on many occasions, “prostitution is inherently violent and degrading,” years later, they turn to do empirical, qualitative research. Would you be very

667 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14701 l. 11 – p. 14703 l. 21. 668 Ibid., p. 14834 l. 11 – p. 14838 l. 9. 669 Melissa Farley et. al., “Prostitution in Vancouver: Violence and the Colonization of First Nations Women” (2005) 42 Transcultural Psychiatry 242, Application Record, Vol. 49, Tab 113(E) p. 14365. 670 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14253, para. 88 671 Ibid., p. 14262, para. 118. 672 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14640 ll. 3-5. 673 Melissa Farley, “Prostitution: The oldest use and abuse of women” Off Our Backs, May 1994, Application Record, Vol. 50, Tab 114(B), p. 14857; Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14648 l. 3 – p. 14651 l. 7.

140 of 243 much on guard in that scenario, to really look carefully to see if that person was able to leave their baggage behind, so to speak?

A. I would be as on guard.674

289. Farley makes further generalizations, for example, respecting pimps: • “Prostituted women are unrecognized victims of domestic violence by pimps”675 • All prostitutes with pimps are subject to terror and must use denial in order to survive.676 • “Pimps and traffickers control prostitutes by coercively addicting them to drugs. In a similar way, perpetrators of sexual abuse against children drug them in order to facilitate sexual attacks or to disorient and silence them.”677

However, Dr. Farley subsequently admitted that one cannot even generalize as to the frequency in which sex workers have pimps based on her research.678

290. Dr. Farley acknowledges that sex workers are a hard to reach population, which prevents researchers from making statistically valid conclusions about the general population. However, it is respectfully submitted that when one reads Dr. Farley’s evidence it appears that she has ignored this fact, regularly making generalized statements about sex workers. Examples of this include: • Asserting rates of victimization for all sex workers in the Netherlands;679 • Stating what percentage of Canadian women in the sex industry that want to escape it, based on a single study in Vancouver;680 • Stating that “The overwhelming majority of women in prostitution want to escape it, regardless of prostitution’s legal status.”681

291. In other parts of her affidavit, Dr. Farley does restrict her comments to the sex workers interviewed, rather than entire populations.682 It is submitted that the failure to note the limitations of her samples in some cases leaves an impression that her assertions in those instances accurately represent all sex workers when this is statistically impossible.

674 Cross-Examination of Ronald-Frans Melchers, Application Record, Vol. 61, Tab 124, p. 17921 ll. 11-19. 675 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14244, para. 54. 676 Ibid., pp. 14245-14246, paras. 58-59. 677 Ibid., p. 14247, para. 63. 678 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14706 l. 9 – p. 14708 l. 3. 679 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14234-14235, para. 20. 680 Ibid., p. 14259, para. 109; Melissa Farley et. al., “Prostitution in Vancouver: Violence and the Colonization of First Nations Women” (2005) 42 Transcultural Psychiatry 242, Application Record, Vol. 49, Tab 113(E), p. 14383. 681 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14259. 682 Ibid., pp. 14242, 14246, paras. 49, 61.

141 of 243 292. On several occasions Dr. Farley makes assertions in her affidavit without providing supporting evidence or explanation: • That there are common or universal tactics used by pimps to brainwash sex workers;683 • That there are high rates of disease and injury for sex workers generally;684 • That indoor locations are hubs of trafficking in persons;685 • That prostitutes in the Netherlands do not want to register as sex workers because they want to remain anonymous.686

(iii) Anecdote versus Evidence

293. Dr. Farley often supports her assertions through re-telling anecdotes told by research subjects. These stories normally involve horrific circumstances and despicable conduct by abusers. These anecdotes do constitute some qualitative data, but Dr. Farley attempts to raise these individual anecdotes to the level of common, ordinary experience. As noted by Dr. Weitzer, an expert witness called by the applicant in reply, presenting anecdotes as definitive evidence “violates most of the criteria for meaningful, serious, systemic, scientific thinking”687 and will inevitably produce “questionable findings and spurious conclusions.”688

294. It should be noted that her use of annicdotes is often employed for factual assertions that go to the heart of the case at bar. For example: • Use of anecdotes to establish a general norm of violence and danger in indoor venues;689 • Using anecdotes and misleading numbers to argue that legalization does not reduce violence;690 • Basing testimony that there was a 400% increase in organized crime in New Zealand following decriminalization from the impressions of two individuals with whom Farley had conversations.691

683 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14244-14245, para. 55. 684 Ibid., pp. 14247-14248, paras. 66-67. 685 Ibid., p. 14251, para. 80. 686 Ibid., p. 14260, para. 114. 687 Ronald, “Flawed Theory and Method in Studies of Prostitution” (2005) 11 Violence Against Women 934, Application Record, Vol. 30, Tab 64(D), p. 8604. 688 Weitzer, Ronald, “New Directions in Research on Prostitution”, (2005) 43 Crime, Law, & Social Change 211, Application Record, Vol. 30, Tab 64(B), p. 8566. 689 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14255-14257, paras. 95-101. 690 Ibid., pp. 14261-14262, paras. 117-121. 691 House of Commons, Minutes of Proceedings and Evidence of the Subcommittee on Solicitation Laws and Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, March 2005, Application Record, Vol. 50, Tab 114(G), p. 14893; Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14696 l. 13 – p. 14698 l. 10.

142 of 243 295. Despite her use of this tactic, Dr. Farley recognized that “anecdotal reports, often provided by individuals with a political agenda…are simply one person’s opinion rather than scientific findings.”692

(iv) Concerns Respecting Methodology

296. Melissa Farley asserts that she is not aware that psychology experts have questioned her sampling practices.693 However, a wide range of academics have seriously questioned Farley on methodological grounds.694

297. Three aspects of Farley’s methodology are particularly troubling. First is her extensive use of sex work “survivors” – those who had negative experiences in the industry and exited – as interviewers. Although Farley denied in cross-examination that there is anything wrong with using this group as interviewers,695 a report that she prepared recognizd the inherent dangers in doing so.696 Dr. Weitzer specifically notes that the use of victimized former sex workers is a serious source of potential bias in measuring rates of violence.697

298. The second major source of concern arises from the locations used by Dr. Farley to recruit participants. For example, recruiting participants out of service organizations that assist individuals wishing to leave the sex trade over-represents individuals who have negative opinions of the industry. It is clear from her cross-examination that she recruited virtually all

692 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14273, para. 162. 693 Ibid., p. 14267, para. 140. 694 Jan Maclod et. al., “A Commentary on Challenging Men’s Demand for Prostitution in Scotland: A Research Report Based on Interviews with 110 Men Who Bought Women in Prostitution” 2008, Application Record, Vol. 51, Tab 114(T); Ronald Weitzer, “Flawed Theory and Method in Studies of Prostitution” (2005) 11 Violence Against Women 934, Application Record, Vol. 30, Tab 64(D), p. 8596; Ronald Weitzer, “Rehashing Tired Claims About Prostitution: A Response to Farley and Raphael and Shapiro” (2005) 11 Violence Against Women 971, Application Record, Vol. 30, Tab 64(E), p. 8613. 695 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14652 ll. 9-23. 696 Melissa Farley et. al., “Challenging Men’s Demand for Prostitution in Scotland: A Research Report Based on Interviews with 110 Men Who Bought Women in Prostitution”, Women’s Support Project, 2008, Application Record, Vol. 50, Tab 113(Q), p. 14594; Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14688 l. 10 – p. 14689 l. 16. 697 Ronald Weitzer, “Flawed Theory and Method in Studies of Prostitution” (2005) 11 Violence Against Women 934, Application Record, Vol. 30, Tab 64(D), p. 8600; Ronald Weitzer, “Rehashing Tired Claims About Prostitution: A Response to Farley and Raphael and Shapiro” (2005) 11 Violence Against Women 971, Application Record, Vol. 30, Tab 64(E), p. 8614.

143 of 243 participants in the nine-country study from populations of vulnerable, impoverished and disadvantaged persons.698

299. Compounding this issue is the lack of proper comparator groups in much of Farley’s research. In order to determine whether sex workers experience higher rates of trauma than the general public, it is necessary to pair sex workers with an appropriate non-sex worker comparator group.699 It is submitted that where Dr. Farley fails to do this, her results may be misleading. In her affidavit, Dr. Farley discusses her findings that johns in Scotland have a strong acceptance of “rape myths.”700 However, the study that this information is based upon makes no comparisons of these rates against other groups,701 preventing anyone concluding whether these rates are higher, similar, or lower than those in the general population.

300. The third major methodology issue relates to Dr. Farley’s refusal to release her questionnaires for peer review. As Professor Weitzer comments in his affidavit in this proceeding:

As anyone involved in survey research knows, question-wording can make a large difference in determining the results. Failure to disclose the questions presented to respondents is just as serious as a failure to indicate how and where the respondents were located, and whether they [sic] may be any bias in either question-wording or the individuals selected for interviews.702

301. Dr. Farley justifies this non-disclosure on the basis of “[protecting] the validity of the research instrument.”703 Her position is that she will only produce her questionnaires for “qualified individuals” who request it from her directly.704 Professor Weitzer regards this as “baffling” and states that it “might be interpreted as an attempt to resist full disclosure of the research procedures.”705 Crown expert methodologist Dr. Melchers stated that if a researcher

698 Ronald Weitzer, “Flawed Theory and Method in Studies of Prostitution” (2005) 11 Violence Against Women 934, Application Record, Vol. 30, Tab 64(D), pp. 8600, 8603; Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14740 l. 19 – p. 14750 l. 3. 699 Affidavit of Ronald Weitzer, Application record, Vol. 30, Tab 64, pp. 8592-8530, para. 10. 700 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14263-14265, paras. 124-131. 701 Jan MacLeod et al., “Challenging Men’s Demand for Prostitution in Scotland: A Research Report Based on Interviews with 110 Men Who Bought Women in Prostitution”, Women’s Support Project 2008, 28 April 2008, Application record, Vol. 30, Tab 64(F), p. 8636. 702 Affidavit of Ronald Weitzer, Application record, Vol. 30, Tab 64, p. 8531, para. 12. 703 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14774 l. 19 – p. 14775 l. 22. 704 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14268, para. 141. 705 Affidavit of Ronald Weitzer, Application record, Vol. 30, Tab 64, p. 8531, para. 12.

144 of 243 were to refuse to disclose questionnaires in an attempt to evade others testing their work, this would be a serious problem and that “[they] wouldn’t be published.”706

302. Dr. Farley was reluctant to produce the questionnaire for the purposes of this proceeding. She justified her reluctance on the basis of an incident where another researcher took her instrument and inserted an extra question without her permission.707 However, Dr. Farley ultimately agreed to produce the document under a sealing order, with access restricted to the parties’ counsel.

(v) Flaws in Post-Traumatic Stress Disorder Assertions

303. A critical aspect of Melissa Farley’s position is her repeated assertion that that sex workers suffer from post-traumatic stress disorder (PTSD) in high numbers.708 This point is made most strongly in her 9-country study. The diagnoses of PTSD in Dr. Farley’s work are open to much criticism. First, the diagnostic tool that she uses to make her diagnoses, while having diagnostic utility, is not recommended for use for clinical diagnosis by the International Society for Traumatic Stress Studies, an organization that Dr. Farley has been a member of.709 Secondly, the diagnoses in question were made in ten minutes. Paul Henry De Wet, head of the Forensic Psychiatry section at Weskoppies Hospital, South Africa, has criticized Farley’s PTSD work in this respect before the South African Constitutional Court. With respect to the ten minute time-frame, he stated that “PTSD simply cannot be diagnosed in this manner,”710 and that a proper diagnosis normally involves a three-hour psychological examination.711 Tellingly, when

706 Cross-Examination of Ronald-Frans Melchers, Application Record, Vol. 61, Tab 124, p. 17917 l. 25 – p. 17918 l. 14. 707 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14737 l. 10 – p. 14740 l. 7, p. 14846 l. 21 – p. 14847 l. 20. 708 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14238-14239, 14257-14258, paras. 33-35, 102-103; Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14731 l. 14 – p. 14732 l. 17. 709 Post Traumatic Stress Disorder Checklist (PCL), International Society for Traumatic Stress Studies (ISTSS), Trauma Resources: Media Resources, http://www.istss.org/org/resources/PCL.cfm, 2008, Application Record, Vol. 51, Tab 114(O); Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14668 ll. 8-10, p. 14752 l. 14 – p. 14753 l. 15. 710 Supporting Answering Affidavit of Paul Henry De Wet in Ellen Jordan, Louisa Johanna Francina Broodryk, Christine Louise Jacobs v. The State, Constitutional Court of South Africa, Application record, Vol. 31, Tab 64(V), p. 8966, para. 17. 711 Ibid., p. 8967, para. 19.

145 of 243 Dr. Farley asserts that the rate of PTSD in sex work is similar to that affecting victims of spousal abuse or torture, she cites studies that used protocols that took hours or days, not minutes.712

304. Dr. Ine Vanwesenbeeck, Research Manager at the Rutgers Nisso Groep in Holland, conducted studies that reached significantly different results with respect to the incidence of PTSD in sex workers. Vanwesenbeeck specifically pointed out this discrepancy, and posited the explanation that Farley’s research did not effectively target indoor sex workers.713

305. Dr. Farley claims a direct causal link between sex work and PTSD. On cross- examination, she admitted problems with this position. The locations where subjects were recruited, documented drug use and head trauma all served as confounding variables that could skew her results.714 Farley also admitted fundamental statistical problems with claiming causality.715

(vi) Indoor versus Outdoor Sex Work

306. Melissa Farley’s affidavit discusses the distinction between indoor and outdoor work, and it is submitted that her discussion on this critical issue shows the same deficiencies as other unsupported evidence that she puts forward. For example, she asserts that indoor locations are used to traffic persons,716 that sex workers can be controlled indoors by pimps in ways that they cannot be outside,717 and even that indoor work may increase the risk of violence towards sex workers,718 all without stating the basis for these positions. When questioned about this, she often struggled to identify a concrete source. The evasive manner in which Dr. Farley addressed the substance behind her indoor/outdoor assertions is best captured by the following exchange during cross-examination:

Q. When you were asked to be part of this case, you were aware that one of the biggest issues in this case is the indoor/outdoor distinction. You’re aware of that.

712 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14759 l. 14 – p. 14765 l. 21. 713 Ine Vanwesenbeeck, “Burnout Among Female Indoor Sex Workers”, Archives of Sexual Behavior, Vol. 24, No. 6, 2005, Application Record, Vol. 51, Tab 114(K), p. 14964. 714 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14740 l. 19 – p. 14750 l. 3. 715 Ibid., p. 14756 l. 12 – p. 14758 l. 23. 716 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14251, para. 80. 717 Ibid., p. 14251, para. 81. 718 Ibid., p. 15251, para. 79.

146 of 243 A. I am aware that there are a number of – I mean, here’s how I would put it. I’m aware that there is – let me think of how I’d put that.

Q. Let me put it to you very specifically. You’re aware that we’re trying to strike out the bawdy house provision, correct? You must have been advised of the nature of this case, were you not?

A. I haven’t been told the legal details of the case.

Q. You were shown affidavits in this case, you respond to Lowman.

A. Yes.

Q. And every affidavit ends by saying: I make this affidavit in support of an application to strike out three sections.

A. Yes.

Q. So you knew we were knocking out the bawdy house law, correct?

A. Yes, I would say so.

Q. So you’re telling me that when you come to the critical issue in our case, indoor/outdoor, you just didn’t really feel like putting in footnotes. Is that what you’re telling me?

A. No.

Q. Let’s take an example, paragraph 81. When you say: “Women and children can be controlled in indoor prostitution in ways that they can not be controlled on the street,” that’s a statement of opinion. That doesn’t come from any study, correct?

A. No.

Q. I’m sorry, no, it doesn’t come from a study.

A. That’s incorrect. It comes from two articles that I wrote that are attached as exhibits.

Q. And what’s the study? If you want to tell us the articles and we’ll look for the study, but what’s the study that said women and children are controlled indoors? It may make sense, but I’m saying, is that a statement of opinion or is that based on a study?

147 of 243 A. I would say that it’s not based on a specific study, it’s based on a number of studies and my review of the literature and my speaking with trafficking victims, with children in prostitution over a number of years.719

307. On this critical issue of the indoor/outdoor distinction, Dr. Farley occasionally relies upon specific studies, but distorts their findings to suit her purposes. In her affidavit she asserts that the difference between violence in indoor and outdoor settings is “minimal.”720 In support of this position, she cites a study showing a rate of victimization for outdoor workers of 81% and of 48% for indoor workers. In cross-examination, Farley explained her statement by noting that a 48% violence rate was still unacceptable, and that the distinction between indoor and outdoor work is blurry.721 It is submitted that this explanation is a far cry from her affidavit evidence that there is a negligible difference between the two.

308. Furthermore Dr. Farley refers to the 48% statistic as representing “frequent and severe” violence.722 Neither term appears in the study that she cites in support. Dr. Farley claims that “severe” is justified based on the nature of violence reported in the study, which ranged from rape to slapping.723 The assertion that 48% reported “frequent” violence is even more inaccurate. The study itself explains that the number represents participants who had “ever experienced client violence”724 with no mention of frequency.

309. Ultimately, the very study that Farley relies on to base her claims that the indoor/outdoor distinction is irrelevant reaches the opposite conclusion.725

310. Dr. Farley’s own research has been criticized for not reflecting on the largely street-based samples she employs, but rather using her data to perpetuate ontological arguments on the nature of all prostitution.726

719 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14716 l. 1 – p. 14717 l. 23. 720 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14255, paras. 93-94. 721 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14821 l. 17 – p. 14822 l. 21, p. 14825 ll. 7-11. 722 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, p. 14255, para. 94. 723 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14720 l. 12 – p. 14723 l. 23. 724 Church, Stephanie et. al., “Violence by clients towards female prostitutes in different work settings: questionnaire survey” (2001) 322 BMJ 524, Application Record, Vol. 51, Tab 114(J), p. 14953. 725 Ibid., p. 14953. 726 Ine Vanwesenbeeck, “Another Decade of Social Scientific Work on Sex Work: A Review of Research 1990- 2000” (2001) 12 Annual Review of Sex Research 242, Application record, Vol. 30, Tab 64(I), p. 8718.

148 of 243 C. Janice Raymond

311. Janice Raymond works as a Professor Emerita at the University of Massachusetts, Amherst.727 Since 1972, Ms. Raymond has taught Women’s Studies and Medical Ethics at a number of colleges and universities.728 Between 1994 and 2007, she acted as Co-Executive Director of the Coalition Against Trafficking in Women, International (“CATW”), an organization which advocates against decriminalizing prostitution.729 From her work with CATW, the affiant concludes: (a) that sex trafficking and prostitution are inextricably linked; (b) that prostitution is a form of violence against women, and that decriminalization of prostitution promotes sex trafficking and expands the sex industry; and (c) that the growth of the sex industry strengthens organized crime and promotes child prostitution.730

312. One of the primary goals of CATW is to dismantle the sex industry and abolish the institution of prostitution, or what Ms. Raymond terms “the most demeaning job in the world”.731 On its website, CATW states “all prostitution is exploitation, regardless of consent”.732 During a 2004 hearing on “The Impact of the Sex Industry in the E.U.” before the European Parliament, the affiant contended that once prostitution is decriminalized, it becomes normalized, accepted, and legitimated by the State.733 In her seminar, “the Effects of Legalization of Prostitution Activities: A Critical Analysis,”734 Ms. Raymond states, “in any of these legalized or regulated systems that recognize the sex industry as a legitimate enterprise, the State effectively becomes another pimp, living off the earnings of women in prostitution…State- sponsored prostitution is a form of state-sponsored sexual terrorism posing as sexual and

727 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, p. 16036. 728 Ibid., p. 16036. 729 Ibid., p. 16037. 730 Ibid., p. 16041. 731 Raymond, Janice G., “Testimony before the European Parliament, Public Hearing on ‘The Impact of the Sex Industry in the E.U.,’ Committee on Women’s Rights and Equal Opportunities”, European Parliament, January 19, 2004, Application Record, Vol. 55, Tab 119(B), pp. 16088-16093 732 An Introduction to CATW, Coalition Against Trafficking in Women (CATW) website, http://www.catwinternational.org/about/index.php, 2008, Application Record, Vol. 54, Tab 117(A), pp. 15931- 15934. 733 Raymond, Janice G., “Testimony before the European Parliament, Public Hearing on ‘The Impact of the Sex Industry in the E.U.,’ Committee on Women’s Rights and Equal Opportunities”, European Parliament, January 19, 2004, Application Record, Vol. 55, Tab 119(B), pp. 16088-16093. 734 Raymond, Janice G., Keynote speech: “State-Sponsored Prostitution and Its Effects on Trafficking”, Seminar on the Effects of Legalisation of Prostitution Activities—a Critical Analysis, November 2002, Application Record, Vol. 55, Tab 119(C), p. 16095-16101.

149 of 243 economic freedom for women”. The affiant believes “when legal barriers disappear, so too do the social and ethical barriers to treating women as sexual merchandise.735

313. In April 2005, Ms. Raymond testified before the Subcommittee on Solicitation Laws in Ottawa regarding theoretical solutions to combat violence against prostitutes. She claims tactics such as the registration of sex workers represent “old and repressive measures that keep women in prostitution rather than assisting them to get out.736 Ms. Raymond contends that “it is not the ‘work conditions’ of women in prostitution, and the laws designed to suppress prostitution, that make women in the sex industry most vulnerable. It is the construction of prostitution itself, especially under decriminalized conditions, in which women are treated as sexual commodities, and where buyers, mostly men, are allowed to purchase women for use as sexual instruments”.737

314. Ms. Raymond believes all forms of prostitution constitute a violation of women’s rights and are violence against women. Further, she contends that “any alleged distinctions between street and indoor prostitution are illusory”.738 Accordingly, “the violence that women are subject to in prostitution is an intrinsic part of the sexual exploitation, no matter where it occurs…”.739 In her Seminar on the Effects of Legalization of Prostitution Activities—a Critical Analysis, Ms. Raymond assimilates prostitution with the historical legacy of slavery: “some of the same issues that we are now debating in the prostitution context were historically debated in the African slavery context in Western countries. For example, rather than abolish the system of slavery, there were those who seriously proposed to regulate slavery as a state-sponsored “economic sector”.740

315. Ms. Raymond conducted two major studies in her career examining the health consequences of prostitution and human trafficking on women. The affiant’s first study, completed in 2001, investigates sex trafficking of women in the United States to determine “the

735 Raymond, Janice G., “Ten Reasons for Not Legalizing Prostitution and a Legal Response to the Demand for Prostitution”, The Haworth Press, 2003, Application Record, Vol. 56, Tab 119 (H), pp. 16519-16537. 736 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, pp. 16042-16043. 737 Ibid., pp. 16055-16056. 738 Ibid., p. 16043. 739 Ibid., pp. 16043-16044. 740 Raymond, Janice G., Keynote speech: “State-Sponsored Prostitution and Its Effects on Trafficking”, Seminar on the Effects of Legalisation of Prostiuttion Activities—a Critical Analysis, November 2002, Application Record, Vol. 55, Tab 119(C), p. 16097.

150 of 243 consequences in terms of violence, crime, health, and other human costs”.741 Researchers interviewed 40 women with experience in the sex industry (15 who entered the U.S. as adults), 32 law enforcement officials, 43 social service providers, community advocates and researchers, and 13 health care providers.742 In selecting appropriate interviews, “target sampling was used, in which individuals with knowledge (or likely to have knowledge) on trafficking and the sex industry were interviewed. The goal was to gather information from the most informed experts on the topic, not do a broad survey of knowledge and attitudes”.743 The results indicate that once these women were in the business, “they were controlled by various methods, including isolation, drug addiction, and threats.744 The women suffered severe health consequences including injuries caused by violence and diseases contracted while in the sex industry”.745

316. In 2002, Ms. Raymond was the principle investigator of a 5-country comparative study on women trafficked for sexual exploitation and the health effects of sex trafficking.746 Looking at trends in Indonesia, the Philippines, Thailand, Venezuela, and the United States, the report documented the health effects of trafficking and prostitution on 146 women in the migration process.747 The study used a non-random sampling method as well as a “snow-ball” sampling method--“previously interviewed women who then provide subsequent contacts within their networks of women who were subjected to having been trafficked”.748 Researchers conduced oral interviews with women who had been trafficked and exploited in the sex industry.749 Including both open and closed-ended questions, “the questionnaire was designed to elicit

741 Selected Summaries: “Sex Trafficking of Women in the United States: International and Domestic Trends”, The Research Review, Vol. No. 3, November 2001, Application Record, Vol. 55, Tab 119 (F), pp. 16256-16273 742 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, pp.16048, 16063 743 Raymond, Janice G., and Hughes, Donna M., “Sex Trafficking of Women in the United States: International and Domestic Trends”, Coalition Against Trafficking in Women, March 2001, Application Record, Vol. 55, Tab 119(E), p. 16142. 744 Raymond, Janice G., “Ten Reasons for Not Legalizing Prostitution and a Legal Response to the Demand for Prostitution”, The Haworth Press, 2003, Application Record, Vol. 56, Tab 119 (H), pp. 16519-16537 745 Selected Summaries: “Sex Trafficking of Women in the United States: International and Domestic Trends”, The Research Review, Vol. No. 3, November 2001, Application Record, Vol. 55, Tab 119 (F), pp. 16256-16273 746 Raymond, Janice G. et. al., “A Comparative Study of Women Trafficked in the Migration Process: Patterns, Profiles and Health Consequences of Sexual Exploitation in Five Countries (Indonesia, the Philippines, Thailand, Venezuela, and the United States)”, 2002, Application Record, Vol. 56, Tab119(G), p. 16288. 747 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab119, p. 16048 748 Raymond, Janice G. et. al., “A Comparative Study of Women Trafficked in the Migration Process: Patterns, Profiles and Health Consequences of Sexual Exploitation in Five Countries (Indonesia, the Philippines, Thailand, Venezuela, and the United States)”, 2002, Application Record, Vol. 56, Tab119(G), p. 16289. 749 Ibid., p. 16288.

151 of 243 information about the backgrounds of trafficked women…”.750 The study indicates that “a significant number of both women who have been internationally trafficked, as well as those who are in local prostitution industries, endure similar kinds of violence and suffer similar and multiple health effects from the violence and sexual exploitation.”751

317. When reading Ms. Raymond’s evidence, the following points should be kept in mind:

A. Ms. Raymond admits that the indoor/outdoor distinction was not a primary research area in either of her studies.752 She acknowledges that the last section of her affidavit, On- Street vs. Off-Street Prostitution was specifically added to her report for the case.753 Ms. Raymond has only recently focused on the difference between indoor and outdoor prostitution and has done no empirical research on the topic. At para. 79 of her affidavit, the affiant states that in the two studies she researched, the majority of women interviewed “did not distinguish between on-street and off-street venues in reporting levels of violence, threats, and control to which they had been subjected”.754 Ms. Raymond fails to mention that these women were never asked about levels of violence in indoor vs. outdoor settings.755

B. Ms. Raymond states that violence in indoor and outdoor prostitution is quite homogenous.756 She uses information from Transcrime to support this assertion but does not mention the fact that the report only looks at trafficked women, individuals “who started their career being exploited”.757 Moreover, she does not include from Transcrime that with respect to trafficked women, “the level of violence will be highest in the primary sector of the trade, so if your trade is primarily indoors, the violence will be higher indoors”.758 Most trafficked women operate indoors. Ms. Raymond also states at para. 78 of her affidavit that in some countries, such as Austria and Spain, the level of

750 Raymond, Janice G. et. al., “A Comparative Study of Women Trafficked in the Migration Process: Patterns, Profiles and Health Consequences of Sexual Exploitation in Five Countries (Indonesia, the Philippines, Thailand, Venezuela, and the United States)”, 2002, Application Record, Vol. 56, Tab119(G), p. 16288. 751 Selected Summaries: “Sex Trafficking of Women in the United States: International and Domestic Trends”, The Research Review, Vol. No. 3, November 2001, Application Record, Vol. 55, Tab 119 (F), pp. 16256-16273 752 Cross-examination of Janice Raymond, Application Record, Vol. 60 Tab 120 p.17588. 753 Ibid., p.17598. 754 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, p. 16066. 755 Cross-Examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17588. 756 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, p. 16049. 757 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17582. 758 Ibid., p. 17582.

152 of 243 indoor violence is greater than outdoor violence.759 She does not mention the fact that 90% of the prostitution market in Spain is indoors and that 75% if the prostitution market in Austria is indoors.760

C. Ms. Raymond agrees that before she undertook her two major research studies she held a strong opinion about the relative merits of legalization/decriminalization.761 In one article that she wrote before she did any empirical research, Ms. Raymond contends “the regulationist system has been a failure…”.762

D. Ms. Raymond holds strong political beliefs. She is opposed to transsexual surgery, pornography, surrogate motherhood, and egg donation.763 She is quoted as saying that ‘[surrogate motherhood] is effectively creating a whole new traffic in women’.764 She gets this evidence based on one incident of a clinic in the U.S talking about bringing poor women in from Mexico to make money as surrogates and another story she heard about a baby trafficker in the United States.765

E. In the witness’s first study766, she does not include legalization/decriminalization among the most influential factors leading to sex trafficking. She also does not list legalization/decriminalization as an influential factor in the incidence of trafficking in her second study.767 Therefore it appears that her assertion that legalization leads to an increase in sex trafficking is not based on any empirical research.768

F. In compiling her research, Ms. Raymond spoke with exiting groups for people who wanted to leave the profession but never spoke with a group that supported the trade.769

759 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, p. 16066. 760 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17584. 761 Ibid., p. 17500. 762 Raymond, Janice G., Keynote speech: “State-Sponsored Prostitution and Its Effects on Trafficking”, Seminar on the Effects of Legalisation of Prostitution Activities—a Critical Analysis, November 2002, Application Record, Vol. 55, Tab 119(C), pp. 16094-16101. 763 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, pp. 17504-17509. 764 Ibid., p. 17505. 765 Ibid., pp. 17506-17508. 766 Raymond, Janice G. and Hughes, Donna M., “Sex Trafficking of Women in the United States: International and Domestic Trends”, Coalition Against Trafficking in Women, March 2001, Application Record, Vol. 55, Tab 119(E) pp. 16115-16255. 767 Raymond, Janice G. et. al., “A Comparative Study of Women Trafficked in the Migration Process: Patterns, Profiles and Health Consequences of Sexual Exploitation in Five Countries (Indonesia, the Philippines, Thailand, Venezuela, and the United States)”, 2002, Application Record, Vol. 56, Tab 119 (G), pp.16274-16518. 768 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17517. 769 Ibid., p. 17522.

153 of 243 Further, she only interviewed women who entered prostitution from abused and vulnerable situations.770 In her research, Ms. Raymond studied only former prostitutes or prostitutes who were having difficulties and problems working in the profession.771

G. The witness admits her assertion that “male demand is a primary factor in the expansion of the sex industry772 is not based on any empirical research. Ms. Raymond does not interview male buyers in either of her two studies; her conclusions are based on other people’s opinions about buyers.773 The witness also acknowledges that she generated conclusions on buyers based on Internet sex sites.774 In her articles, Ms. Raymond champions the Swedish model (which is punitive toward buyers) without actually studying male demand.

H. In discussing the situation in Sweden,775 Ms. Raymond contends that there has been no substantial increase in trafficking because the legal regime is tough on buyers and that buyers fear being arrested.776 Yet, Sweden only fines buyers, and Ms. Raymond does not speak about incarceration or particularly harsh penalties for johns. She indicates that the men “fear visibility much more than the penalties”777 though she never suggests how fines lead to exposure or “visibility” such that potential buyers would be deterred from participating in the sex trade. The witness also acknowledges that both the U.S. and Canada sanctions buyers in the same way as Sweden and that in some U.S. jurisdictions, judges publically shame johns. Nevertheless, she estimates that 20-30 thousand women are trafficked into the U.S.778, into an environment which criminalizes and shames buyers. The United States has a major problem with trafficking women and yet it is known as a very punitive regime.

770 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17579. 771 Ibid., p. 17581. 772 Raymond, Janice G., “Prostitution on Demand: Legalising the Buyers as Sexual Consumers”, Vol. 60, Tab 120(H), pp. 17636-17667. 773 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17533. 774 Ibid., p. 17536. 775 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, p. 16061. 776 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17566. 777 Ibid., p. 17567. 778 House of Commons, Minutes of Proceedings and Evidence of the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Issue No. 21 (4 April 2005), Vol. 84, Tab 164(Y), p. 25678.

154 of 243 I. The witness also states in her affidavit that Finland and Denmark have higher numbers of traffickers than Sweden779, yet Finland and Denmark both prohibit brothels.780

J. Ms. Raymond references one article written by Suzanne Daley from the New York Times, to support the proposition that “some members of [the Dutch] Parliament who originally supported the legalization of brothels on the grounds that this would liberate women are now seeing that legalization actually reinforces the oppression of women”.781 During her cross-examination, Ms. Raymond admits that the statement “some members of Parliament” doesn’t emerge from the cite to which she refers; Daley only discusses one member of Parliament.782

K. During her cross-examination, Ms. Raymond also admits that she drew the conclusion herself that “most of them are women from other countries were probably trafficked into the Netherlands…”.783 She bases this statement on an admittedly “loose interpretation” of Daley, who never claims the women in question were trafficked.784

L. The witness again relies on Daley to support her assertion that the sex industry accounts for 5% of the Netherlands economy and has expanded 25% percent with legalization.785 Ms. Raymond admits she has not seen the author’s original data or done any work to determine where and how Daley arrives at those figures.786

D. Richard Poulin

318. Richard Poulin is a professor of Sociology at the University of Ottawa. He holds a Ph.D. in sociology from the Université de Montréal.787 His research focuses on prostitution, human trafficking and pornography, including the intersection of globalization and the sex trade.788

779 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, p. 16063. 780 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17571. 781 Daley, Suzanne, “New Rights for Dutch Prostitutes, but No Gain”, New York Times nytimes.com, August 12, 2001, Application Record, Vol. 60, Tab 120(B). 782 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, pp. 17494-17495. 783 Raymond, Janice, Ten Reasons for Not Legalizing Prostitution and a Legal Response to the Demand for Prostitution, Application Record, Vol. 56, Tab 119(H), p. 16523. 784 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17496. 785 Seminar on the Effects of Legalisation of Prostitution Activities—a Critical Analysis, Application Record, Vol. 55, Tab 119(C), p. 16098. 786 Cross-examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17493. 787 Curriculum Vitae of Richard Poulin, Application Record, Vol. 40, Tab 102(A). 788 Affidavit of Richard Poulin, Application Record, Vol. 40, Tab 102, p. 11380, paras. 3-4.

155 of 243 Much of his written work focuses on pornography and children.789 The majority of Professor Poulin’s work on prostitutes consists of analysis of other scholars’ research. He has also conducted full interviews with 25 exotic dancers and with a French service organization. He has also had lengthy unstructured conversations with a number of sex workers.790

319. Professor Poulin has testified before both the Sub-Committee on Solicitation Laws and the Standing Committee on the Status of Women.791 Professor Poulin is involved in a number of non-governmental organizations designed to abolish prostitution,792 including the Coalition Against Trafficking in Women – Asia Pacific (CATW-AP),793 a branch of the organization that Crown Witness Janice Raymond headed between 1994 and 2007.794

320. Professor Poulin believes that “violence is inherent to prostitution, notwithstanding any legal framework around it,”795 and “no matter how prostitution occurs.”796 He believes that “for most, becoming a prostitute is not he result of a free decision or a rational and enlightened choice.”797 However, he also agrees that displacing sex work into isolated areas, far from public view, increases the danger to sex workers and limits their ability to seek assistance when needed.798

321. Professor Poulin believes that decriminalization will not make the practice of sex work safer, because it does not change the “essential violence” of sex work. While he cites no authority for this, he believes that legalization “legitimizes domination of one sex over another” and that “clients [would] enjoy greater impunity as a result of the increased social indifference” legalization would bring.799 He also makes the much broader assertion that “The decriminalization of prostitution would have harmful consequences on all relations between men

789 Affidavit of Richard Poulin, Application Record, Vol. 40, Tab 102, pp. 11381-11382, paras. 7-9. 790 Cross-Examination of Richard Poulin, Application Record, Vol. 43, Tab 105, p. 12355 l. 17 – p. 12358 l. 9. 791 Affidavit of Richard Poulin, Application Record, Vol. 40, Tab 102, p. 11383, para. 13. 792 Cross-Examination of Richard Poulin, Application Record, Vol. 43, Tab 105, p. 12350 ll. 6-11. 793 Affidavit of Richard Poulin, Application Record, Vol. 40, Tab 102, pp. 11384-11385, para. 18. 794 Affidavit of Janice Raymond, Application Record, Vol. 55, Tab 119, p. 16037, paras. 5-6. 795 Affidavit of Richard Poulin, Application Record, Vol. 40, Tab 102, p. 11387, para. 25. 796 Ibid., p. 11393, para. 41. 797 Ibid., p. 11389, para. 29. 798 Ibid., p. 11394, para. 44. 799 Ibid., p. 11403, paras. 65-66.

156 of 243 and women in Canada. It would lead to a “prostitutionalization” of the social fabric and human relations…”800

322. When considering the evidence of Professor Poulin, it is important to keep in mind the following facts that emerged during his cross-examination:

A. Professor Poulin asserts that indoor prostitution is not necessarily less violent than outdoor work. However, it is critical to understand his definition of ‘violence’: “The systemic relationship of power involving a domination over the other. This form of domination is violence in itself.”801 He stated that an insulting cross-examination would meet his definition of violence.802 It is submitted that this broad definition of violence explains Professor Poulin’s assertion at paragraph 65 of his affidavit that legalization will not make the sex industry safer.803 To him, no system of sex work can be safe because a sex worker is “still merchandise for the purpose of the pleasures of the males.”804

B. Professor Poulin admits that none of the sources that he relies upon for discussing violence in the sex industry in Canada look at indoor sex work. While he states that he has conducted informal unstructured interviews with indoor workers, Professor Poulin stated that he could not produce any documents on these interviews.805

C. Professor Poulin admits that some number of sex workers genuinely choose to enter the industry, and that “nobody” know what this proportion is.806

D. While Professor Poulin discusses various issues related to psychology and psychiatry in his affidavit, he had no formal training in these disciplines. Professor Poulin relies on the work of Melissa Farley, describing her work as “very significant”;807 While he initially identified a Status of Women report as corroborating a statistic from Farley that he

800 Affidavit of Richard Poulin, Application Record, Vol. 40, Tab 102, p. 11433, para. 135. 801 Cross-Examination of Richard Poulin, Application Record, Vol. 43, Tab 105, p. 12445 ll. 3-8, p. 12453 l. 23 – p. 12457 l. 8. 802 Ibid., p. 12446 l. 19 – p. 12447 l. 5. 803 Ibid., p. 12476 l. 18 – p. 12477 l. 4. 804 Ibid., p. 12423 l. 24 – p. 12424 l. 14. 805 Ibid., p. 12448 l. 10 – p. 12449 l. 21, p. 12464 ll. 4-16. 806 Ibid., p. 12342 l. 15 – p. 12343 l. 17. 807 Ibid., p. 12337 ll. 15-24.

157 of 243 included in his affidavit,808 He later acknowledged that the report obtained its data from Farley as well.809

E. Professor Poulin indicates that he is skeptical of reports of sex workers who are content with their jobs, relying on anecdotes to the contrary. He asserted that “there is a major bias” with studies that demonstrate a measure of contentment and well being with sex workers. Professor Poulin had no special suspicion of negative reports from sex workers, other than that he is “always skeptical with everything I hear.”810

F. When asserting that entry into sex work is not a real choice in Canada, Professor Poulin relies on experiences within impoverished countries like the Dominican Republic, and interviews with prostitution abolitionist movements in foreign states. Professor Poulin recognizes that these groups could be biased in reporting information.811

G. Professor Poulin agreed that in the United States, serial killers regularly targeted outdoor sex workers due in part to the fact that their work location made them easy targets.812

H. To rebut the assertion from Professor Leyton that he has never heard about a serial killed preying on indoor sex workers, Professor Poulin refers to killings by three serial killers. Nothing in his affidavit shows that any of them killed at an indoor sex work venue.813 In subsequent undertakings Professor Poulin admitted that he had no information as to where any of the victims were killed, but only that one victim of one killer was found dead in her personal apartment in France.814

I. At paragraph 47 of his affidavit, Professor Poulin asserts that a serial rapist in the United State had been attacking sex workers in massage parlors. The citation for this assertion contains no information about the location of the attacks.815 Ultimately Professor Poulin

808 Cross-Examination of Richard Poulin, Application Record, Vol. 43, Tab 105, p. 12387 l. 20 – p. 12388 l. 21. 809 Ibid., p. 12442 ll. 3-22; Plamondon, Ginette et. al., “La prostitution: Profession ou exploitation? Une reflexion a poursuivre”, Recherche du Conseil du statut de la femme, May 2002, Application record, Vol. 45, Tab 105(T), p. 13080. 810 Cross-Examination of Richard Poulin, Application Record, Vol. 43, Tab 105, p. 12364 l. 8 – p. 12367 l. 19 811 Ibid., p. 12381 l. 21 – p. 12383 l. 6. 812 Ibid., p. 12438 ll. 6-22. 813 Ibid., p. 12432 l. 8 – p. 12636 l. 8. 814 Undertakings provided by Richard Poulin, Supplementary Application Record, Vol. 1, Tab 175, pp. 26405- 26406. 815 Cross-Examination of Richard Poulin, Application Record, Vol. 43, Tab 105, p. 12429 l. 18 – p. 12431 l. 6; “Nab Serious Bad Guy in Rape” Daily News March 7, 2008, Application Record, Vol. 45, Tab 105(R), p. 13071.

158 of 243 admitted that his assertion was incorrect: the only evidence provided was that the individual attacked one masseuse in her personal apartment.816

J. Professor Poulin stated at paragraph 47 of his affidavit that 5 of 14 sex workers killed in the last decade in Québec did not work on the street. The source he ultimately provided to support this assertion did not reflect his statements. It indicates only that two women were killed in their homes, one in a motel room, one in a drug dealer’s apartment, and one was found in the trunk of a car.817

K. While Professor Poulin asserts that studies indicate that 92-95% of sex workers in British Columbia want to exit the industry, he relies only on one study by Melissa Farley and Jacqueline Lynne, which focused on the atypical situation of the Downtown Lower East Side of Vancouver. He also admitted that “We don’t know the reality of the sex trade in Canada, in its entirety in Canada.”818

L. Professor Poulin makes assertions on child abuse antecedents to entrance into the sex industry at paragraph 34 of his affidavit. On cross-examination, he admitted that some of the sources were not from academic publishers, but rather from advocacy groups. Other studies contained no description of methodology, and Professor Poulin does not know whether they have ever been peer reviewed.819

M. Professor Poulin asserts at paragraph 89 of his Affidavit that studies show that 92% of human trafficking victims are trafficked for sexual purposes. He admits that this figure does not distinguish between forced and voluntary prostitution. He accepts that another study, which focused on forced prostitution, placed this figure at 43%.820

N. Professor Poulin concedes that the definition one has of trafficking will has a serious impact on trafficking statistics one produces. Professor Poulin stated that when reports

816 Answers to undertakings provided by Richard Poulin, Supplementary Application record, Vol. 1, Tab 175, p. 26404; Gendar, Alison and Rouen, Ethan, “Crime Serial rapist who preyed on prostitutes busted for masseuse assault” Daily News: New York Crime, 7 March 2008, Supplementary Application Record, Vol. 1, Tab 175(I). 817 Answers to undertakings provided by Richard Poulin, Supplementary Application record, Vol. 1, Tab 175, p. 26404; Meurtres de femmes liées aux industries du sexe, Québec, 1989-2007, Sisyphe, Supplementary Application Record, Vol. 1, Tab 175(H). 818 Cross-Examination of Richard Poulin, Application Record, Vol. 43, Tab 105, p. 12383 l. 7 – p. 12386 l. 13. 819 Ibid., p. 12388 l. 22 – p. 12395 l. 2. 820 Ibid., p. 12399 l. 1 – p. 12401 l. 4.

159 of 243 indicate that sex businesses are operated by foreigners, he assumes that they are “smugglers”.821

O. While Professor Poulin’s English affidavit states that some legal brothels in Nevada have “caged areas” that control the movement of sex workers, he subsequently stated that a more accurate translation of his original French would be “fenced-in enclosures.” Example photos provided show chain-link fences around the perimeter of brothels.822

E. Alexis Kennedy

323. Alexis Kennedy has a doctorate in Forensic Psychology and is an Assistant Professor in the Department of Criminal Justice at the University of Nevada, Las Vegas.823 Between 1996 and 1998 she conducted a research study on 43 sex workers in Vancouver, and in 1999 she was the lead research on a project dealing with johns in Vancouver.824 In paragraph 4 of her affidavit, professor Kennedy claims that her work in Vancouver involved both street and indoor workers, however, in cross-examination she acknowledges that she had not done any research work with the indoor population.825 Accordingly, her statement that indoor sex work is “an exploitative and disempowering work environment”826 is not based on any research work she has conducted. Nor does she provide any other empirical support for that proposition.

324. Dr. Kennedy states, as indicated by her research, that the majority of women engaged in street sex work in Canada did not begin working in prostitution by choice.827 According to Dr. Kennedy, “some women in street prostitution choose not to work indoors for a number of reasons”, which include high feels required to be on call and high costs for meeting hygiene and dress requirements828. Dr. Kennedy also believes that working indoors is not a viable option for drug addicted women who find it difficult to show up for work regularly and since most women begin working in prostitution as minors, that if they allow them to work there”829. She also states

821 Ibid., p. 12406 l. 19 – p. 12409 l. 4. 822 Answers to undertakings provided by Richard Poulin, Supplementary Application Record, Vol. 1, Tab 175, pp. 26402-26403. 823 Curriculum Vitae of Alexis Kennedy, Application Record, Vol. 46, Tab 107(A), p. 13258. 824 Affidavit of Alexis Kennedy, Application Record, Vol. 46, Tab 107, p. 13240; Cross-examination of Alexis Kennedy, Application Record, Vol. 46, Tab 108, p. 13388, l.21-25, p. 13389, l.4-8. 825 Cross-examination of Alexis Kennedy, Application Record, Vol. 46, Tab 108, p. 13444, l.8-10. 826 Affidavit of Alexis Kennedy, Application Record, Vol. 46, Tab 107, p. 13249. 827 Ibid., p. 13241. 828 Ibid., p. 13255. 829 Ibid., p. 13255.

160 of 243 sex workers reported that “another form of exploitation… in indoor prostitution [is] obligatory sexual relations with the business owners” and that some sex workers left stated they left indoor venues because they could not tolerate this expectation.830 However, in cross-examination, Dr. Kennedy conceded that it would be out of her area of expertise to make any statements about whether or not an indoor legalized regime is safer than street prostitution because although she has done empirical work on the sex trade in Vancouver, she has not done research in indoor venues.831 Moreover, during cross-examination, Dr. Kennedy stated that she “hasn’t met anyone in street prostitution who isn’t being victimized” and that this statement cannot be generalized or extrapolated to indoor sex work because that is not her research area.832

325. Professor Kennedy has concluded that “women working in street prostitution in Canada experience a staggering amount of physical violence and sexual violence, both working in street prostitution and prior to entering prostitution.”833 In cross-examination however, she acknowledged that her study sample came from the “low track” of Vancouver (the same area where Pickton located victims), and that the low track represents an area where the victimization of prostitutes would be most prevalent and pronounced.834

326. Dr. Kennedy also believes that “if the bawdy house provisions are removed from the Criminal Code, many women and girls working in street prostitution will continue working on the streets and not necessarily move to indoor venues.”835 This is because indoor venues do not “necessarily eliminate the appeal of quick cash considered available through street prostitution.”836 Although Dr. Kennedy asserts this position in her affidavit, during cross- examination, she stated that her “affidavit is very much focused on the women that [she’s] interviewed in street prostitution and [she doesn’t] know how they will benefit form removal of the bawdy house laws” and she “didn’t mean to imply that [she] knows things about bawdy houses and what works and doesn’t work.”837

830 Ibid., p. 13250. 831 Cross-examination of Alexis Kennedy, Application Record, Vol. 46, Tab 108, p. 13444, l.2-10. 832 Ibid., p. 13408, l.17-22. 833 Affidavit of Alexis Kennedy, Application Record, Vol. 46, Tab 107, pp. 13241, 13245. 834 Cross-examination of Alexis Kennedy, Application Record, Vol. 46, Tab 108, p. 13423 l. 20 – p. 13424 l. 4. 835 Affidavit of Alexis Kennedy, Application Record, Vol. 46, Tab 107, p. 13255. 836 Ibid., p. 13249. 837 Cross-examination of Alexis Kennedy, Application Record, Vol. 46, Tab 108, p. 13445, l.11-15.

161 of 243 327. With respect to pimps, Dr. Kennedy says “women in prostitution report experiencing physical and emotional abuse from their pimps”838 and that the “removal of [the procuring provisions] may convey societal approval of the pimp’s current role as an exploiter and user.”839 She believes that because female sex workers often experience child and sexual abuse, that they “will have an even harder time breaking their traumatic bonds with their abusive pimps if the pimps are legitimized as lawful business men living off the earnings of others.”840 However, Dr. Kennedy provides no data to support this conclusion. In her affidavit, she also states that women experience physical and emotional abuse at the hands of their pimps. In cross-examination, she conceded that the Fraser Committee report is the most exhaustive study in Canada of the sex trade and that she agrees with the Fraser Committee’s conclusion that the majority of sex trade workers in Canada are independent operators.841

328. In addition, with respect to individuals living on the avails, Dr. Kennedy stated in cross- examination when asked if it is conceivable that someone can work for a prostitute, provide services and not exploit them that she believes “someone could work for a prostitute, assist her with security and that would not necessarily be the same thing as taking her income and living off of it”.842

329. With respect to johns, Dr. Kennedy stated that she “would not say they’re deviant. [She] would say they very much match the normal population. They’re deviant because they’re engaging in illegal activity”843. Moreover, in a newspaper article about johns in Vancouver, Dr. Kennedy was quoted to say “[w]e’ve seen every single occupation come through the school – doctors, dentists, dot-com millionaires, everything down to cooks and valet parkers” and that “the profile shows those who buy sex come from all walks of life”.844

330. Dr. Kennedy does not believe that the dangerous conditions of street sex work will be alleviated if the “solicitation provisions” are removed from the Criminal Code.845 She believes that the current risks street workers face, such as abusive pimps, abusive customers and drug

838 Affidavit of Alexis Kennedy, Application Record, Vol. 46, Tab. 107, p. 13245. 839 Ibid., p. 13255. 840 Affidavit of Alexis Kennedy, Application Record, Vol. 46, Tab. 107, p. 13255. 841 Cross-examination of Alexis Kennedy, Application Record, Vol. 46, Tab 108, p. 13412 l. 19 – p. 13413 l. 20. 842 Ibid., p. 13453, ll. 17-23. 843 Ibid., p. 13451, ll. 3-9. 844 Exhibit to the cross-examination of Alexis Kennedy, Application Record, Vol. 46, Tab 108(C), p. 13494. 845 Affidavit of Alexis Kennedy, Application Record, Vol. 46, Tab. 107, p. 13256.

162 of 243 abuse, exist separate from the criminalization of solicitation in public places846. She states that “[s]triking down the solicitation law will not reduce the risks street prostitute take when they agree to get in a car with a total stranger. Their desire to earn money, their impairment due to drug use or psychological trauma, and their acceptance of violence as a normal part of the job of street prostitution will keep drawing the women into hazardous situations.”847

5. International Developments

331. It is clear that there is a wide array of legal regimes around the world governing the sex trade. Professor Richard Poulin mentions that “the sex trade occurs in countries where prostitution is legal (e.g., Germany, certain provinces and one territory in Australia, most Lander in Austria, Greece, Hungary, USA [Nevada], New Zealand the Netherlands and Switzerland), where brothels are state-owned (Indonesia and Turkey) or where prostitution is recognized as an industry vital to the national economy (e.g., Philippines, Thailand etc.)”.848 In the following section an outline is provided for five of the regimes accompanied by evaluations of their operation. The five regimes were chosen because they represent similar political regimes, i.e. western liberal democracies, and because the Application Record contains adequate information to accurately describe these regimes and not others in existence around the globe.

A. Australia – Mary Sullivan and Professor Barbara Sullivan

332. In Australia, prostitution is considered a state issue, and the laws governing sex work vary between the eight states. While prostitution is considered legal throughout the country, indoor sex work is only legal and regulated in Queensland, New South Wales, Victoria, the Northern Territory, Tasmania and Australia’s capital territory. A brief description of each regime is as follows: • As the first state to enact legislation decriminalizing prostitution (1979), New South Wales also has the fewest restrictions on prostitution; there is no licensing scheme or regulated health standard, street prostitution is restricted only in certain areas (schools, houses, churches, hospitals), and the operation of ‘safe house’ brothels, designed to assist street sex workers in bringing clients indoors, is allowed.

846 Ibid., p. 13256. 847 Affidavit of Alexis Kennedy, Application Record, Vol. 46, Tab. 107, p. 13256. 848 Affidavit of Richard Poulin, Application Record, Vol. 40, Tab 102, p. 11415, para. 94.

163 of 243 • Though originally legalized in 1984, prostitution in Victoria is currently regulated through the 1994 Prostitution Control Act; all brothels and escort agencies employing more than two women require licenses, sex workers must undergo regular screening for sexually transmitted diseases, and soliciting and loitering for the purpose of soliciting remain illegal. • Soliciting and loitering remain illegal in the Australian Capital Territory, where legalization measures were enacted in 1992 and later amended in 2002. These measures allow for brothels, escort agencies and sole operators as long as they are formally registered and follow certain sexual health provisions such as the use of prophylactics. • In Queensland, prostitution is legal and regulated under the 1999 Prostitution Act; similar to the licensing regime in Victoria, sex workers must follow certain sexual health provisions and brothels are restricted in terms of location and advertising, while escort agencies and street sex work remain illegal. • Under the Prostitution Regulation Act of 2001, prostitution in the Northern Territory is legal only in the form of licensed and registered escort agencies or private indoor workers (who are not subject to any specific regulations), and no specific health standards are enforced. • In Tasmania, prostitution has been legalized since 2005, though this regime applies solely to individual workers. While it is not illegal to live on the avails of prostitution in Tasmania, brothels and escort agencies remain illegal, as does street solicitation. • The Prostitution Amendment Act 2008 was introduced in 2007 in Western Australia. It passed the upper house and Received Royal Assent on April 14, 2008. The Act works to deciminalize brothels and requires that they be certified/registered (with sole operators being exempt). The Act outlines qualifications pertaining to the acquisition of a certificate – these are similar to requirements under a licensing scheme. Public soliciting for the purpose of prostitution remains illegal.

333. When Queensland’s Prostitution Act was enacted in 1999, a five-year review was ordered as a condition of the legislation. This review was conducted by the state’s Crime and Misconduct Commission, which focused on “the operation of the Act and the achievement of its core

164 of 243 function (to regulate prostitution in Queensland)”.849 The Commission reviewed research conducted by the Prostitution Licensing Authority, heard 21 submissions from the public, conducted their own survey of sex workers, and observed police enforcement strategies in the cities of New Farm and Fortitude Valley. Released in 2004, the Commission’s report issued the following conclusion:

There is no doubt that Queensland now has a safe and effective legal brothel industry, albeit one that is much smaller than originally envisaged…. Queensland’s brothels provide a safe and healthy option for sex workers who choose to work in the industry and for the clients who choose to use their services.850

334. In their examination of Queensland brothels, the Crime and Misconduct Commission found several positive improvements in the wake of the state’s new legislation:

… the review has indicated that, overall, legal brothels in Queensland provide the safest and healthiest environments for sex workers and their clients… Throughout the four years since the inception of the Act, compliance with the health and safety requirements of the Act within legal brothels has been generally high; breaches have been few and generally of a minor nature. Due to the extensive probity requirements, all licenses have no past or current links with organized crime, and police corruption has been excluded from the legal industry by both the requirements of the Act and the more ethical environments… There is also no evidence of any adverse effects on community amenity by licensed brothels.851

335. The Commission provided further detail regarding their findings in a table addressing four key issues in prostitution: health and safety factors, social factors, community impacts and organized crime. Key excerpts from the table are as follows:852

CMC evaluation questions Overview of achievement to date Have procedures been implemented according Procedures have been implemented to enable to the Act to enable the issuing of brothel the issuing of brothel licenses and 14 brothels licenses? are currently operational in Queensland. This number of brothels is significantly lower, How large a regulated industry has been however, than had been projected and concerns created by the act? were raised about the regulatory approach and government oversight of the legal industry

849 “Regulating Prostitution: An Evaluation of the Prostitution Act 1999 (QLD)”, Crime and Misconduct Commission, December 2004, Application Record, Vol. 27, Tab 61(D), p. 7791. 850 “Regulating Prostitution: An Evaluation of the Prostitution Act 1999 (QLD)”, Crime and Misconduct Commission, December 2004, Application Record, Vol. 27, Tab 61(D), p. 7787. 851 Ibid., p. 7792. 852 Ibid., pp. 77925-7926.

165 of 243 Has there been a change in the number of sole As sex workers are not registered and many operators? illegal escort agencies and illegal broils falsely advertise as sole operators, there are no data available to determine the actual number of sole operators, or changes in the number of sole operators over time Has the Code of Practice for brothel The PLA has developed and implemented both management been developed and Heal and safety guidelines and an implemented? inspection/compliance regime for legal brothels. During the review, however, some Have health-and-safety control and inspection concerns were raised about both. regimes been implemented and maintained?

Have there been any positive or negative Findings suggest that legal brothels provide the health-and-safety effects on sex workers who safest and healthiest work environments for participate in illicit prostitution? sex workers. Sole operators and street-based Have there been any health-any-safety effects sex workers show high levels of poor health on sole operators? and health-compromising behaviours

336. Professor Barbara Sullivan, University of Queensland, provided a summary of the research data comparing rates of violence in outdoor and indoor settings. Her summary is as follows: • The researchers asked four questions relating to serious sexual assault ‘during sex work’. They found that the rate of attempted rape or rape ‘during sex work’ was substantially higher among street-based workers than either brothel workers or private workers. • The researchers asked about the incidence of ‘ever having been raped by a client’. They found that 33% of the street workers had been raped more than once by a client. Of the indoor workers, only 3% of the workers in legal brothels and 6.1% of the private workers had been raped more than once by a client. 97% of the brothel workers and 86.6% of the private workers said they had ‘never’ been raped by a client; 39.4% of the street workers had ‘never’ been raped by a client. • The researchers asked about the incidence of physical assault. Of the street workers interviewed, 33.3% reported being ‘bashed more than once by a client’; in comparison, only 1% of the brothel workers and 4.9% of the private workers had been bashed by clients. 98% of the brothel workers and 87.8% of the private workers reported ‘never having been bashed by a client.’ For street workers this was only 45.5%.

166 of 243 • The researchers asked the workers if they would report incidents of violence to the police: 45.5% of the street workers said they would report physical assault, while 64.3% of the brothel workers and 69.5% of the private workers said they would report physical assault. There were, however, smaller differences in the number of respondents who said they would report rape by a client to the police. 69.7% of the street workers said they would report rape by a client; 78.2% of the brothel workers and 73.2% of the private workers said they would. • In the comparison between 1991 and 2003, the researchers found “a significant increase in the number of respondents who would report rape, assault, and robbery by a client to the police.”853

337. Though the legalization of brothels in Queensland created a nearly 90% reduction in street sex workers854, the Crime and Misconduct Commission still recognized the danger faced by women still working outdoors:

It is this group…that appears to be the most socially disadvantaged, health challenged and at highest risk of abuse and assault. … more targeted social and drug diversion programs are required to enable street-based sex workers to seek safer and healthier lifestyles and alternative work environments.855

338. A second study of prostitution in the state of Queensland was conducted by the Prostitution Licensing Authority (PLA), who also released their formal report in 2004. This study consisted of four phases: a survey of sex workers, a survey of their clients, a survey of community attitudes and a survey of public health data. The research design “was built on key prostitution-related research conducted prior to the introduction of the Prostitution Act, enabling comparison with data collected before the era of licensed brothels in Queensland”.856 In addressing the wide variety of perspectives expressed in the four surveys, the PLA made the following comments:

Where sexual matters are concerned there is a perceived public interest in what others do, and some community support for legislation to constrain “unacceptable behaviour”. With regard to sexual behaviour the ‘public interest’ may be seen as

853 Affidavit of Barbara Sullivan, Application Record, Vol. 27, Tab 61, pp. 7730-7731. 854 “Regulating Prostitution: An Evaluation of the Prostitution Act 1999 (QLD)”, Crime and Misconduct Commission, December 2004, Application Record, Vol. 27, Tab 61(D), p. 7793. 855 Ibid., p. 7793. 856 Charotte Woodward et. al., “Selling Sex in Queensland 2003”, a study of prostitution in Queensland, Prostitute Licensing Authority, 2004, Application Record, Vol. 28, Tab 61(F), p. 7797.

167 of 243 synonymous with deeply held prejudices about what constitutes acceptable sexual behaviour. Despite these prejudices sex workers must be presumed to have generally available rights to a safe and healthy work environment.857

339. Comparing indoor and outdoor workers, the Prostitution Licensing Authority found that workers in legal brothels and other private venues “appeared quite satisfied with their jobs, with apparently few regretting their decision to work in [the] industry”, while street sex workers were “mostly dissatisfied”.858 Similar gaps between indoor and outdoor sex work experiences were found in the number of women who reported violence at the hands of customers, with street sex workers more than 5 times more likely to be raped multiple times by a client, and more than 7 times more likely to be beaten.859

340. In light of their findings, the Prostitution Licensing Authority came to similar conclusions as other international researchers about the dangers faced by outdoor sex workers worldwide. In their formal report, the PLA urged Australia to address these dangers regardless of outdoor sex work’s impact on surrounding communities:

While concerns about the public nuisance associated with loitering and soliciting may be real, such concerns do not obviate the need to address the occupational health and safety needs of workers in the industry.860

341. As one of the expert witnesses for the Attorney General of Canada, Dr. Mary Sullivan contributed an affidavit wherein she presents her opinion on the Australian government’s legalization and decriminalization of prostitution. Dr. M. Sullivan draws very different conclusions than those of various studies commissioned by the Australian government, including the two studies of sex work in Queensland. Feeling that the state’s 1999 Prostitution Act “must be recognized as a failed social and legal experiment”,861 Dr. M. Sullivan asserts that Australia’s efforts at regulation have not resulted in “any corresponding improvement in the health, safety or economic well-being of those involved in the prostitution business”.862

342. Given the Crime and Misconduct Commission’s finding that nearly 90% of street sex workers in Queensland had left that dangerous environment, with some moving to safer,

857 Ibid., p. 8001. 858 Charotte Woodward et. al., “Selling Sex in Queensland 2003”, a study of prostitution in Queensland, Prostitute Licensing Authority, 2004, Application Record, Vol. 28, Tab 61(F), p. 8005. 859 Ibid., p. 8038. 860 Ibid., p. 8048. 861 Affidavit of Mary Sullivan, Application Record, Vol. 52, Tab 116, p. 15085. 862 Ibid., p. 15085.

168 of 243 healthier indoor locations, Dr. M. Sullivan’s position does not appear to take into account much of the Australian government’s own research into its legislative regime. The discrepancies between Dr. M. Sullivan’s negative findings for the Victoria regime, in contrast to the government’s positive findings for the Queensland regime, is puzzling in light of Dr. M. Sullivan’s acknowledgement “that Queensland is probably the most similar in terms of structure to Victoria.”863

343. Within her affidavit, Dr. M. Sullivan also makes the following assertions about the Australian sex industry post-legalization: • there has been a retention of organized crime involvement; • there has not been a reduction in sex trafficking; • there has not been a reduction of child prostitution; • increased demand for prostitution services has worsened problems of sex trafficking and child prostitution in Australia; • there has not been a reduction in violence toward sex workers; and • there has been no additional health protection for prostitution workers.864

344. While these assertions are applied to Australia as a whole, Dr. M. Sullivan has not undertaken any in-depth study of prostitution in any state other than Victoria.865 Though Dr. M. Sullivan believes she possess “an expertise [she] developed in one state which [she has] been able to apply to other states”866, factual inaccuracies in some of her statements pertaining to the operation of prostitution in Australia’s other states suggest she is not fully familiar with these legislative regimes. Dr. M. Sullivan describes Western Australia as using a decriminalized model for prostitution regulation, and bases this classification on her understanding that there is “no requirement to [brothel] licensing”867 in the state and, specifically, no requirement of police checks for operators. This statement directly contradicts the actual legislation enacted by the state, wherein annual certification includes a criminal record check of owners, and indoor

863 Cross-Examination of Mary Sullivan, Application Record, Vol. 54, Tab 117, p. 15792 ll. 18-20. 864 Affidavit of Mary Sullivan, Application Record, Vol. 52, Tab 116, p. 15085. 865 Ibid., p. 15788. 866 Ibid., p. 15789. 867 Ibid., p. 15797.

169 of 243 establishments are subject to additional random police checks.868 Dr. M. Sullivan also makes inaccurate statements about the date of New South Wales’ decriminalization of prostitution; citing the Disorderly Houses Amendment Act 1995 as the legislation which “abolished adverse laws which prohibited both brothels and street prostitution”,869 Dr. M. Sullivan does not appear to be aware of the state’s earlier statutes, the Prostitution Act 1979 and the Prostitution Amendment Act 1983, which actually removed the prohibition against sex work decades earlier.

345. Beyond the inaccuracies of law present in her affidavit and cross-examination, Dr. M. Sullivan’s research sources do not always meet a sufficient standard of academic rigour. When discussing the issue of human trafficking in her affidavit, Dr. M. Sullivan relies on a “study” conducted by Victoria’s Herald-Sun newspaper. The two-page investigative report published by the newspaper includes no methodology and few factual details.870 In claiming a dramatic explosion in the size of the sex trade, Dr. M. Sullivan also relies heavily on one 2007 report from IBISWorld,871 which she calls “the gold standard within the Australian context”. A private firm specializing in ‘industry market research’, IBISWorld does not list any authors, sources or research-based references in their report, nor do they provide information about where or how their figures for the sex industry were obtained.872

346. With respect to the specific claims made by Dr. M. Sullivan about prostitution in Australia since the advent of decriminalization and regulation measures, several of the assertions are directly contradicted by other research conducted by the Australian government, the United Nations, and ECPAT (End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes), an international non-governmental organization active against child prostitution worldwide. In terms of organized crime, Dr. M. Sullivan asserts that it “remains inherent across the industry”.873 This statement is inaccurate, given the qualitative and

868 Prostitution Amendment Act 2008 (WA), No. 13 of 2008, Cross-Examination of Ronald Weitzer, Application Record, Vol. 31, Tab 65(F). 869 Affidavit of Mary Sullivan, Application Record, Vol. 52, Tab 116, p. 15096, para. 37. 870 Craig Binnie, “Sex Slave Ring Smashed” Herald Sun (Victoria), May 25, 2004, Application Record, Vol. 52, Tab 116(A)(11). 871 Except from IBISWorld, IBISWorld Industry Report ‘Sexual Services’ in Australia, Q9528-Industry Definition, 2007, Application Record, Vol. 52, Tab 116(7), p. 15215. 872 Affidavit of Barbara Sullivan, Application Record, Vol. 27, Tab 61, p. 7724; UT4 2007 IBISWorld Industry Report, Sexual Services in Australia, 11 January 2007, Supplementary Application Record, Vol. 2, Tab176(D). 873 What Happens When Prostitution Becomes Work?”, Coalition Against Trafficking in Women, 2005, Application Record, Vol. 52, Tab 117(H), p. 16000.

170 of 243 quantitative evidence produced by both the Crime and Misconduct Commission and the Prostitution Licensing Authority in Queensland.

347. On the issue of human trafficking, Dr. M. Sullivan identifies Australia as “an attractive option for importers of people to work in prostitution, including traffickers”.874 According to Dr. M. Sullivan, it is the country’s legalization and decriminalization efforts that draw traffickers to Australia:

One of the most crucial factors in understanding the link between prostitution and the importation of women from abroad to work in prostitution is the significance of creating a legalized/decriminalized market for prostitution, as in the case with Australia.875

348. This statement appears at odds with the United Nations’ ranking of human trafficking destinations; while Australia is indeed identified as being a “high demand” destination, it gives the same rating to Canada and an even higher rating of “very high” to the United States, both of which are countries where prostitution is generally illegal (with the exception of the single state of Nevada).876

349. Dr. M. Sullivan’s findings related to child prostitution appear similarly flawed. In a 2006 report, ECPAT did not identify any link between Australia’s legalization efforts and child prostitution. Instead, the report found that Australia meets international standards and has taken “solid” policy and legislative steps to reduce child prostitution.877

350. Dr. M. Sullivan on occasion will selectively report statistics from research studies. For example, asserting that “the normalization of prostitution has resulted in a substantial increase in demand for prostitution services”, Dr. M. Sullivan quotes a study in her affidavit that found “one in six Australian men have paid for sex”.878 This study, when examined in its entirety, contextualizes this finding in a way that greatly alters its impact: of the 15.6% of men who had ever paid for sex, researchers found that only 1.9% had done so within the past year. Further, in comparing the results to a survey conducted in 1986, one finds that the demand for commercial

874 Affidavit of Mary Sullivan, Application Record, Vol. 52, Tab 116, p. 15114. 875 Affidavit of Mary Sullivan, Application Record, Vol. 52, Tab 116, p. 15115. 876 Report: “Trafficking in Persons: Global Patterns”, United Nations Office on Drugs and Crime (UNODC), April 2006, Application Record, Vol. 57, Tab 119(K). 877 Affidavit of Barbara Sullivan, Application Record, Vol. 27, Tab 61, p. 7728, para. 18. 878 Ibid., p. 15122, para. 96.

171 of 243 sex may have declined: in 1986, 19.2% of men had ever paid for sex and 2.5% had paid for it in the preceding year.

351. Many of Dr. M. Sullivan’s statements in both her published work and her affidavit and cross-examination reflect a moral viewpoint which condemns all forms of sex work as “inherently violent”,879 and which may impede Dr. Sullivan from recognizing the positive features of the legislative regimes she studies – features which have been clearly documented in more than one study conducted by the Australian government. Given Dr. M. Sullivan’s personal belief that “legalized prostitution is government-sanctioned abuse of women”880, as well as her membership in the Coalition Against Trafficking Women (whose philosophy statement asserts, “all prostitution exploits women, regardless of women’s consent”881), it seems apparent that Dr. M. Sullivan does not maintain the impartiality needed for effective academic research, be it quantitative or qualitative.

B. New Zealand – Dr. Pratt

352. In 2003, the New Zealand government passed a bill decriminalizing prostitution. The Prostitution Reform Act882 (PRA) creates the framework for a regulated industry, including the certification of “operators of a business of prostitution,” occupational health and safety protection for sex workers, and inspection powers to ensure compliance with the health and safety requirements. Designed to address a variety of human rights concerns, the Act included several provisions:

The purpose of the PRA was to decriminalize prostitution (while not endorsing or morally sanctioning prostitution or its use); create a framework to safeguard the human rights of sex workers and protect them from exploitation; promote the welfare and occupational health and safety of sex workers; contribute to public health; and prohibit the use in prostitution of persons under 18 years of age. The PRA also established a certification regime for brothel operators.883

879 Cross-Examination of Mary Sullivan, Application Record, Vol. 54, Tab 117, p. 15813. 880 “What Happens When Prostitution Becomes Work?”, Coalition Against Trafficking in Women, 2005, Application Record, Vol. 52, Tab 117(H), p. 16019. 881 “An introduction to CATW”, Coalition Against Trafficking in Women (CATW) website, http://www.catwinternational.org/about/index.php, 2008, Application Record, Vol. 54, Tab 117(A). 882 The Prostitution Reform Act 2003 (N.Z.) 2003/28, Application Record, Vol. 62, Tab 125(B). 883 Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Application Record, Vol. 62, Tab 125(C), p. 18154.

172 of 243 353. Included in part four of the PRA was an order for the establishment of a Prostitution Law Review Committee (PLRC) to review the operation of the PRA three to five years after it enactment. With meetings of the eleven-member Committee beginning in March 2004, the PLRC’s first task was to assess the number of sex workers in New Zealand at the time of decriminalization. These estimations formed the Committee’s first report, “The Nature and Extent of the Sex Industry in New Zealand: An Estimation”, released in 2005.884 The Committee’s second task was to determine whether the PRA was achieving its intended purpose. Research on this issue continued for three years, with a formal 173-page report published in May 2008 examining a number of key issues:

The review was also to include an assessment of the operation of the PRA since its commencement, the impact of the PRA on the number of persons working as sex workers in New Zealand, and the nature and adequacy of the means available to assist persons to avoid or cease working as sex workers. The Committee was also tasked with considering whether the system of certification is working adequately, whether any amendments to the PRA or any other law was necessary, and whether further review was required.885

354. Starting in 2006 and continuing until late 2007, research for the Committee was “carried out by the Christchurch School of Medicine (CSOM), Crime and Justice Research Centre (CJRC), and the Ministry of Justice”.886 In addition, the New Zealand Prostitutes’ Collective (NZPC) “carried out audits of advertisements for sexual services for both the CSOM and the Ministry of Justice”.887 Following a framework developed by Victoria University’s Crime and Justice Research Centre (CJRC) recommending a “mixed method approach to incorporate perspectives from multiple informants and stakeholders”,888 the research consisted of five separate evaluation projects.

355. Each of these evaluation projects included estimations of sex worker numbers and characteristics. In terms of the accuracy of their estimations, the Committee included the following statement in their final report:

884 Prostitution Law Review Committee, “The Nature and Extent of the Sex Industry in New Zealand: An Estimation”, Application Record Vol. 63, Tab 125(F). 885 Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Application Record, Vol. 62, Tab 125(C), p. 18165. 886 Ibid., p. 18166. 887 Ibid., p. 18166. 888 Ibid., p. 18166.

173 of 243 Where research data is provided in percentage form, the Committee has attempted to supply numerical equivalents. These should be treated as approximations.889

356. In an effort to address the difficulties inherent in attempting to quantify an industry “which remains discreet and to a large extent difficult to study”,890 the five evaluations used a mix of quantitative and qualitative information gathering, including surveys and in-depth interviews. In addition to these evaluations, the PLRC heard presentations “from representatives of territorial authorities, NGOs, Police, and the sex industry”,891 visited city brothels and traveled to areas of street-based work in each of the three cities (Auckland, Christchurch and Wellington) and two territorial areas (Nelson and Hawke’s Bay) selected for the Committee’s review.

357. In light of the controversial nature of the sex industry, the Committee spent a large part of the report documenting and refuting many industry stereotypes:

In compiling this report, the Committee has examined common assumptions about sex workers and the sex industry. The research undertaken for the review has provided information that challenges, and in some cases refutes, commonly held perceptions about the sex industry and those who work in it. The Committee considers many commonly held perceptions have been based on stereotypes and a lack of information.892

358. Among these assumptions was the belief that a large percentage of sex workers are coerced into the industry and pushed to work against their will. On the topic of possible exploitation and coercion, the Committee found the following:

Despite the perception that all sex workers are made to work by someone else, only 4.3% or approximately 28 of the 656 female participants in the CSOM study reported being made to work by someone. This was twice the number of male workers (2.1%); no transgender workers reported being made to work. Of the 201 street workers surveyed, 8% (about 16 people) reported being made to work by someone. … The Committee recognizes the difficult nature of proving coercion has occurred, as well as the reluctance on the part of exploited people to lay a complaint. However, information received by the Committee suggests coercion is not widespread. The Committee also acknowledges that sex work is a job some people have chosen and are happy doing.893

889 Ibid., p. 18166. 890 Ibid., p. 18170. 891 Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Application Record, Vol. 62, Tab 125(C), p. 18165. 892 Ibid., p. 18304. 893 Ibid., p. 18304.

174 of 243 359. The Committee also examined the assertion that the sex industry in New Zealand is dangerously linked to elements of organized crime, determining that any such connections are minimal:

A Police report on the vice scene in 2001 (prior to decriminalization) pointed to links between organized crime and the sex industry, but was unable to quantify the extent of the activity due to its covert nature. The report also pointed out that private workers were less likely to be connected to organized crime, and many commercial sex businesses had no connection with criminal activity. Police currently does not have a structured way of collecting information related to prostitution. However, anecdotal information from Police at a district level suggests the relationship between prostitution and criminal activity has not altered post PRA … The Committee considers that the links between crime and prostitution are tenuous. The Committee could not find any evidence of a specific link between crime and prostitution.894

360. Two other controversial issues examined by the PLRC were the sex industry’s possible links to human trafficking and child/youth exploitation. On the topic of trafficking, the Committee found no evidence of such crimes occurring in the country:

The Committee is satisfied, on the basis of information received from NZPC and other NGOs involved with street-based sex workers, that during its period of investigation, there were no internationally trafficked women working as street- based sex workers in New Zealand. … The Committee considers the prohibition on non-residents working in the sex industry, coupled with New Zealand’s geographical isolation and robust legal system, provides a protection against New Zealand being targeted as a destination for human traffickers.895

361. Of particular concern to the Committee was whether or not decriminalization has increased the number of youth involved in prostitution, though their research ultimately concluded otherwise:

Based on the research and the information provided to the Committee, the Committee does not consider the PRA has increased under age involvement in prostitution. The Committee believes the media coverage of under age involvement in prostitution has often created an exaggerated impression of the numbers involved. The Committee believes the passage of the PRA has raised awareness of the problem of under age prostitution, and that this is a positive consequence. A very small percentage of young people who are sexually active

894 Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Application Record, Vol. 62, Tab 125(C), p. 18304. 895 Ibid., p. 18308.

175 of 243 are active in the context of prostitution. Further, few young people, who can generally be termed ‘at risk’, are involved in prostitution.896

362. A major area of study was for the Committee was the operation and physical condition of licensed brothels since decriminalization. The Committee’s final report described the conditions of indoor work prior to 2003 in a particularly negative light:

The illegal status of the sex industry prior to the enactment of the PRA had a marked effect on the employment conditions faced by sex workers. The CSOM study noted that criminalized sex workers had none of the rights accorded to workers in other occupations and, therefore, they were open to coercion and exploitation by managers, pimps and clients. No health and safety guidelines governed working conditions.897

363. In terms of legislation’s effect on indoor work, the Committee concluded the following:

… the PRA has had a marked effect in safeguarding the right of sex workers to refuse particular clients and practices, chiefly by empowering sex workers through removing the illegality of their work.898

364. Despite these positive changes, the Committee was clear that progress had been slow in improving employment conditions for indoor workers, though Committee members felt the slow nature of these developments was typical of any industry, and recommended increased measures for educating both employers and employees as to their rights under the Prostitution Reform Act:

The Committee recognizes that, even with government intervention, change in any industry happens slowly. This is usually for the best, provided there is a framework in place that protects the rights and promotes the interests of all involved in it. In the Committee’s view, the sex industry should be allowed to evolve naturally, without radical government intervention beyond that which has already occurred (i.e. decriminalization). However, having best practice employment relationships would be an excellent way to foster the ‘normalization’ of the industry that the PRA foreshadows. As a first step, the Committee considers that extra information on employment matters could be included when providing brothel operators with brothel certificates.899

365. Integral to the Committee’s assessment of each of these aspects of the sex industry were the number estimates developed by its researchers in 2005 and 2007. Many opponents of the PRA had predicted sharp increases in the number of sex workers as a result of decriminalization,

896 Ibid., p. 18243. 897 Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Application Record, Vol. 62, Tab 125(C), p. 18292. 898 Ibid., p. 18188. 899 Ibid., p. 18300.

176 of 243 and determining the truth of this claim was a key element in determining the legislation’s overall effectiveness. In their final report, the Committee made an effort to distinguish between the increased visibility of sex workers resulting from decriminalization, and any notion that the actual number of workers had definitively increased:

Arguments that decriminalization has increased the numbers of people in the sex industry are largely founded on the flawed assumption that decriminalization would increase the numbers of people involved in prostitution. The Committee is satisfied that such assumptions have been proved to be unfounded. One of the consequences of decriminalization has been the illumination of the workings of an industry which have historically been hidden. Sex workers and brothel operators can now be more open about their occupation. Similarly, street-based sex workers are now able to be more visible since soliciting in a public place is no longer illegal. Greater visibility of the sex industry is not indicative of growth of that industry. Further, the Committee considers increased visibility to be a desirable consequence of decriminalization for those who are most at risk in the industry, namely street-based workers and under age people involved in prostitution. Accurately counting the number of sex workers remains difficult. However, the Committee endorses the findings of the CSOM that the enactment of the PRA has had little impact on the numbers of people working in the sex industry.900

366. In particular, the Committee was critical of unnamed opponents of the PRA who had claimed a 400% increase in sex workers in Auckland:

The Committee is aware of reports claiming the numbers of sex workers, and in particular street-based sex workers, have increased as a result of decriminalization. Addressing these claims forms a substantial part of this chapter. Often, the increases have been reported in general terms, based on impressions, rather than citing actual numbers. One exception is the claim that the numbers of street-based sex workers in Auckland increased by 400% as a result of decriminalization. This claim cannot be substantiated, and was not based on systematic or robust research. … The figure of a 400% increase has been re- reported several times, demonstrating the ease with which opinion can be perceived as ‘fact’. … A 400% increase in the numbers of sex workers was predicted prior to the passage of the PRA, and was also claimed in relation to the law reform in New South Wales. This may be the original source of the idea that numbers of sex workers will, or have, increased by such a margin as a result of law reform. Officials advising the Select Committee were unable to find any statistical evidence to support the claim. … In the Committee’s first report, the number of street-based sex workers in Auckland was estimated to be 360 (PLRC, 2005). An increase of 400% would mean there would now be 1,440 sex workers on Auckland’s streets. The Committee considers that the research undertaken by

900 Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Application Record, Vol. 62, Tab 125(C), p. 18182.

177 of 243 the CSOM conclusively refutes an increase of this magnitude, with the 2007 figures estimating the number of Auckland street-based sex workers at 230.901

367. After examining all research compiled from the five areas studied, the Committee drew the following conclusions:

The PRA has been in force for five years. During that time, the sex industry has not increased in size, and many of the social evils predicted by some who opposed the decriminalization of the sex industry have not been experienced. On the whole, the PRA has been effective in achieving its purpose, and the Committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously.902

368. While the Committee did not find a need for major changes or any reduction in the scope of New Zealand’s decriminalization measures, the final report was realistic in its discussion of positive developments and did not hesitate to address elements of the industry where progress had been delayed:

… progress in some areas has been slower that may have been hoped. Many sex workers are still vulnerable to exploitative employment conditions, and there are still reports of sex workers being forced to take clients against their will. Nevertheless, it is encouraging to note that most sex workers contacted during the research for this report were aware of their right to say ‘no’, and that some brothel operators’ behaviour in this respect has improved since the enactment of the PRA.903

369. As part of their evidence in the case at bar, the Crown included an affidavit from Dr. John Pratt, a Professor of Criminology in the Institute of Criminology at Victoria University of Wellington in Wellington, New Zealand. The majority of Dr. Pratt’s publications in the last twenty years has related to “the history and sociology of punishment in modern society”904 and has not been based on primary research. Dr. Pratt does not “profess to have any expertise on the subject of prostitution and its legal control”905 and it is an area in which he has “never conducted any research primary or otherwise”906. Nevertheless, the focus of Dr. Pratt’s affidavit is a critique of some of the research methods and conclusions of the PLRC’s 2008 report.

901 Ibid., p. 18181. 902 Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Application Record, Vol. 62, Tab 125(C), p. 18309. 903 Ibid., p. 18309. 904 Affidavit of Dr. John Pratt, Application Record, Vol. 62, Tab 125, p. 18029. 905 Ibid., p. 18031. 906 Ibid., p. 18031.

178 of 243 370. In his criticism of the report and its methodology, Dr. Pratt does not argue that the number of sex workers in New Zealand has increased since 2003, but rather that the report’s assertions of no change in numbers cannot be definitively proven:

I am not saying that, since the passage of the PRA 2003, prostitution has increased. … we simply cannot say on the basis of the research that was conducted for Report 2008 whether or not there has been any increase since decriminalization.907

371. Dr. Pratt also points out the difficulty in determining accurate numbers of those involved in prostitution when many often “drift in and out of such character classifications”908 – a reality acknowledged many times within the 2008 report, with the Committee wishing “to emphasize the difficulty of accurately assessing the number of people involved in the sex industry, even in the current decriminalized environment”.909

372. In addition to the known difficulties in quantifying such a population given the nature of sex work, Dr. Pratt points out that the financial and time constraints, and the decision to restrict the study to five cities, would increase this difficulty. Though the report notes their inability to determine exact numbers of sex workers outside their selected cities, Dr. Pratt feels “the Committee seems to minimize this problem” 910. Ultimately, it is Dr. Pratt’s belief that “we still cannot say what effect the legislation has had on the size of the sex industry on the basis of the research that the Committee relied on when making such judgments”.911

373. Other issues raised by Dr. Pratt with regards to the 2008 report include the “very pertinent issue”912 of whether sex workers have begun reporting their income for tax purposes, and the failure of the Committee to indicate whether the improvement in sex workers’ relationships with police officers in Christchurch had occurred before or after two murders of street sex workers in 2005913. While Dr. Pratt acknowledges that the improvements in the health

907 Affidavit of Dr. John Pratt, Application Record, Vol. 62, Tab 125, p. 18039. 908 Affidavit of Dr. John Pratt, Application Record, Vol. 62, Tab 125, p. 18043. 909 Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, Application Record, Vol. 62, Tab 125(C), p. 18055. 910 Affidavit of Dr. John Pratt, Application Record, Vol. 62, Tab 125, p. 18043. 911 Ibid., p. 18050. 912 Ibid., p. 18063. 913 Ibid., p. 18064.

179 of 243 and safety of sex workers discussed in the 2008 report “may well be the case for some”914, he feels “the extent to which this then represents an overall pattern is very hard to ascertain”.915

374. The Applicants requested that Dr. Pratt answer questions pursuant to rule 35 of the Rules of Civil Procedure. Specifically he was asked to read and respond to a recently released article covering the PLRC’s research and report. Published in the Journal of Social Policy in early 2009, the article was written by the same three public health experts (Gillian M. Abel, Lisa J. Fitzgerald and Cheryl Brunton) tasked with researching and reporting on the health and safety practices of New Zealand sex workers for the Law Review Committee in 2007 as part of the PRA review.

375. In their article, “The Impact of Decriminalization on the Number of Sex Workers in New Zealand”, the authors reached the same conclusions found in the Prostitution Law Review Committee’s report:

Although we cannot claim that decriminalization will be experienced in the same way in other countries, our study demonstrates that decriminalization of sex work in New Zealand has not created the unwanted and unintended consequence of increasing either the overall number of sex workers or the size of the street sector.916

376. The article also notes an interesting finding of movement from the outdoor to indoor sectors:

Our more recent estimates show that there has been little change, with the exception of a trend of movement from the managed sector to the private sector. More than half the number of sex workers in the areas studied worked within the managed sector of brothels and escort agencies. Over a third of sex workers worked privately, either from their own home or with other private workers from shared premises. Only one tenth of all sex workers worked on the street and this proportion is consistent with previous estimates.917

377. With regards to the question of applying numerical estimations from the five areas studied to the country as a whole, the authors are confident that even conservative extrapolations show little increase in the overall number of sex workers in New Zealand:

914 Ibid., p. 18066. 915 Ibid., p. 18066. 916 Written Questions on the Affidavit of John Pratt, Application Record, Vol. 64, Tab 126(A), p. 18714. 917 Ibid., p. 18713.

180 of 243 This research suggests that there has been little impact on the number of people working in the sex industry post-decriminalization. Identical estimation procedures were used in this study as those used to estimate the size of the Christchurch sex industry in 1999. Our more recent estimates show that there has been little change, with the exception of a trend of movement from the managed to the private sector. More than half the number of sex workers in the areas studied worked within the managed sector of brothels and escort agencies. Over a third of sex workers worked privately, either from their own home or with other private workers from shared premises. Only one tenth of all sex workers worked on the street and this proportion is consistent with previous estimates. Concerns have been expressed by some commentators that numbers of workers on the street has increased post-decriminalization. Our research would not support this concern. This is the most visible sector of the industry and does attract more attention from the media and others. Yet the three estimates that have been done in Christchurch during the course of our research show that the number of workers on the street has remained stable and consistent with pre- decriminalization estimations.918

378. In the written questions posed to Dr. Pratt, he was asked specifically to determine whether, in light of the article, he wished to modify or change statements from his affidavit pertaining to the PLRC’s apparent inability to definitively determine any increase in the number of sex workers since decriminalization. In his response, Dr. Pratt makes one change to his original statements:

Having now read Abel et al (2009), I would like to state that the only modification I wish to make to the statements in the above paragraph is that I am now confident that there has been no increase in street based sex work in Christchurch since 2003 decriminalization.919

379. Despite this modification of his affidavit, Dr. Pratt still concludes that the possibility of an overall increase in the number of sex workers since decriminalization cannot be ruled out based on the research of PLRC:

… comparing the numbers of prostitutes before and after decriminalization in New Zealand was always going to be highly problematic, because whatever methods were adopted for the ‘post’ count, there was no reliable measurement of the national ‘pre’ figure… We can only say that the number of street based sex workers in Christchurch has not increased since decriminalization, but we cannot credibly say more than this.920

918 Written Questions on the Affidavit of John Pratt, Application Record, Vol. 64, Tab 126(A), pp. 18712-18713. 919 Response to the Opposing Counsel of John Pratt, Application Record, Vol. 64, Tab 126(B), p. 18719. 920 Ibid., p. 18724, 18738.

181 of 243 C. Germany – Janice Raymond

380. The German Bundestag passed the Act Regulating the Legal Situation of Prostitutes (Prostitution Act) in 2001.921 Entering into force in January of 2002, the Act decriminalized aspects of prostitution in Germany. From a legal perspective, prostitution was no longer considered an immoral transaction. The Act’s regulations grant prostitutes a legally enforceable claim to payment of remuneration for their services and the ability to enter into legally valid employment contracts. Further, in its amended version, Section 180a(1) of the Criminal Code protects sex workers from exploitation by subjecting to criminal liability those who keep prostitutes personally and financially dependent on a brothel-type establishment.922 The promotion of prostitution on a commercial basis by finding clients for sexual intercourse is only punishable if it thereby restricts the prostitute’s “personal or financial independence”.923 Nevertheless, it is punishable, among other things, for a person to supervise another’s engagement in prostitution for material benefit, to determine the time, place, extent or other circumstances of an individual’s engagement in prostitution.924

381. While Section 1 of the Prostitution Act gives women a legally enforceable claim to remuneration from a client or brothel operator, the latter do not possess equally valid claims to the performance of sexual services.925 According to the Act, prostitutes have the legal right to refuse to perform sexual acts at any time, (notwithstanding any agreement reached) and maintain the right to refuse performance of services to a specific client. These regulations are an “expression of the high value placed on the right to sexual self-determination, which is not to be restricted unnecessarily through contractual obligations.”926

382. The current legal regime in Germany treats prostitution as a social reality. According to the Federal Government, “the Prostitution Act was “intended neither to abolish prostitution nor

921 Federal Ministry for Family Affairs, Senior Citizens, Women and Youth: Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), Application Record, Vol. 60, Tab, 121, p. 17675 922 Federal Ministry for Family Affairs, Senior Citizens, Women and Youth: Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), Application Record, Vol. 60, Tab, 121, p. 17711. 923 Ibid., p. 17711. 924 Ibid., p. 17711. 925 Ibid., p. 17683. 926 Ibid., p. 17684.

182 of 243 to enhance its status”.927 Rather, emphasis was placed on improving the working conditions for prostitutes and their access to social benefits.928 In its evaluative Report, the Government states that “the risks, disadvantages, and problematical implications associated with prostitution cannot be countered by forcing prostitution into the shadows using repressive measures. Rather, it must be possible to limit the problematical aspects associated with it by taking prostitution out of the shadows and monitoring the conditions under which it is practiced in a manner that is based on the principles of the rule of law”.929

383. The Prostitution Act was intended to improve the legal and social circumstances of prostitutes in several respects; women engaging in proper employment relationships would no longer have to rely on pimps to find them work and protect their safety. According to the Report, “protection by the law or the police can reduce the need for protection from extralegal institutions”.930 Furthermore, brothel operators and owners of brothel-like establishments would be able to improve the working conditions of prostitutes through the Licensing Act and trade regulations. In particular, “it was anticipated that the conditions under which prostitutes work would improve if the previous criminal-law obstacles to improving their working environment were eliminated”.931

384. The Prostitution Act was never directly intended to reduce crime associated with prostitution; however, by providing greater transparency to the world of prostitution, it was thought that an indirect consequence of the Act would be to make it easier to combat violence and degrading forms of prostitution, such as human trafficking, exploitation, and child prostitution.932

385. The goals intended by the legislator in passing the Prostitution Act are summarized in the conclusion of the Federal Government’s Report.933 They are listed as follows: a) For prostitution to no longer be considered immoral, b) To ensure that prostitutes can take legal action to enforce their pay,

927 Ibid., p. 17678. 928 Ibid., p. 17678. 929 Ibid., p. 17681. 930 Federal Ministry for Family Affairs, Senior Citizens, Women and Youth: Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), Application Record, Vol. 60, Tab, 121, p. 17713. 931 Ibid., p. 17713. 932 Ibid., p. 17678. 933 Ibid., p. 17748.

183 of 243 c) To facilitate access to social insurance, d) To remove the breeding ground for prostitution-related crime, e) To make it easier for prostitutes to leave prostitution, and f) To improve working conditions (which pose as few health risks as possible).

386. The Federal Government currently sees no reason to amend or repeal the Prostitution Act. Since the Act represents a very limited approach, it “can only be a first step towards achieving the intended goals.”934 According to the Government, a “more broad-based approach to regulating prostitution is required… the existing legal instruments of licensing, trade, police and administrative law need to be used more efficiently… and expanded in order to subject prostitutes’ working conditions to legal controls to protect those working in prostitution and to prevent attendant crime.”935

387. In terms of crime, there is no statistical evidence to prove that the Prostitution Act has either “reduced crime/promoted criminal prosecution or that it has promoted crime/hindered criminal prosecution”. 936 According to the Report, “the majority of police and public prosecution office representatives interviewed said the new Act had not brought any great changes in their area of work.”937 During the legislative process, it was clear that combating prostitution-related crime “would be an indirect, long-term effect of the Prostitution Act. Of course, “certain groups, such as prostitutes working illegally in Germany, or those with drug addictions, can hardly benefit from the improved legal situation”.938

388. Furthermore, “no trend can be observed regarding the number of cases of trafficking on human beings following the Prostitution Act”.939 According to the Federal Government, “the hypothesis that amending Sections 180a and 181a of the Criminal Code would make the prosecution of trafficking in human beings and other serious crimes more difficult has not been confirmed by empirical evidence”. Moreover, while the pre-conditions for police investigations are stricter, empirical evidence confirms that this has not been to the detriment of criminal

934 Ibid., p. 17748. 935 Federal Ministry for Family Affairs, Senior Citizens, Women and Youth: Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), Application Record, Vol. 60, Tab, 121, p. 17749. 936 Ibid., p. 17714. 937 Ibid., p. 17715. 938 Ibid., p. 17713. 939 Ibid., p. 17714.

184 of 243 investigations.940 There is also no viable evidence to support the claim that the police can no longer raid the “scene” as much as they could before the implementation of the Act.941

389. Finally, the results of the SoFFI K I study reveal that the working conditions of prostitutes have improved only marginally.942 The intention of the legislator was that “the requirements made of operators and establishments in applying the Licensing Act and trade regulations would make the world of prostitution more transparent and thus contribute to making sustainable improvements to prostitutes’ working conditions”.943 However, interviews with brothel owners and operators of brothel-like establishments reveal that wide-spread uncertainty on how to apply trade and licensing law, as well as initial uncertainty as to the current legal situation, make employers hesitant to invest in better working conditions.944 Yet, the study suggests it “may be possible to motivate operators to make changes by monitoring more closely whether certain minimum standards (structural, hygiene, labor law) are being complied with.945 Also, improvements would be more likely if “authorities at local levels worked together to help improve conditions, for example the locale public order agency, the local health authority and criminal police plus special consultation services and operators”.946

390. Contrasting the seemingly neutral and tentative Report by the Federal Government, Janice Raymond discusses the German experience with decriminalization in decidedly calamitous terms. It should be noted that Ms. Raymond focuses heavily on trafficking in her evidence on Germany. In fact, she states “stopping human trafficking was one of the reasons why Germany made prostitution and aspects of the sex industry legal”. Nowhere does the Federal Government Report list reducing or eliminating sex trafficking as a primary objective of the Prostitution Act.

391. Among other things, Ms. Raymond argues decriminalization in Germany has promoted sex trafficking, sex tourism, and child prostitution.947 While there appears to be no empirical

940 Ibid., p. 17721. 941 Ibid., p. 17722. 942 Ibid., p. 17732. 943 Federal Ministry for Family Affairs, Senior Citizens, Women and Youth: Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), Application Record, Vol. 60, Tab, 121, p. 17731. 944 Ibid., p. 17732. 945 Ibid., p. 17732. 946 Ibid., p. 17733. 947 Affidavit of Janice Raymond, Vol. 55, Tab 119, p. 17696.

185 of 243 evidence to support such claims, Ms. Raymond draws these conclusions from a number of reports and newspaper articles. For instance, she relies on a 2006 UNODC Report948, which ranked Germany as a “very high” destination for trafficked victims, to support her conclusion that decriminalization promotes or increases sex trafficking. Yet, the UN Report in fact shows no discernible pattern between decriminalization and sex trafficking; high rates of sex trafficking are apparent in both legalized and criminalized regimes. Moreover, during her cross- examination, Ms. Raymond admit she did not know how the UN arrived at its figures on human trafficking.949 She was unaware that when the UN ranks a country as “very high” in terms of trafficking, this is not based on a headcount of victims but on how many times source institutions (including the media) mention a given country.950 Ms. Raymond also relies on a Transcrime Report revealing a rise in trafficking between 2002 and 2003 to support her position on decriminalization. She seemingly ignores the Report’s contention that “the apparent rise of trafficking victims registered between 2002 and 2003 cannot be considered as one of the consequences of the prostitution law but as the resulting effect of the inclusion of new items in the recording system of the Criminal Federal Police”.951

392. Ms. Raymond also indicates German men are travelling extensively to other countries, particularly the Czech Republic, to obtain sex from child prostitutes.952 She uses this evidence to support her assertion that child prostitution is on the rise in Germany. Not only does Ms. Raymond rely almost exclusively on newspaper articles to support this conclusion, her argument is counter-intuitive, as there would be no need to travel to another jurisdiction if there was a market for child prostitutes in the local jurisdiction.

393. Ms. Raymond further contends that decriminalization has decreased police access to victims of trafficking. She echoes the words of one lawmaker quoted in a newspaper article who states that “because prostitution is legal, police don’t investigate it as aggressively as they once did” to support this assertion.953 She also quotes a member of the German NGO, Solitary of Women in Distress (SOLWODI), who claims “the police have practically now way of justifying

948 Exhibit to the Affidavit of Janice Raymond, Application Record, Vol. 57, Tab 119 (K) pp. 16563-16684. 949 Cross-Examination of Janice Raymond, Application Record, Vol. 60, Tab 120, p. 17543. 950 Ibid., p. 17543. 951 Ibid., p. 17560. 952 Affidavit of Janice Raymond, Vol. 55, Tab 119, pp. 16057-16058. 953 Schofield, Matthew, “Germans Reconsider Legalized Prostitution” Knight Ridder Newspapers, May 12, 2006, Application Record, Vol. 57, Tab 119(P) p. 16705.

186 of 243 brothel raids”.954 Finally, Ms. Raymond references a newsletter written by SOLWODI indicating that the new law has caused the NGO to loose its connections with police and local authorities.955

394. However, the Government Report shows that by and large, police and prosecutors want to keep the new law. According to the SOFFI KI study, 60% of the representatives from public prosecution offices saw no link between the Prostitution Act and the legal possibilities for prosecuting crimes.956 According to the Report, “only one of the 52 public prosecution offices and one of the 20 police stations [surveyed] called for the old Section 180a (1) No. 2 Criminal Code to be reinstated. Otherwise, even those representatives…who said that the loss of the promotion of prostitution had made their work more difficult also unanimously agreed that they were not in favor of the provision being reinstated. Abolishing that criminal offence was a step in the right direction to improving working conditions for prostitutes, they said”.957 Finally, contrary to Ms. Raymond’s assertions, EU enlargement to the east was quoted as the “primary reason for negative impacts on investigations in the context of the criminal prosecution of trafficking in human beings”.958

D. The Netherlands – Dr. Lotte Constance van de Pol

395. The Netherlands lifted its criminal ban on the running of brothels and profiting from prostitution on October 1, 2000. Before that time, the Dutch sex industry subsisted through a regime of “regulated tolerance”.959 While the Criminal Code technically prohibited “procuring, keeping brothels, soliciting, and profiting from venal sex,” this legislation was rarely enforced and such activities were routinely tolerated.960

396. With the legal change in 2000, the Netherlands shifted from away from its de facto tolerance of prostitution to a more controlled regulation of the sex trade.961 On behalf of the Crown, Dr. Lotte Constance van de Pol, a social historian, provided an affidavit stating that this

954 Affidavit of Janice Raymond, Vol. 55, Tab 119, p. 16059. 955 Ibid., p. 16059. 956 Federal Ministry for Family Affairs, Senior Citizens, Women and Youth: Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), Application Record, Vol. 60, Tab, 121, p. 17716. 957 Ibid., pp. 17716-17717. 958 Ibid., p. 17719. 959 Affidavit of Dr. Lotte Constance van de Pol, Application Record, Vol. 47, Tab 110, p.13500. 960 Ibid., p.13500. 961 Ibid., p.13501.

187 of 243 change “gave municipalities the tools “to regulate and restrict prostitution within their borders” and “regain a firm grip on the sex business”.962 The government also introduced legislation to combat violence, exploitation, and trafficking of prostitutes, as well as to protect minors.963 According to Dr. van de Pol, the aim of the legislation was to “give sex workers the rights, status and protection of normal work, so that the decriminalization could take prostitution out of the criminal context, and to provide more tools to fight against the abuses in prostitution…”964

397. After 2000, brothel owners had to apply for licenses and comply with hygiene and safety standards; prostitutes had to possess official work permits, pay taxes, and be at least 18 years old to work.965 As legally authorized workers, they also became entitled to social and medical benefits.966

398. The main objectives of the amendment, as stated in a 2004 Government Report,967 were: “to control and regulate voluntary prostitution, through the introduction of a municipal licensing policy amongst other things; to improve the combating of forced prostitution; to protect minors against sexual abuse; to protect the position of prostitutes; to separate prostitution from crime- related marginal phenomena; to reduce the level of prostitution offered by illegal foreign nationals”.968 Prostitutes, licensees within the regulated sector, as well as various government agencies, business service companies, and the Dutch population, have shown general support for the amended legislation and its underlying objectives.969

399. There are indications of ongoing improvements, since the enactment of the 2000 legislation, but so far these improvements have been minimal.970 Prostitutes in the regulated business sectors report levels of hygiene as ‘good’ to ‘very good’ and physical working conditions appear to changing for the better.971 Furthermore, the vast majority of prostitutes in the regulated sector report they ‘often’ or always feel ‘safe’.972 This echos the observations of

962 Ibid., pp. 13499-13500. 963 Ibid., p.13500. 964 Affidavit of Dr. Lotte Constance van de Pol, Application Record, Vol. 47, Tab 110, p.13518. 965 Ibid., p.13519. 966 Ibid., p.13519. 967 Lifting the ban on brothels, Prostitution in 2000-2001, Application Record, Vol. 48, Tab 112(A), pp. 13861- 13924. 968 Ibid., p.13863. 969 Ibid., p.13915. 970 Ibid., p.13865. 971 Ibid., p.13898. 972 Ibid., p.13898.

188 of 243 Dan Gardiner, witness for the applicants, who spent two weeks in the Netherlands studying the sex industry for a newspaper report.973 Finally, according to a 2007 UN Report,974 the legalized model “enjoys widespread support among the general public”;975 “women in the legalized and regulated sex sector are now better protected against violence, exploitation or unsafe working conditions since access by health or law enforcement authorities is assured and the activities in the regulated sector are more visible to the authorities. The legalization of brothels has also given brothel operators the opportunity to break criminal ties and with practices they maintained while operating in a situation of tolerated illegality”.976 Nevertheless, it appears that significant improvements to the position of prostitutes in both the legal and illegal sector require collaboration by municipalities, police, and local agencies.

400. According to an initial report by the Dutch Government in 2004, municipalities communicate very little with prostitutes and licensees.977 As a result, these groups have a “limited awareness about their rights and obligations”.978 Local authorities such as building control departments and fire brigades were also critical of the lack of information transfer by municipalities regarding prostitution issues.979 According to various agencies surveyed, “local government could play a more active role in the development and support of policy implementation”.980

401. Municipalities are not obliged to follow a specific prostitution policy; they may regulate the industry according to local circumstances.981 While policies regulating sex establishments vary among municipalities, it was found that a number of local governments implemented regulations which hindered new businesses from opening.982 According to the 2004 Government Report, due to the restrictive licensing policies adopted by many municipalities, “opportunities

973 Affidavit of Dan Gardiner, Application Record, Vol. 10, Tab 38, pp. 2530-2531, para. 7. 974 UN Human Rights Council, UN Human Rights Council: Addendum to the Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Mission to the Netherlands, Application Record, Vol. 47, Tab 110(E), pp. 13674-13686. 975 Ibid., p. 13679. 976 UN Human Rights Council, UN Human Rights Council: Addendum to the Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Mission to the Netherlands, Application Record, Vol. 47, Tab 110(E), p. 13681. 977 Lifting the ban on brothels, Prostitution in 2000-2001, Application Record, Vol. 48, Tab 112(A), p. 13889. 978 Ibid., p. 13893. 979 Ibid., p. 13894. 980 Ibid., p. 13895. 981 Prostitution in the Netherlands since the lifting of the brothel ban, Application Record, Vol. 47, Tab 110(D), p. 13624. 982 Ibid., p. 13624.

189 of 243 for the renewal of the sector (and any corresponding improvement of the position of prostitutes) were limited.”983

402. Nevertheless, while brothel owners complain about the financial and administrative costs of operating a legal establishment, “the relative number of non-licensed business among the window brothels, clubs, and private houses seems to be very small. Non-licensed businesses were found most often in the escort branch and in home prostitution”.984 The percentage of prostitutes known to the tax authorities has doubled since 2000,985 and according to the 2007 Government Report,986 the number of foreign prostitutes who work “without possessing a [valid] permit has decreased. Increased inspections and enforcement constitute one of the reasons for the decrease”.987

403. Yet, there are indications that due to increased regulations and inspections of licensed establishments, illegal forms of prostitution are moving into the unlicensed, unregulated sector. Indeed, since the majority of police resources are spent on monitoring licensed establishments, law enforcement has a limited capacity to investigate punishable forms of exploitation in the non-licensed sector.988 The 2007 Government Report shows an increase in prostitution within establishments that do not officially provide sexual services. For example, women frequent couples clubs, sex saunas, or erotic sauna clubs as paid visitors and offer sexual services to men once inside.989 Apparently, a demand from clients for luxury and relaxation has lead to the advent of such clubs and “cannot be directly related to the lifting of the brothel ban”.990

404. In terms of illegal labor, researchers have had difficulty evaluating the number of prostitutes working without valid residence permits in the Netherlands since 2000.991 Involuntary or forced prostitution is also hard to detect; researchers state, “it is virtually impossible to pronounce on possible developments in the number of prostitutes working under

983 Lifting the ban on brothels, Prostitution in 2000-2001, Application Record, Vol. 48, Tab 112(A), p. 13916. 984 Prostitution in the Netherlands since the lifting of the brothel ban, Application Record, Vol. 47, Tab 110(D), p. 13646 985 Lifting the ban on brothels, Prostitution in 2000-2001, Application Record, Vol. 48, Tab 112(A), p.13903 986 Prostitution in the Netherlands since the lifting of the brothel ban, Application Record, Vol. 47, Tab 110(D), pp. 13580-16373. 987 Ibid., p. 13654. 988 Ibid., p. 13588. 989 Ibid., p. 13611. 990 Ibid., p. 13612. 991 Ibid., p. 13648.

190 of 243 some degree of coercion”.992 However, the 2007 Report indicates that trafficking in human beings is likely more difficult since decriminalization “since the enforcement of regulations has increased in comparison to the former situation, when all exploitation of prostitution was prohibited”.993 Further, researchers have not found a significant presence of minors in either licensed or non-licensed sectors.994

405. While Dr. Van de Pol acknowledges that the new legislation has had “moderate success” for the licensed sector of the prostitution business, she contends it has done nothing to reduce prostitution related crime.995 She notes there is a growing grey sector in the prostitution industry, such as escort services, which escape government control.996 Furthermore, “foreign women who cannot obtain work permits become victims of exploitation and violence”.997 According to Dr. Van de Pol, there has been no decrease in the trafficking and exploitation of women, involuntary prostitution, or violence against prostitutes since the new law came into effect.998 She notes that in 2005, Parliament introduced additional legislation to fight human trafficking.

406. Dr. Van de Pol also states that in 2008, the Dutch government proposed amendments to the laws regulating prostitution, such as making “licenses obligatory for every form of prostitution.”999 However, the majority of parliament “rejected plans to amend the law, first wanting to see more done to enforce the current legislation”.1000 Yet, the affiant notes that various municipalities have imposed restrictions on the sex trade; in 2003, Amsterdam closed the streetwalkers’ zone at the Theemsweg and as of 2006, the city invoked the Promotion of Integrity Review by the Public Administration law (BIBOB) to revoke licenses from owners with criminal records.1001 Further, in December 2007, Amsterdam announced a “major reconstruction of the Red Light District”.1002

992 Ibid., p. 13657. 993 Prostitution in the Netherlands since the lifting of the brothel ban, Application Record, Vol. 47, Tab 110(D), p. 13656. 994 Ibid., p. 13650. 995 Affidavit of Dr. Lotte Constance van de Pol, Application Record, Vol. 47, Tab 110, pp. 13501, 13519. 996 Ibid., p. 13501. 997 Ibid., p. 13525. 998 Ibid., p. 13501. 999 Ibid., p. 13502. 1000 Ibid., p. 13522. 1001 Ibid., p. 13530. 1002 Ibid., p. 13530.

191 of 243 407. Of the Netherland’s experiences with both prohibition and regulation of prostitution, the witness admits that neither regime has proven successful: “Prohibition usually reduces the business, but does not put an end to it, and drives it underground, where it can become part of the criminal scene. Control of excesses becomes more difficult, and being illegal, easily gets out of hand. With regulation, the government can control the business better and keep it concentrated, visible and, with luck, away from the criminal scene; but prostitution may also increase in scope and size”.1003

408. Upon answering questions on written examination for discovery pursuant to Rule 35 of the Rules of Civil Procedure, Dr. Van de Pol notes that her credentials include being guest curator at an exhibition and tour guide to the Red Light District,1004 however, she does not list any credentials related to empirical research being done into current working conditions of women in the sex trade.

409. At paragraph 55 of Dr. Van de Pol’s affidavit, she states “many prostitutes as well as brothel-keepers themselves are unhappy with the effects of the law”. Dr. Van de Pol admits that there is currently no research done on the levels of satisfaction of organizers and proprietors of brothels. Her assertion is based entirely on media articles, but she does not provide any of these articles in her supporting materials.1005 Furthermore, nowhere does she indicate either prostitutes or brothel-owners would like to see the law repealed.

410. At paragraph 63 of her original affidavit, Dr. Van de Pol describes various forms of violence associated with prostitution;1006 however, she does not provide any empirical evidence for these statements. Instead, she references her historical research on prostitution in Amsterdam since the Middle Ages and her research on violence and prostitution “in writings on other times and societies.”1007

411. At para. 71 of her affidavit, Dr. Van de Pol states “these facts and background show that the new prostitution legislation of 2000 has not meant that prostitutes are now more safe”.1008

1003 Affidavit of Dr. Lotte Constance van de Pol, Application Record, Vol. 47, Tab 110, p. 13535. 1004 Answers to undertakings provided by Lotte Constance van de Pol, Supplementary Application Record, Vol. 2, Tab 177, pp. 26910-26911. 1005 Ibid., pp. 26911-26912. 1006 Affidavit of Dr. Lotte Constance van de Pol, Application Record, Vol. 47, Tab 110, p. 13523. 1007 Answers to undertakings provided by Lotte Constance van de Pol, Supplementary Application Record, Vol. 2, Tab 177, p. 26913. 1008 Affidavit of Dr. Lotte Constance van de Pol, Application Record, Vol. 47, Tab 110, p. 13526.

192 of 243 The “facts and background” she is referring to include one newspaper article and information from one 2008 report, ‘Beneath the Surface’1009 (Schone Schijn), an investigation into the trafficking of prostitutes by one particular criminal gang.1010

412. Dr. Van de Pol concedes that the police in the ‘Beneath the Surface’ report do not recommend a repeal of the 2000 law reform or propose a return to the old laws.1011 In fact, in Dr. Van de Pol’s original and supplementary affidavits, she does not endorse a repeal of the 2000 law reform either.

413. Dr. Van de Pol admits that the measures taken and procedures followed by municipalities have proven to be insufficient, but that “the new measures that have been and are being proposed and implemented will improve this situation”.1012

E. Nevada – Melissa Farley

414. The legalization model currently operating in Nevada was first enacted in 1971. Nevada law prohibits the licensing of prostitution businesses in counties with a population of 400,000 or more.1013 This provision allows for smaller communities to license sex work if they wish. Acts of prostitution in Nevada are criminal, except when they occur within a licensed business.1014

415. Nevada legislation contains extensive regulations governing the licensed sex trade. Individuals seeking to become employed by a licensed establishment must test negative for various sexually transmitted infections1015 and must be re-tested every month for HIV and Syphilis, and every week for Chlamydia.1016 The use of condoms is mandatory for any sexual act.1017

416. Between 1998 and 2002, Barbara G. Brents and Kathryn Hausbeck of the University of Nevada conducted an extensive study into violence in the Nevada Brothel System.1018 The study

1009 Affidavit of Dr. Lotte Constance van de Pol, Application Record, Vol. 47, Tab 110(D), pp. 13831-13856. 1010 Answers to undertakings provided by Lotte Constance van de Pol, Supplementary Application Record, Vol. 2, Tab 177, pp. 26913-26914. 1011 Ibid., pp. 26906, 26916. 1012 Ibid., p. 26918. 1013 Nev. Rev. Stat. §244.345(8). 1014 Ibid. §201.354(1). 1015 Nev. Admin. Code 441A.800(1). 1016 Ibid. 441A.800(3). 1017 Ibid. 441A.805. 1018 Barbara G. Brents and Kathryn Hausbeck, “Violence and Legalized Brothel Prostitution in Nevada” (2005) 20 J. Interpersonal Violence 270, Application Record, Vol. 30, Tab 64(G).

193 of 243 involved ethnographic notes taken during visits of 50% of all licensed brothels in Nevada, interviews with forty sex workers and written surveys from several others, eleven interviews with current and former brothel managers and owners, ten state regulators and activists, and five customers.1019 The study sought to measure three forms of violence: interpersonal violence against sex workers, violence against community order, and violence in the form of disease.1020

417. Brents and Hausbeck identified a number of mechanisms, practices, and strategies that are ubiquitous throughout the brothels surveyed, and which work to reduce the risk of various forms of violence. While price negotiation normally occurs between sex workers and clients in private rooms, managers monitor the transactions over intercom systems. This practice occurs not only to confirm the prices negotiated, but also because it is at this stage where clients are perceived to be most at risk of becoming violent.1021 Once negotiation occurs, sex workers receive payment, and remove it to a central location in the brothel. This reduces the chance of clients attempting to use force to regain their money, and offers sex workers an opportunity to consult with management, and discuss any concerns they may have. This includes the possibility of having management continue to monitor the room upon the sex worker’s return.1022

418. Brothels also included ‘panic buttons’ in every room as an additional safety mechanism. Sex workers identified all of these mechanisms as providing strong feelings of security and safety.1023 The researchers noted that most sex workers never have had to resort to the buttons as they had not experienced physical violence. The brothel setting itself influences client conduct: it eliminates anonymity and reminds clients that they are under constant scrutiny. Other aspects of the regime, such as mandatory condom policies, attract a health-conscious clientele.1024 This atmosphere is what provides the key to reducing the threat of violence.1025 In the rare cases when violence does occur, co-workers in the brothels are nearby to provide immediate assistance.1026

419. Brents and Hausbeck also noted that the legalized status of brothels allowed for functional relations with law enforcement, as compared to the illegal sex work sector. As with

1019 Barbara G. Brents and Kathryn Hausbeck, “Violence and Legalized Brothel Prostitution in Nevada” (2005) 20 J. Interpersonal Violence 270, Application Record, Vol. 30, Tab 64(G), pp. 8661-8662. 1020 Ibid., p. 8661. 1021 Ibid., p. 8668. 1022 Ibid., pp. 8669-8670. 1023 Ibid., p. 8670. 1024 Ibid., p. 8676. 1025 Ibid., p. 8671. 1026 Ibid., p. 8673.

194 of 243 room monitoring, recourse to police is generally unnecessary – the fact that such recourse is available is itself a powerful tool in deterring violent conduct.1027

420. While sex work carries the inherent risk of violence, the brothel setting in Nevada effectively reduces these risks. Sex workers consistently report feelings of superior security as compared to other settings where sex work occurs.1028 Brents and Hausbeck conclude that, while risks of violence remain:

Legal brothels generally offer a safer working environment than their illegal counterparts. Regulated brothels offer particular ways of dealing with pragmatic safety issues and minimizing actual violence…Nevada brothels offer specific mechanisms to protect workers via the ways transactions are organized, the ways technology is ordered, the visibility of customers, the bureaucratic relationships among customers, managers and workers, and the cooperation with police based on the mere fact of their legality. All of these mechanisms work to eliminate systemic violence and to discourage an atmosphere of danger and risk that, as a mirror image of fact, is significant.1029

421. In her affidavit Melissa Farley discusses the Nevada brothel system in a starkly negative light. She asserts that legalization in Nevada does not reduce stigma,1030 that many sex workers want to “escape” the industry,1031 and that there are high rates of violence and coercion.1032 Farley’s assertions about Nevada are all based on a non-peer reviewed study of 45 brothel workers that she conducted in 2005 and 2006.1033 The nature of Farley’s study must be distinguished from that of Brents and Hausbeck. While Brents and Hausbeck focused on sex workers’ in-brothel experiences of violence, Farley did not. Though she questioned brothel workers about incidents such as verbal abuse or coercion,1034 the questions did not distinguish between incidents occurring while working in brothels and events taking place in other venues in the past.1035 As the Farley report itself stresses, sex workers in Nevada show a high rate of

1027 Barbara G. Brents and Kathryn Hausbeck, “Violence and Legalized Brothel Prostitution in Nevada” (2005) 20 J. Interpersonal Violence 270, Application Record, Vol. 30, Tab 64(G), pp. 8671-8672. 1028 Ibid., pp. 8677-8678. 1029 Ibid., pp. 8683. 1030 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp. 14223-14225, 14261, paras. 10, 115-116. 1031 Ibid., p. 14260, para. 111. 1032 Ibid., p. 14262, para. 121. 1033 Melissa Farley, Prostitution and Trafficking in Nevada: Making the Connections, Application Record, Vol. 49, Tab 113(D). A full version of a predecessor report, which is essentially identical, appears in the record: Melissa Farley, Prostitution and Trafficking in Nevada, Application Record, Vol. 32, Tab 65(G). See also Cross- Examination of Ronald Weitzer, Application Record, Vol. 31, Tab 65, p. 9104 l. 15 – p. 9105 l. 7. 1034 Melissa Farley, Prostitution and Trafficking in Nevada, Application Record, Vol. 32, Tab 65(G), p. 9279. 1035 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14796 l. 17 – p. 14797 l. 9.

195 of 243 mobility between venues.1036 Thus, even if the statistics in the Farley report were representative – which they admittedly are not1037 – they say nothing about in-brothel experiences.

422. Farley’s research on the Nevada system also suffers from confirmation bias. While she reports sex workers’ recollections of violent incidents (while opining that some are under- representative)1038 she discounts statements from the same workers regarding feelings of safety and satisfaction as self-denial.1039 Evidence of danger and fear is accepted as genuine, while contrary assertions are written off as symptoms of a pathological regime. Similarly, reports of having a pimp were accepted, but denials that spouses acted as pimps were dismissed.1040

423. Interestingly, Farley cites the Brents and Hausbeck study to support her own conclusions, however, she effectively misrepresents the study. Farley recounts and incident described by Brents and Hausbeck in which a brothel worker was seriously assaulted by a customer, presenting it as typical for brothel work.1041 What Farley does not mention is that this was the sole incident of violence that was experienced by any of the 40 participants interviewed in the study.1042 In a similar vein, Farley, in arguing that panic buttons located inside brothel bedrooms are ineffective, quotes Brents and Hausbeck saying that the buttons ‘served more as a “symbolic than an actual mechanism for protection against danger.”’1043 The actual passage from Brents and Hausbeck goes on to explain that “Most of the women who felt a sense of security with the panic button had also not experienced any violent situations.”1044

424. Aside from misrepresentation of the Brents and Hausbeck study, Farley’s study is comprised primarily of vignettes put forward as representative and lacking scientific rigour. Farley asserts, for example, that the generally accepted belief that there have been no cases of HIV transmission in the brothel system is incorrect. Rather than identify any actual cases of

1036 Melissa Farley, Prostitution and Trafficking in Nevada, Application Record, Vol. 32, Tab 65(G), p. 9278. 1037 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14685 l. 16 – p. 14686 l. 8. 1038 Melissa Farley, Prostitution and Trafficking in Nevada, Application Record, Vol. 32, Tab 65(G), p. 9296. 1039 Cross-Examination of Melissa Farley, Application Record, Vol. 50, Tab 114, p. 14807 l. 12 – p. 14808 l. 21; Ronald Weitzer, “Rehashing Tired Claims About Prostitution: A Response to Farley and Raphael and Shapiro” (2005) 11 Violence Against Women 971, Application Record, Vol. 30, Tab 64(E) p. 8617. 1040 Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113 p. 14243, para. 51; Melissa Farley, Prostitution and Trafficking in Nevada, Application Record, Vol. 32, Tab 65(G), p. 9282. 1041 Melissa Farley, Prostitution and Trafficking in Nevada, Application Record, Vol. 32, Tab 65(G), p. 9286. 1042 Barbara G. Brents and Kathryn Hausbeck, “Violence and Legalized Brothel Prostitution in Nevada” (2005) 20 J. Interpersonal Violence 270, Application Record, Vol. 30, Tab 64(G), p. 8679. 1043 Melissa Farley, Prostitution and Trafficking in Nevada, Application Record, Vol. 32, Tab 65(G), p. 9286. 1044 Barbara G. Brents and Kathryn Hausbeck, “Violence and Legalized Brothel Prostitution in Nevada” (2005) 20 J. Interpersonal Violence 270, Application Record, Vol. 30, Tab 64(G), p. 8671.

196 of 243 known or suspected transmission, Farley recounts the story of sex worker who stated that she had observed some 30 women over five months leave a brothel in tears after meeting with a nurse, and that this led the observer to “conclude that these women had contracted HIV or another STD from johns during that period of time.”1045

1045 Melissa Farley, Prostitution and Trafficking in Nevada, Application Record, Vol. 32, Tab 65(G), p. 9284.

197 of 243 PART III – ISSUES AND THE LAW

1. Issues

425. It is trite law that there are three distinct interests protected by s. 7 of the Charter: "life, liberty and security of the person" are separate interests, each to be given independent significance by the court. Where legislation serves to deprive an individual of any one of these interests, a court must then determine if the deprivation is in accordance with the principles of fundamental justice.

426. It is respectfully submitted that the threshold question under s.7 of whether s.210 (bawdy house), s.212 (1)(j) (living on avails) and s.213(1)(c) (communication), deprive the Applicants of life, liberty or security has already been addressed by the Supreme Court of Canada in 1990 in assessing the constitutionality of s.210 and s.213(1)(c). The Court noted: “With respect to the first component, there is a clear infringement of liberty in this case given the possibility of imprisonment contemplated by the impugned provisions.” Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123 at para. 14

427. In addition, it is respectfully submitted that the impugned provisions deprive the Applicants of “security of the person”. The Supreme Court has clearly held that state interference with bodily integrity and serious state-imposed psychological stress could trigger a restriction of security of the person. As noted by Mr. Justice Sopinka in 1993:

In my view, then, the judgments of this Court in Morgentaler can be seen to encompass a notion of personal autonomy involving, at the very least, control over one's bodily integrity free from state interference and freedom from state- imposed psychological and emotional stress. In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, Lamer J. also expressed this view, stating at p. 1177 that "[s]ection 7 is also implicated when the state restricts individuals' security of the person by interfering with, or removing from them, control over their physical or mental integrity". There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. R. v. Rodriguez, [1993] 3 S.C.R. 519 at 587-588 R. v. Morgentaler, [1988] 1 S.C.R. 30 at 56 R. v. Parker (2000), 146 C.C.C (3d) 193 (Ont. C.A.) at paras. 93-97, 105-111 R. v. Hitzig (2003), 177 C.C.C. (3d) 449 (Ont. C.A.) at para. 94

198 of 243 428. In light of the fact that these provisions constitute an obvious deprivation of liberty, it is not strictly necessary for this Honourable Court to find a deprivation of security in order to proceed to an analysis of the principles of fundamental justice.

429. Putting aside this threshold issue, it is respectfully submitted that there are five constitutional questions raised by this Application. The first four questions relate to whether ss. 210, 212(1)(j) and 213(1)(c) are inconsistent with the principles of fundamental justice under s.7 of the Charter of Rights, and the fifth question relates solely to the application of s.1 of the Charter to s.213(1)(c) - a provision which has been ruled to violate s.2(b) (freedom of expression) by the Supreme Court of Canada in 1990 in Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code, supra.

1. Whether the right to liberty and security has been deprived in a manner not in accordance with the principles of fundamental justice and the rule of law because the impugned provisions create an alliance between the Government and the black market whereby the government permits the lawful pursuit of prostitution but forces the prostitute to rely upon a black market, the criminal element, to supply the services needed to conduct this business in a safe and secure environment?

2. Whether the right to liberty and security has been deprived in a manner not in accordance with the principles of fundamental justice because these provisions are arbitrary in that “the deprivation of the right in question does little or nothing to enhance the state’s interest”? (Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519 at 594)

3. Whether the right to liberty and security has been deprived in a manner not in accordance with the principles of fundamental justice because the provisions are overbroad in that they overshoot the mark by extending the criminal law to activities which are not rationally connected to the state objectives underlying the prohibitions?

4. Whether the right to liberty and security has been deprived in a manner not in accordance with the principles of fundamental justice because these provisions are “arbitrary” as measured by the test of “gross disproportionality” as defined in R. v. Caine/Malmo-Levine [2003] 3 S.C.R. 571?

5. Whether in light of new evidence, not available to the Supreme Court of Canada in 1990, demonstrating that the communication law is ineffective and is not serving its stated objectives, s.213(1)(c) can no longer be upheld as a s.1 reasonable limit on the fundamental freedom of expression?

199 of 243 2. Purpose, Effect and Reasonable Hypotheticals

430. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. As noted by the Supreme Court of Canada in 1985:

In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.... I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test.... Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 331, 334

431. The constitutional challenge in the case at bar relates to the effects, individually and collectively, of the three impugned provisions. Based upon the evidence outlined in the Statement of Facts, it is submitted that the demonstrated effect of these provisions is to materially contribute to an increased risk of harm by preventing sex trade workers from resorting to safer legal options for the pursuit of the legal act of selling sexual services. This challenge does not question the constitutional validity of the purpose or objective underlying the impugned provisions, but rather challenges the means chosen to achieve these legislative objectives.

432. It is respectfully submitted that the question of whether the laws contribute to an increased risk of harm can be answered in one of two ways. First, it is submitted that the evidence outlined in the Statement of Facts clearly demonstrates that the law operates in a manner which prevents sex trade workers from taking rudimentary and necessary precautions to increase their safety and protect their physical integrity. Second, even if this Honourable Court does not find that the evidence demonstrates this unconstitutional effect, it is submitted that this finding can be made on the basis of the construction of a “reasonable hypothetical”. Although the Supreme Court of Canada has warned that constitutional issues not be argued in an “evidentiary vacuum” and that a constitutional challenge be fully animated by the relevant adjudicative and legislative facts, the Court has also permitted challenges to laws to proceed on the basis of speculation and hypothesis relating to how the law could potentially violate Charter rights. The reasonable hypothetical methodology was first used for demonstrating that a

200 of 243 mandatory minimum sentence could constitute a cruel and unusual punishment as applied to a hypothetical accused, but it has since been applied to other s.7 claims relating to full answer and defence and overbreadth (but not to vagueness challenges). Demonstrating that a law is unconstitutional in terms of its effects on the basis of its potential application and operation is an acceptable mode of proof unless the hypotheticals are “far-fetched”, “remote” or “marginally imaginable”.

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at para. 31 MacKay v. Manitoba, [1989] 2 S.C.R. 357 at paras. 7, 9 R. v. Smith (1987), 34 C.C.C. (3d) 97 (S.C.C.) R. v. Morrissey [2000] 2 S.C.R. 90 at paras. 50-53 R. v. Heywood [1994] 3 S.C.R. 761 at para. 62 R. v. Mills (2000), 139 C.C.C. (3d) 321 (S.C.C.) at 351 R. v. Canadian Pacitic Ltd.[1995] 2 S.C.R. 1031 R. v. Goltz (1991), 67 C.C.C. (3d) 481 (S.C.C.) at para. 42 Mussani v. College of Physicians & Surgeons (Ontario) (2004), 74 O.R. (3d) 1 (Ont. C.A.) at para. 75.

433. It is respectfully submitted that in challenging the legislative means to achieve a state objective, whether by invoking arbitrariness, overbreadth or gross disproportionality, it is necessary for the Court to undertake a proportionality analysis. The Supreme Court of Canada has noted that constitutional adjudication by means of “reasonable hypotheticals” is necessary and ideally suited for the assessment of proportionality:

The analysis of overbreadth under s. 7, and of cruel and unusual treatment or punishment under s. 12, are quite different from vagueness analysis. Where a party alleges that a law is overbroad, or that punishment is cruel and unusual, a court must engage in proportionality analysis. In Goltz, supra, for example, I discussed the test for determining violations of s. 12 of the Charter, and stated, at p. 498, "that a sentence which is grossly or excessively disproportionate to the wrongdoing would infringe s. 12". Cory J. asserted a similar proportionality test in Heywood, supra, at p. 793: "The effect of overbreadth is that in some applications the law is arbitrary or disproportionate".

Proportionality analysis involves an assessment of whether a law, the terms of which are not vague, applies in a proportionate manner to a particular fact situation. Inevitably, courts will be required to compare the law with the facts. In that situation, the use of reasonable hypotheticals will be of assistance, and may be unavoidable (Goltz, supra, at p. 515).

In the context of vagueness, proportionality plays no role in the analysis. There is no need to compare the purpose of the law with its effects (as in overbreadth), or

201 of 243 to compare the punishment with the wrongdoing (as with cruel and unusual punishment). A court is required to perform its interpretive function, in order to determine whether an impugned provision provides the basis for legal debate. Given this, I see no role for the consideration of reasonable hypotheticals in vagueness analysis. R. v. Canadian Pacitic Ltd., supra at paras. 80-82

3. The Legislative Objectives

434. In light of the fact that the s.7 arguments raised in this case call into question the means chosen by Parliament to achieve its objectives, it is essential to properly identify the state objective underlying each of the impugned provisions.

A. Communication – Section 213(1)(c)

435. It is respectfully submitted that the state objective underlying the street prostitution offences is narrow in scope. As outlined in paragraphs 240 to 251 of the Statement of Facts (“Government Debates and Government Reports Since 1972”), the enactment of s.213(1)(c) was designed to be an interim measure to deal with a perceived increase in street prostitution. As was stated by the Minister of Justice in introducing the enactment, “The bill is addressed to the problem of street prostitution. It is not addressed to the whole social problem of prostitution….As I have said before, the complicated, social problem of prostitution…these issues are going to be dealt with in the new year”. Despite assurances that Parliament would enact legislation in the future to deal comprehensively with the “social problem of prostitution”, no new legislation has been passed since 1985. Minutes of the Proceedings and Evidence of the Legislative Committee on Bill C-49, Application Record, Vol. 73, Tab 155(1), p. 21713

436. The limited state objective underlying the communication offence was confirmed by the Supreme Court of Canada in the Prostitution Reference, supra. The clear majority of the court concluded that the prostitution laws were designed to protect against street and social nuisance (i.e public visibility), and as stated by Chief Justice Dickson: “the legislation is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view.” Only one judge, Justice Lamer (as he then was), concluded that the enactment has a more expansive objective which extends to additional objective of “minimizing the public exposure of an activity that is degrading to women, with the hope that potential entrants in the trade can be deflected at

202 of 243 an early stage”. The following lengthy excerpts capture the conclusions of the Court with respect to critical issue of the relevant state objectives:

Chief Justice Dickson (Justice LaForest and Justice Sopinka concurring):

The first step in the analysis, established in R. v. Oakes, [1986] 1 S.C.R. 103, 50 C.R. (3d) 1, 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, 19 C.R.R. 308, 14 O.A.C. 335, 65 N.R. 87, to assess the justification pursuant to s. 1 for a Charter violation is to characterize the legislative objective of the impugned provision. Like Wilson J., I would characterize the legislative objective of s. 195.1(1)(c) in the following manner: the provision is meant to address solicitation in public places and, to that end, seeks to eradicate the various forms of social nuisance arising from the public display of the sale of sex. My colleague Lamer J. finds that s. 195.1(1)(c) is truly directed towards curbing the exposure of prostitution and related violence, drugs and crime to potentially vulnerable young people, and towards eliminating the victimization and economic disadvantage that prostitution, and especially street soliciting, represents for women. I do not share the view that the legislative objective can be characterized so broadly. In prohibiting sales of sexual services in public, the legislation does not attempt, at least in any direct manner, to address the exploitation, degradation and subordination of women that are part of the contemporary reality of prostitution. Rather, in my view, the legislation is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view.

… The Criminal Code provision subject to attack in these proceedings clearly responds to the concerns of home-owners, businesses, and the residents of urban neighbourhoods. Public solicitation for the purposes of prostitution is closely associated with street congestion and noise, oral harassment of non-participants and general detrimental effects on passers-by or bystanders, especially children. In my opinion, the eradication of the nuisance-related problems caused by street solicitation is a pressing and substantial concern. I find, therefore, that sending the message that street solicitation for the purposes of prostitution is not to be tolerated constitutes a valid legislative aim.

Justice Lamer:

One of the primary objectives of s. 195.1(1)(c) is to curb the nuisances caused by the public or "street" solicitation of prostitutes and their customers. These nuisances include impediments to pedestrian and vehicular traffic, as well as the general confusion and congestion that is accompanied by an increase in related criminal activity, such as possession of and trafficking in drugs, violence and pimping. The nuisance aspect of the law as it relates to traffic problems is not, however, its only objective. There are many activities that are carried on that cause nuisance in the form of obstructing pedestrian and vehicular traffic. In this case, however, we are dealing with a particular form of activity that brings with it other associated criminal activity, and which, as the Ontario Advisory Council on

203 of 243 the Status of Women states, is at its most basic level a form of slavery. In a brief prepared in 1984, entitled Pornography and Prostitution, the advisory council had the following to say in respect to prostitution: There is a real victim in prostitution -- the prostitute herself. All women, children and adolescents are harmed by prostitution ... Prostitution functions as a form of violence against women and young persons. It is certainly a blatant form of exploitation and abuse of power ... Prostitution is related to the traditional dominance of men over women. The various expressions of this dominance include a concept of women as property and the belief that the sexual needs of men are the only sexual desires to be given serious consideration. Prostitution is a symptom of the victimization and subordination of women and of their economic disadvantage.

… I note that, while prostitution is an activity in which both men and women participate, the data indicates that women overwhelmingly outnumber men as sellers of sexual services. In my view part of the legislative objective in enacting s. 195.1(1)(c) is to give law enforcement officials a way of controlling prostitution that occurs in the "street", as it were. It is in the street that many prostitutes begin the trade as young runaways from home. The streets provide an environment for pimps and procurers to attract adults (usually, as the data shows, women) and adolescents into the trade by befriending them and often offering them short term affection and economic assistance. Quite often it is the young who are most desirable to pimps, as they bring in the most money and are the easiest to control. This leads ultimately to a relationship of dependency, which is often reinforced by the pimp getting the prostitute addicted to drugs, which are used to exercise control over the prostitute. In that process the pimp's control over the prostitute is such that physical violence and in some cases brutality is not uncommon. Prostitution, in short, becomes an activity that is degrading to the individual dignity of the prostitute and which is a vehicle for pimps and customers to exploit the disadvantaged position of women in our society. In this regard the impugned section aims at minimizing the public exposure of this degradation, especially to young runaways who seek refuge in the streets of major urban centres, and to those who are exposed to prostitution as a result of the location of their homes and schools in areas frequented by prostitutes and who may be initially attracted to the "glamorous" lifestyle as it is described to them by the pimps. Further, it is not just the exposure to potential entrants into the trade that is of concern to the legislators. An additional aspect of the objective of minimizing public exposure of prostitution is the fact that many persons who are not interested in prostitution are often propositioned, either as prostitutes or as prospective customers.

… In sum, then, I find that the legislative objectives of the section go beyond merely preventing the nuisance of traffic congestion and general street disorder. There is the additional objective of minimizing the public exposure of an activity that is degrading to women, with the hope that potential entrants in the trade can be deflected at an early stage, and to restrict the blight that is associated with public solicitation for the purposes of prostitution.

204 of 243

Justice Wilson (Justice L’Heureux-Dubé concurring):

… Lamer J. finds that the legislature's objective goes beyond preventing congestion in the streets and sidewalks; it has the additional objective of restricting the entry of young girls into an activity that is degrading to women and is associated with drugs, crime and physical abuse.

… While I do not disagree with my colleague that prostitution is, for the reasons he gives, a degrading way for women to earn a living, I cannot agree with his conclusion that s. 195.1(1)(c) of the Code attempts to address that problem.

… I have concluded that the submissions made to the court by the majority of counsel are correct and that the fundamental concern attempted to be addressed in s. 195.1(1)(c) is the social nuisance arising from the public display of the sale of sex. I believe this is clear from the requirement that the communication or attempted communication be for the purchase or sale of sexual services and that such communication occur in a public place or in a place open to public view. Parliament's concern, I believe, goes beyond street or sidewalk congestion, which is dealt with in paras. (a) and (b). The legislature clearly believes that public sensitivities are offended by the sight of prostitutes negotiating openly for the sale of their bodies and customers negotiating, perhaps somewhat less openly, for their purchase. The reality, in other words, is accepted and permitted. Neither prostitution nor solicitation is made illegal. But the high visibility of these activities is offensive and has harmful effects on those compelled to witness it, especially children. This being the legislative approach to prostitution, it forecloses, in my view, any suggestion that in s. 195.1(1)(c) Parliament intended to stamp out all the ills and vices that my colleague sees as flowing from prostitution. The provision addresses only one narrow aspect of prostitution, namely, solicitation in public places. Reference Re ss.193 and 195.1(1)(c) of the Criminal Code, supra at paras. 2, 3, 94-96, 125, 126, 128

B. Bawdy House – Section 210

437. In modern times there has been little or no judicial or legislative discussion of the state objectives underlying the bawdy house offences. Keeping a common bawdy house has been an offence since the enactment of the 1892 Criminal Code, and the offence has been part of British common law for hundreds of years. At common law, disorderly houses were considered a public nuisance. In the 17th century, Lord Coke noted that this common nuisance offence was “the cause of many mischiefs, not only to the overthrow of bodies, and wasting of their livelihoods, but to the engendering of their souls”. In the 18th century Hawkins noted that the offence is “a common nuisance not only in respect of its endangering the public peace by drawing together dissolute

205 of 243 and debauched persons, but also in respect of its apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness”. Finally, Sir William Blackstone noted that “all disorderly inns, or ale-houses, bawdy-houses, gaming houses…are public nuisances”. Edward Coke, The Third Part of the Institutes of the Laws of England (Buffalo, W.S. Hein, 1986) at p. 204 William Hawkins, Pleas of the Crown 1716-1721, Vol. 1 (London: Professional Books Ltd., 1973) at p. 196 William Blackstone, Commentaries on the Law of England 1st ed. (London: Dawson, 1966) at pp. 823-824

438. The history of the incorporation of this common law offence into Canadian criminal law has been outlined by Justice L’Heureux-Dube in 1991:

The offences in question here find their roots in ancient English criminal law. The provisions of the Disorderly Houses Act (U.K.), 25 Geo. 2, c. 36, laid the foundation for similar offences in the present Criminal Code. In particular, the present definition of "keeper" in s. 197(1) finds its antecedent in s. VIII in the 1752 Act, which read:

VIII. And whereas, by reason of the many subtle and crafty Contrivances of Persons keeping Bawdy-houses, Gaming-houses or other disorderly Houses, it is difficult to prove who is the real Owner or Keeper thereof, by which Means many notorious Offenders have escaped Punishment; Be it enacted by the Authority aforesaid, That any Person who shall at any Time hereafter appear, act or behave him or herself as Master or Mistress, or as the Person having the Care, Government or Management of any Bawdy-house, Gaming-house or other disorderly House, shall be deemed and taken to be the Keeper thereof, and shall be liable to be prosecuted and punished as such, notwithstanding he or she shall not in Fact be the real Owner or Keeper thereof.

In Canada, bawdy-house offences may be traced back to An Act respecting Vagrants, S.C. 1869, c. 28, which was passed by Parliament in 1869 and later incorporated into the original Criminal Code. It is interesting to note that the original Criminal Code created different offences in different Parts of the Code for a person who "keeps" any disorderly house (including a common bawdy- house), and for the "keeper" of a common bawdy-house, who was considered a vagrant. Part XIV of the Criminal Code, 1892, S.C. 1892, c. 29, was entitled "Nuisances", and created the following offences:

195. A common bawdy-house is a house, room, set of rooms or place of any kind kept for purposes of prostitution.

206 of 243 198. Every one is guilty of an indictable offence and liable to one year's imprisonment who keeps any disorderly house, that is to say, any common bawdy-house, common gaming-house or common betting-house, as hereinbefore defined.

2. Any one who appears, acts, or behaves as master or mistress, or as the person having the care, government or management, of any disorderly house shall be deemed to be the keeper thereof, and shall be liable to be prosecuted and punished as such, although in fact he or she is not the real owner or keeper thereof.

Part XV, entitled "Vagrancy", contained these sections:

207. Every one is a loose, idle or disorderly person or vagrant who -- ...

(j.) is a keeper or inmate of a disorderly house, bawdy-house or house of ill-fame, or house for the resort of prostitutes;

208. Every loose, idle or disorderly person or vagrant is liable, on summary conviction before two justices of the peace, to a fine not exceeding fifty dollars or to imprisonment, with or without hard labour, for any term not exceeding six months, or to both. R. v. Corbeil, [1991] 1 S.C.R. 830 at paras. 24-26

439. It is respectfully submitted that the bawdy house offences were predicated on two state objectives: preventing a common nuisance and preventing the dissolution of moral values. As was said by the Alberta Court of Appeal in 1921: “the purpose of the provision in question is obviously to check immorality”. In 1908 it was noted by the court that “the gist of the offence of keeping a common bawdy house is that it is an offence to the public or a public nuisance, offensive to the public and dangerous to the morals of the community”. However, in the modern era the secondary objective of protecting moral virtue can no longer be considered valid. First, in 1915 the historical conflation of bawdy house and vagrancy was ended such that the bawdy house offence was firmly grounded in the nuisance provisions of the Code without reference to a connection with the moral outcast known as a vagrant. More significantly, as will be discussed in the next section, it is no longer considered constitutionally valid to justify criminal law on the basis of “legal moralism”. R. v. Jones (1921), 36 C.C.C. 208 (Alta.C.A.) at 209 R. v. Mercier (1908), 13 C.C.C. 475 (Yuk. Terr. Ct.) at 485

207 of 243 An act to Amend the Criminal Code (1915), Application Record, Vol. 66, Tab 145, p. 19395

C. Living on the Avails – Section 212(1)(j)

440. As with the bawdy house offences, there is little judicial or legislative discussion of the objectives underlying this offence; however, it is clear by its placement in s.212, along with other offences relating to control and manipulation of sex trade workers, that the objective underlying this offence is to prevent exploitation by controlling the actions of sex trade workers, or by manipulating people into entering the trade. The conflation of those living on avails with the status of “pimp” was noted by Mr. Justice Cory:

It can be seen that the majority of offences outlined in s. 195 are aimed at the procurer who entices, encourages or importunes a person to engage in prostitution. Section 195(1)(j) is specifically aimed at those who have an economic stake in the earnings of a prostitute. It has been held correctly, I believe, that the target of s. 195(1)(j) is the person who lives parasitically off a prostitute's earnings. That person is commonly and aptly termed a pimp: see R. v. Grilo (1991), 2 O.R. (3d) 514, 5 C.R. (4th) 113, 64 C.C.C. (3d) 53, 44 O.A.C. 284 (C.A.); R. v. Celebrity Enterprises Ltd. (1977), [1978] 2 W.W.R. 562, 41 C.C.C. (2d) 540 (B.C.C.A.); and Shaw v. Director of Public Prosecutions, [1962] A.C. 220, 45 Cr. App. R. 113, [1961] 2 All E.R. 446 (H.L.).

A reading of the reports such as those of the Fraser Committee and the Badgley Committee emphasizes the tragedy and the gravity of the social problem posed by prostitution. As well, they carefully document the cruel, pernicious and exploitative evil of the pimp. R. v. Downey, [1992] 2 S.C.R. 10 at paras. 50-51

4. A Proper Understanding of Constitutionally Valid Legislative Objectives

441. It is respectfully submitted that the impugned provisions cannot be grounded or justified upon the basis of an evaluation of the moral worth of the act of selling sexual services. Although the Supreme Court of Canada has concluded that Parliament can validly take action to protect and preserve “core values”, in the modern era it no longer has authority to enact laws based solely on the values of a moral majority. The rejection of “legal moralism” as a valid foundation for the enactment of criminal law was expressed in the context of a challenge to the pornography provisions of the Code:

… To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and

208 of 243 enjoyment of individual freedoms, which form the basis of our social contract. D. Dyzenhaus, "Obscenity and the Charter: Autonomy and Equality" (1991), 1 C.R. (4th) 367 at p. 270, refers to this as "legal moralism," of a majority deciding what values should inform individual lives and then coercively imposing those values on minorities. The prevention of "dirt for dirt's sake" is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter. R. v. Butler (1992) 70 C.C.C. (3d) 129 (S.C.C.) at para. 81 R. v. Caine; R. v. Malmo-Levine, supra at para. 115-122

442. The rejection of legal moralism can be seen most clearly in the dramatic re-fashioning of the elements of the offence of “keep common bawdy house for the purposes of indecency” by the Supreme Court of Canada in 2005. With respect to the question of whether a “sex club” for “swingers” can be characterized as a bawdy house, the Court replaced the traditional “community standards” test for determining indecency with a harm-based test grounded in secular values. It is submitted that both the letter and spirit of this 2005 decision leads to the conclusion that the sex trade offences must be justified on the basis of social harm and not on the basis of moral objection to the trade itself. The following excerpt provides strong support for the assertion that the objectives of the sex trade offences must be recast in terms of the harm-based considerations enumerated below:

Indecency has two meanings, one moral and one legal. Our concern is not with the moral aspect of indecency, but with the legal. The moral and legal aspects of the concept are, of course, related. Historically, the legal concepts of indecency and obscenity, as applied to conduct and publications, respectively, have been inspired and informed by the moral views of the community. But over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices. This led to a legal norm of objectively ascertainable harm instead of subjective disapproval.

… To ground criminal responsibility, the harm must be one which society formally recognizes as incompatible with its proper functioning: Butler, at p. 485.

… The requirement of formal societal recognition makes the test objective. The inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its fundamental laws, has recognized as essential. Views about the harm that the sexual conduct at issue may produce, however widely held, do not suffice to ground a conviction. This is not to say that social values no longer have a role to play. On the contrary, to ground a finding that acts are indecent, the harm must be shown to be related to a

209 of 243 fundamental value reflected in our society's Constitution or similar fundamental laws, like bills of rights, which constitutes society's formal recognition that harm of the sort envisaged may be incompatible with its proper functioning. Unlike the community standard of tolerance test, the requirement of formal recognition inspires confidence that the values upheld by judges and jurors are truly those of Canadian society. Autonomy, liberty, equality and human dignity are among these values.

… Reference to the fundamental values of our Constitution and similar fundamental laws also eliminates types of conduct that do not constitute a harm in the required sense. Bad taste does not suffice: Towne Cinema Theatres Ltd., p. 507. Moral views, even if strongly held, do not suffice. Similarly, the fact that most members of the community might disapprove of the conduct does not suffice: Butler, p 492. In each case, more is required to establish the necessary harm for criminal indecency. R. v. Labaye [2005] 3 SCR 728, at paras. 14, 32, 33, 37

443. In light of this apparent changing perspective on valid criminal law objectives, the Court formulated a new test inspired and animated by the harm principle:

The first step is to generally describe the type of harm targeted by the concept of indecent conduct under the Criminal Code. In Butler at p. 485 and Little Sisters at para. 59, this was described as “conduct which society formally recognizes as incompatible with its proper functioning”. Two general requirements emerge from this description of the harm required for criminal indecency. First, the words “formally recognize” suggest that the harm must be grounded in norms which our society has recognized in its Constitution or similar fundamental laws. This means that the inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its laws and institutions, has recognized as essential to its proper functioning. Second, the harm must be serious in degree. It must not only detract from proper societal functioning but must be incompatible with it....

...Three types of harm have thus far emerged from the jurisprudence as being capable of supporting a finding of indecency: (1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti-social conduct; (3) harm to individuals participating in the conduct. Labaye, supra at paras. 28-29, 36

444. Ironically, to prove that a bawdy house was kept for indecent purposes, the Crown must now present evidence akin to the type of legislative facts tendered in this case:

Incompatibility with the proper functioning of society is more than a test of tolerance. The question is not what individuals or the community think about the

210 of 243 conduct, but whether permitting it engages a harm that threatens the basic functioning of our society. This ensures in part that the harm be related to a formally recognized value, at step one. But beyond this it must be clear beyond a reasonable doubt that the conduct, not only by its nature but also in degree, rises to the level of threatening the proper functioning of our society.

Whether it does so must be determined by reference to the values engaged by the particular kind of harm at stake. If the harm is based on the threat to autonomy and liberty arising from unwanted confrontation by a particular kind of sexual conduct, for example, the Crown must establish a real risk that the way people live will be significantly and adversely affected by the conduct. The number of people unwillingly exposed to the conduct and the circumstances in which they are exposed to it are critical under this head of harm. If the only people involved in or observing the conduct were willing participants, indecency on the basis of this harm will not be made out.

If the harm is based on predisposing others to anti-social behaviour, a real risk that the conduct will have this effect must be proved. Vague generalizations that the sexual conduct at issue will lead to attitudinal changes and hence anti-social behaviour will not suffice. The causal link between images of sexuality and anti- social behaviour cannot be assumed. Attitudes in themselves are not crimes, however deviant they may be or disgusting they may appear. What is required is proof of links, first between the sexual conduct at issue and the formation of negative attitudes, and second between those attitudes and real risk of anti-social behaviour.

Similarly, if the harm is based on physical or psychological injury to the participants, it must again be shown that the harm has occurred or that there is a real risk that this will occur. Witnesses may testify as to actual harm. Expert witnesses may give evidence on the risks of potential harm. In considering psychological harm, care must be taken to avoid substituting disgust for the conduct involved, for proof of harm to the participants. In the case of vulnerable participants, it may be easier to infer psychological harm in cases where participants operate on an equal and autonomous basis.

These are matters that can and should be established by evidence, as a general rule. Labaye, supra at paras. 56-60

445. In light of the rejection of legal moralism, and development of the harm-based analysis adopted in the “sex club” cases, it is submitted that the state objectives underlying the impugned provisions can be simply stated. Reducing or eliminating social and street nuisance are the twin objectives supporting the communication offence. Preventing exploitation is the objective of all the “pimping” offences including living on the avails, and controlling common nuisance is the

211 of 243 goal underlying the bawdy house prohibition. In the modern era, the impugned provisions can no longer be seen as proper legislative tools for imposing a code of sexual morality on Canadians.

5. The Elements of the Impugned Provisions

A. Communication – Section 213(1)(c)

446. Since its enactment, the communication offence has not received a great deal of judicial interpretation. The primary element of “in any manner communicates for the purpose of engaging in prostitution or of obtaining the services of a prostitute” may be broad in scope but its meaning is fairly self-evident. In rejecting the argument that this provision is unconstitutionally vague, Lamer J. (as he then was) noted:

In my view, although broad and far reaching, the terms of the section are not vague. There is nothing about the language of the section that prevents a court from giving sensible meaning to its terms: see R. v. Edwards and Pine (1986), 32 C.C.C. (3d) 412 (B.C. Co. Ct.) and R. v. McLean (1986), 52 C.R. (3d) 262 (B.C.S.C.). In particular, the phrase "in any manner communicates", though very broad, clearly indicates to individuals that they must not by any means communicate for the purpose of prostitution or engaging the services of a prostitute. This type of all-inclusive language is not strange to the Criminal Code. I need only refer to the offence of fraud to make the point. Section 380(1) makes it an offence to defraud the public or any person by "deceit, falsehood or other fraudulent means" (emphasis added). Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code, supra at para. 46

447. It is clear that the plain meaning of the provision can be applied to situations and circumstances not constituting street or social nuisance. In her dissenting opinion regarding the application of s.1 of the Charter to the free expression violation created by s.213(1)(c), Madame Justice Wilson identified the ways in which the provision clearly extends beyond situations of street or social nuisance. This analysis of minimal impairment under s.1 is similar or identical to the analysis outlined in the next section of the Statement of Law for the determination of whether a law is arbitrary and thus violative of the principles of fundamental justice.

…In other words, the prohibition is not confined to places where there will necessarily be lots of people to be offended or inconvenienced by it. The prohibited communication may be taking place in a secluded area of a park where there is no-one to see or hear it. It will still be a criminal offence under the section. Such a broad prohibition as to the locale of the communication would seem to go far beyond a genuine concern over the nuisance caused by street solicitation in Canada's major centres of population. It enables the police to arrest

212 of 243 citizens who are disturbing no-one solely because they are engaged in communicative acts concerning something not prohibited by the Code. It is not reasonable, in my view, to prohibit all expressive activity conveying a certain meaning that takes place in public simply because in some circumstances and in some areas that activity may give rise to a public or social nuisance.

I note also the broad scope of the phrase "in any manner communicates or attempts to communicate". It would seem to encompass every conceivable method of human expression. Indeed, it may not be necessary for the prostitute to say anything at all in order to be found to be "communicating" or "attempting to communicate" for the purpose of prostitution. The proverbial nod or wink may be enough. Perhaps more serious, a hapless citizen may be picked up for soliciting when he or she has nothing more pressing in mind than hailing a taxi! While it is true that he or she may subsequently be let go as lacking the necessary intent for the offence, the experience of being arrested is not something the ordinary citizen would welcome. Some definitional limits would appear to be desirable in any activity labelled as criminal.

Directly relevant to the issue of proportionality, it seems to me, is the fact already referred to that under para. (c) no nuisance or adverse impact of any kind on other people need be shown, or even be shown to be a possibility, in order that the offence be complete. Yet communicating or attempting to communicate with someone in a public place with respect to the sale of sexual services does not automatically create a nuisance any more than communicating or attempting to communicate with someone on the sidewalk to promote a candidate for municipal election. Moreover, as already mentioned, prostitution is itself a perfectly legal activity and the avowed objective of the legislature was not to make it illegal but only, as the Minister of Justice emphasized at the time, to deal with the nuisance created by street solicitation. It seems to me that to render criminal the communicative acts of persons engaged in a lawful activity which is not shown to be harming anybody cannot be justified by the legislative objective advanced in its support. The impugned provision is not sufficiently tailored to that objective and constitutes a more serious impairment of the individual's freedom than the avowed legislative objective would warrant. Section 195.1(1)(c) therefore fails to meet the proportionality test in Oakes. Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code, supra at paras. 135-137

B. Bawdy House – Section 210

448. Since 1892 the Criminal Code has prohibited the “keeping” of a bawdy house for the purpose of prostitution. In 1913 the Code extended liability to landlords who permit the operation of bawdy houses and persons “found-in” the disorderly house (i.e. clients). In 1915 liability was extended to “inmates” (employees). The definition of keeping and of “keeper” has

213 of 243 been modified and expanded on a number of occasions; however, the definition of keeper is not the source of the constitutional infirmity. The source of infirmity lies in the failure to require proof of any element in the nature of disorder, nuisance or exploitation. An act to Amend the Criminal Code (1913), Application Record, Vol. 66, Tab 144, p. 19347 An act to Amend the Criminal Code (1915), Application Record, Vol. 66, Tab 145, p. 19395

449. In 1967, the Supreme Court of Canada ruled that a place could not constitute a bawdy house unless it was resorted to on a “habitual and frequent” basis. The Court reached this conclusion by noting that at common law there were three ways to prove a premise was a bawdy house, and each mode of proof appears to suggest that there must be some degree of public exposure and annoyance being created by the presence of the home:

I have considered all the cases cited and I have noted that there has been evidence, in each case where conviction has resulted, of one of three types,

firstly, there has been actual evidence of the continued and habitual use of the premises for prostitution as in The King v. Cohen [[1939] S.C.R. 212, 71 C.C.C. 142, 1 D.L.R. 396.] and Rex v. Miket [[1938] 2 W.W.R. 459, 70 C.C.C. 202, 53 B.C.R. 37, 3 D.L.R. 710.],

secondly, there has been evidence of such circumstances as to make the inference that the premises were resorted to habitually as a place of prostitution, a proper inference for the court to draw from such evidence.

thirdly, there has been evidence of such circumstance as to make the inference that the premises were resorted to habitually as a place of prostitution, a proper inference for the court to draw from such evidence. R. v. Patterson [1968] S.C.R. 157 at 161

450. It is submitted that the imposition of the element of “habitual and frequent” was a recognition by the Court that the offence must have some foundation in nuisance, and that habitual use would serve as a proxy for proof of disorder and community disruption. However, a review of all reported cases since 1972 ) ( the enactment of “soliciting” offence) available on Quicklaw, Westlaw and the C.C.C. index clearly demonstrates that in the vast majority of bawdy house cases there is no evidence of nuisance, in terms of community complaints, and no evidence of exploitation of employees. Of 38 cases reviewed only 10 cases had some clear evidence suggesting nuisance of exploitation, with the exploitation consisting of employers

214 of 243 fining sex trade workers and attempting to obtain free sexual services (Juneja; McNab), and the evidence of nuisance being drawn as an inference from the existence of a complaint from a member of the public (Badali; Klaus; Nguyen). One case involved trafficking (Ng; Saengchanh) and one case involved under-age prostitution (Suen; Zakreski; Carroll). R. v. Juneja, 2009 ABQB 243; R. v. Huang, 2008 BCPC 250; R. v. Ng, 2007 BCPC 204; R. v. Ponomarev, [2007] O.J. No. 271 (Ct. Jus.); R. v. Tannenbaum, [2006] M.J. No. 156 (Q.B.); R. v. Badali, [2005] O.J. No. 5802 (Ct. Jus.); R. v. Saengchanh (2004), 51 Imm. L.R. (3d) 91 (Alta. Prov. Ct.); R. v. Zakreski (2004), 362 A.R. 10 (Prov. Ct.); R. v. Ni (2002), 158 O.A.C. 230 (C.A.); R. v. Caringi, [2002] O.J. No. 2367 (Ct. Jus.); R. v. Yeung, [2001] B.C.J. No. 2045 (Prov. Ct.); R. v. St-Onge (2001), 155 C.C.C. (3d) 517 (Que. C.A.); R. v. Bedford (2000), 143 C.C.C. (3d) 311 (Ont. C.A.); R. v. MacNab (2000), 264 A.R. 76 (Prov. Ct.); R. v. Carroll (1999), 118 B.C.A.C. 219 (C.A.); R. v. Klaus, [1998] O.J. No. 6513 (Ct. Jus. (Prov. Div.)); R. v. Brandes, [1997] O.J. No. 5443 (Ct. Jus. (Prov. Div.)); R. v. Mohammed, [1996] B.C.J. No. 1285 (C.A.); R. v. Webb, [1995] S.J. No. 252 (Q.B.); R. v. Suen, [1995] O.J. No. 4409 (Ct. Jus. (Prov. Div.)); R. v. Tardif (1995), 97 C.C.C. (3d) 381 (Que. C.A.); R. v. Guan; R. v. Soh; R. v. Look, [1992] O.J. No. 2588 (Ct. Jus. (Prov. Div.)); R. v. Habib (1992), 135 A.R. 162 (C.A.); R. v. Nguyen (1992), 16 W.C.B. (2d) 447 (Ont. Ct. Jus. (Prov. Div.)); R. v. Corbeil, [1991] 1 S.C.R. 860; R. v. Woszczyna (1983), 6 C.C.C. (3d) 221 (Ont. C.A.); R. v. Pierce and Golloher (1982), 66 C.C.C. (2d) 388 (Ont. C.A.); R. v. Yee, [1982] B.C.J. No. 1905 (C.A.); R. v. McLellan (1980), 55 C.C.C. (2d) 543 (B.C.C.A.); R. v. Ikeda (1978), 42 C.C.C. (2d) 195 (Ont. C.A.); R. v. Ramberran, [1978] 1 W.W.R. 19 (Man. Prov. Ct.); R. v. Wong (1977), 33 C.C.C. (2d) 6 (Alta. S.C.A.D.); R. v. Broccolo (1976), 30 C.C.C. (2d) 540 (Ont. Prov. Ct.); R. v. Barrie (1975), 25 C.C.C. (2d) 216 (Ont. Co. Ct.); R. v. Baskind (1975), 23 C.C.C. (2d) 368 (Que. C.A.); R. v. Evans (1973), 11 C.C.C. (2d) 130 (Ont. C.A.); R. v. Laliberté (1973), 12 C.C.C. (2d) 109 (Que. C.A.); R. v. Worthington (1972), 10 C.C.C. (2d) 311 (Ont. C.A.)

451. It is acknowledged that a review of these cases cannot provide conclusive proof of the absence of nuisance or exploitation within the indoor trade as it will always remain unclear if the reported decision recited all the facts raised a trial; nonetheless, it must also be recognized that courts have looked to reported cases for providing the“reasonable hypotheticals” required for analysis of s.7 and s.12 violations. R. v. Morrissey, supra at paras. 31-33

452. Finally, it must also be recognized that bawdy house liability does not simply extend to individuals engaged in an organized business venture. The law prohibits the Applicants and other sex trade workers from resorting to their home, or designated premises, as a safe haven for conducting their business. The size and sophistication of the operation is immaterial in the eyes

215 of 243 of the law, and habitual use of a premise by an individual sex trade worker will attract bawdy house liability.

R. v. Corbeil, [1991] 1 S.C.R. 830 at para. 32 R. v. Worthington (1972) 10 C.C.C. (3d) 311 (Ont.C.A.)

C. Living on the Avails – Section 212(1)(j)

453. Section 212 covers a wide range of exploitive conduct involving “procuring”, “enticing”, “concealing”, “exercising control, direction or influence” and “administering” drugs or stupefying substances. Subsection (1)(j) applies to “living on the avails” with the term “avails” being synonymous with “earnings”. This subsection has been applied in two broad categories: 1) to people who live with sex trade workers and take part or all of the sex trade worker’s earnings and 2) to people engaged in providing business services to sex trade workers.

454. In 1991, the Ontario Court of Appeal addressed the first scenario, i.e. live-in partners, and concluded that there must be a “parasitic” relationship in order for the live-in partner to incur criminal liability for taking some or all of the worker’s money. The Court stated that “the parasitic aspect of the relationship contains, in my view, an element of exploitation which is essential to the concept of living on the avails of prostitution”. Although the Court does not provide guidelines or criteria for determining when a relationship is parasitic, and not mutual or symbiotic, this decision is a clear attempt to ground the offence solidly within the state objective of combating exploitation in the sex trade. R. v. Grilo (1991), 64 C.C.C. (3d) 53 (Ont.C.A.) at 61

455. However, with respect to the second scenario of providing a business service the law does not require any evidence of exploitation. The test articulated by the House of Lords in 1961 in Shaw, infra, remains the applicable test: “a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid for goods and services supplied by him to them for the purpose of prostitution which he would not supply but for the fact that they were prostitutes”. The Ontario Court of Appeal in Grilo, supra, was careful to distinguish the live-in case from the business operation cases:

Neither Shaw nor Celebrity Enterprises, supra, considered directly the situation at Bar. Both were concerned with the criminal responsibility, if any, of persons who supply services to prostitutes. Neither of these cases addressed directly the separate issue of the extent to which a person may derive benefits from living

216 of 243 with a prostitute before that person can be said to be living on the avails of prostitution. R. v. Grilo, supra at 60 Shaw v. Director of Public Prosecutions, [1961] All ER 446 at 450 R. v. Celebrity Enteprises Ltd, [1977] 4 W.W.R. 144 at para. 38 (B.C. Co. Ct.)

456. In 2001, the Ontario Court of Appeal confirmed that the Shaw test still applied to the provision of business services and the Court upheld a conviction for a “supportive” manager because “her occupation is parasitic in that it would not exist if the escorts were not prostitutes”. This notion that the provision of any business service will be deemed to be parasitic if the service is exclusively offered only to sex workers has been accepted in other cases post-Grilo. R. v. Barrow (2001), 54 O.R. (3d) 417 (C.A.) at para. 23 R. v. Friesen (1995), 129 Sask. R. 223 (Q.B.) R. v. Ranville (1995), 129 Sask. R. 318 (Q.B.)

457. The fact that “living on the avails” extends to non-exploitive conduct is also demonstrated by sentencing decisions. An 86 year-old offender was sentenced to 15 months in 2006 for charging prostitutes a fee for working at his home and the Court noted that “there is no suggestion the accused engaged in violence or that the girls were under duress or were coerced in any manner by the accused”. An accused who operated an escort agency over several years was sentenced to 12 months in 2002 and it was noted “he did not use violence or intimidation and the trial judge found that the escorts joined the service of their own free will”. Finally, an accused who ran an escort service with an escort business license issued by the city was sentenced to a conditional discharge in 2005 and the court noted:

It is first to be noted that the activities of the accused are very different from those who commit the crime by being “pimps” (i.e. those who control the actions of a prostitute by reliance on a personal relationship with the prostitute, or by violence, or threats of violence). Those who are “pimps” live on the avails of prostitution by having a parasitic relationship with the prostitute….In the case at bar, the element of parasitism is absent” R. v. Odgers (2006) A.R. 322 (Prov. Ct.) at para. 8 R. v. Lucacko (2002) 59 O.R. (3d) 58 (Ont.C.A.) at para. 56 R. v. Manion (2005) 377 A.R. 95 (Prov.Ct.) at paras. 18-19

217 of 243 6. The Constitutional Violations

A. Introduction: Previous Challenges

458. In 1990 the Supreme Court of Canada dismissed a constitutional challenge to the communication and bawdy house offences. Three constitutional arguments were presented and rejected: first, it was held that these provisions were not unconstitutionally vague and thus did not violate s.7 of the Charter; second, the restriction on economic liberty created by these provisions did not constitute a deprivation of liberty as economic interests are not protected by s.7 of the Charter and, third, although the communication offence was found to violate expressive freedom under s.2(b) of the Charter, the provision was saved and upheld as a reasonable limit under s.1. It must be noted that this challenge proceeded as a court reference in the absence of many relevant adjudicative and legislative facts.

Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123

459. In dismissing the constitutional arguments raised in that case, the Supreme Court did recognize the irrationality and inherent contradictions found in the legislative regime; however, this recognition of irrationality was not factored into the constitutional analysis. It is submitted that the following comments made in the Reference are apposite to the case at bar and the reason why they had no impact on the analysis in the 1990 Reference is due to the fact that the constitutional vices of arbitrariness, overbreadth and gross disproportionality were all developed in cases decided years after resolution of the Reference. Chief Justice Dickson noted:

The second argument pertaining to the violation of the principles of fundamental justice rests on the fact that Parliament has chosen to control prostitution indirectly through the criminalization of certain activities of those involved instead of directly criminalizing prostitution itself. The principle of fundamental justice proffered in this regard is that it is impermissible for Parliament to send out conflicting messages whereby the criminal law says one thing but means another. Section 193 effectively prohibits the sale of sex in private settings while s. 195.1(1)(c) makes it impossible to negotiate in public for the sale of sex. It is argued that this legislative scheme attaches the stigma of criminalization to a lawful activity (communication) directed at the achievement of another lawful activity (sale of sex). The question is whether by creating a legal environment indirectly making it, in effect, impossible for a prostitute to sell sex, Parliament has offended the principles of fundamental justice.

218 of 243 While I recognize that Parliament has chosen a circuitous path, I find it difficult to say that Parliament cannot take this route. The issue is not whether the legislative scheme is frustrating or unwise but whether the scheme offends the basic tenets of our legal system. The fact that the sale of sex for money is not a criminal act under Canadian law does not mean that Parliament must refrain from using the criminal law to express society's disapprobation of street solicitation. Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code, supra at paras. 18- 19

460. In a similar vein, Justice Lamer (as he then was) noted:

I should like to point out at the outset something that may seem obvious to some, or which may come as a surprise to others, but which in any event needs to be kept in mind throughout: prostitution is not illegal in Canada. We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself….

In my view, these laws indicate that while on the face of the legislation the act of prostitution is not illegal, our legislators are indeed aiming at eradicating the practice. This rather odd situation wherein almost everything related to prostitution has been criminalized save for the act itself gives one reason to ponder why Parliament has not taken the logical step of criminalizing the act of prostitution Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code, supra at paras. 49, 93

461. In addition to the Reference, there have been three additional constitutional challenges to the impugned provisions which have all been dismissed. In 1985, the B.C. Provincial Court dismissed a challenge to the bawdy house laws based upon a claim that the provision violated s.2(d) of the Charter (freedom of association). In 1992 the Supreme Court of Canada upheld by a narrow margin the presumption in s.212(3) that evidence of living together is, in the absence of evidence to the contrary, proof of living on the avails. In 2002, the Ontario Court of Appeal overturned a lower court decision finding the bawdy house provision to be unconstitutionally vague notwithstanding the Reference. The trial judge noted that since the Reference there have been a series of conflicting court cases on the meaning of indecency and prostitution and in his view this rendered the provision unconstitutionally vague.. Although the Court of Appeal held that the bawdy house provisions were not vague, it is interesting to note that in 2007 the Ontario Court of Justice ruled that in light of the shifting approach to indecency articulated by the Supreme Court of Canada in Labaye, supra, criminal liability for bawdy house offences could no

219 of 243 longer be applied to the activities of a massage parlour which provided a masturbatory service for a fee.

R. v. G. (1985) 117 C.R.R. 334 (B.C. Prov. Ct.) R. v. Downey, supra R. v. DiGiuseppe (2002) 161 C.C.C. (3d) 424 (Ont.C.A.) R. v. Ponomarev [2007] O.J. No. 271 (Ct. Justice)

B. Fundamental Justice – Rule of Law

462. It is respectfully submitted that the three impugned sections, considered individually or collectively, deprive the Applicants of their right to liberty in a manner not in accordance with the principles of fundamental justice in that the direct effect of the interplay of these three provisions is to create an environment in which sex trade workers can only rely upon the illegal acts of third parties in the black market to secure assistance and to increase the safety of their operations. It runs contrary to the rule of law for the state to authorize a legal activity (i.e. selling sex) while concurrently closing down any legal options for the effective and safe pursuit of the activity.

463. This rule of law principle was first articulated by Mr. Justice Doherty in 2003 in addressing s.7 claims raised in the context of issues relating to the authorized use of medical marijuana. In that case, the Federal government had issued authorizations to numerous Canadians to legally use and possess marijuana for medical purposes. However, the government did not establish any legal sources of supply, and therefore patients were compelled to enter the black market to access a supply of medicine. Justice Doherty concluded that the deprivation of liberty and security by restricting a patient’s lawful access to medicine was not in accordance with the principles of fundamental justice because no person should be required to recruit the services of alleged criminals in order to satisfy a legal entitlement. The rule of law considerations were outlined as follows:

The state's obligation to obey the law is central to the very existence of the rule of law. Without this obligation, there would be no enforceable limit on the state's power over individuals. Human dignity, the second essential component of the administration of justice identified by Lamer J. in Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), supra, could not long survive a system where the Government was free to do as it saw fit without regard to established laws.

220 of 243 The state's obligation to obey its own laws not only serves as an invaluable brake on the exercise of state power against the individual, it also makes the state a role model for its citizens. By adhering to the law, the state encourages its citizenry to do likewise: Rodriguez, supra, at 608. Because it obeys and honours the law, the state can assume the moral high ground, which justifies state prosecution and punishment of individuals who break the law. As the entrapment jurisprudence demonstrates, loss of that moral high ground, through for example, active solicitation of criminal conduct, will foreclose prosecution by the state: R. v. Mack, [1988] 2 S.C.R. 903 (S.C.C.).

The state's obligation to obey the law is fundamental to our system of justice. No one would argue that it does not have general acceptance among reasonable people: Rodriguez, supra, at 607. The state's obligation to obey the law is well established at common law through the process of judicial review, is implicitly recognized in the preamble to the Constitution Act, 1867, (U.K.), 30 and 31 Vict., c. 3, is expressly recognized in the preamble to the Constitution Act, 1982, and is further recognized in s. 52 of the Constitution Act, 1982. We have no hesitation in concluding that the state's obligation to obey the law is a principle of fundamental justice.

The MMAR do not require the state to violate the law. They do, however, create an alliance between the Government and the black market whereby the Government authorizes possession of marihuana for medical purposes and the black market supplies the necessary product. The MMAR provide a viable medical exemption to the prohibition against possession of marihuana only as long as there are individuals who are prepared to commit a crime by supplying the necessary medical marihuana to the individuals that the Government has determined are entitled to use the drug. At the same time, the MMAR force seriously ill individuals who have been found to be in need of medical marihuana to consort with criminals to fill that medical need. Forcing sick people to go to the black market to get their medicine can only discourage respect for the law and at the same time signal that the medical needs of these people are somehow not worthy of the same kind of consideration as other medical needs.

A Government scheme that depends on the criminal element to deliver the medically necessary product, and that drives those in need of that product to the black market strikes at the same values that underlie the state's obligation to obey the law. The MMAR, far from placing the Government in the position of a positive role model or on the moral high ground, are calculated to bring the law into disrepute and devalue the worth and dignity of those individuals to whom the MMAR are applied. The Government's obligation to obey the law must include an obligation to promote compliance with and respect for the law.

The inevitable consequences of the absence of a legal source of marihuana for those who have been determined to be in medical need of the drug are inconsistent with the fundamental principle that the state must obey and promote

221 of 243 compliance with the law. In our view, the absence of a legal source of supply renders the MMAR inconsistent with the principles of fundamental justice. R. v. Hitzig, supra at paras. 113-118

C. Fundamental Justice – Arbitrary

464. In 1993 (three years after the Reference), the Supreme Court confirmed that the principles of fundamental justice include a prohibition on arbitrary law-making. The criteria for assessing arbitrariness has two components: 1) A law is arbitrary where “it bears no relation to, or is inconsistent with, the objective that lies behind [it]” and, 2) A law is arbitrary when “the deprivation of the right in question does little or nothing to enhance the state’s interest”.

Rodrigues v. B.C., supra at para. 147 Sfetkopoulos v. Canada (A.G.), [2008] 3 F.C.R. 399, aff’d (2008) 382 N.R. 71 (C.A.)

465. In 2005, the Supreme Court of Canada used the constitutional yardstick of arbitrariness to assess the constitutional validity of exclusivity for provincial health care programs. In Chaoulli, a challenge was brought to the Quebec prohibition on private health care insurance. The litigants were angered by the long waiting lists to receive provincially-insured health services and wished to obtain private health care; however, the law prohibited the litigants from receiving private insurance for these services. The Supreme Court of Canada ruled that subjecting patients to lengthy waiting lists, while preventing patients from seeking alternatives to the public health care system, violated the rights of patients. Upon finding an infringement upon security of the person, three judges concluded that the infringement was not in accordance with the principles of fundamental justice because the law was arbitrary. Three dissenting judges did not dispute the proposition that an arbitrary restriction on health services constitutes a constitutional violation; however, on the evidence these judges concluded that the restriction was not arbitrary as it served an important state objective. In effect, all of the judges adopted and agreed with the Rodriguez criteria for assessing arbitrariness and the disagreement among the Court arose from different conclusions as to whether the legislative regime “enhanced the state interest” in providing public health care.

Chaoulli v. Quebec [2005] 1 S.C.R. 791

466. The Supreme Court, In Chaoulli, provided the following outline of the arbitrariness doctrine:

222 of 243 It is a well-recognized principle of fundamental justice that laws should not be arbitrary: see, e.g., Malmo-Levine, at para. 135; Rodriguez, at p. 594. The state is not entitled to arbitrarily limit its citizens' rights to life, liberty and security of the person.

A law is arbitrary where "it bears no relation to, or is inconsistent with, the objective that lies behind [it]". To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect: Rodriguez, at pp. 594-95.

In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person's liberty and security, the more clear must be the connection. Where the individual's very life may be at stake, the reasonable person would expect a clear connection, in theory and in fact, between the measure that puts life at risk and the legislative goals.

In Morgentaler, Beetz J., Estey J. concurring, found that the limits on security of the person caused by rules that endangered health were "manifestly unfair" and did not conform to the principles of fundamental justice, in reasons that invoke arbitrariness. Some of the limitations bore no connection to Parliament's objectives, in his view, while others were unnecessary to assure that those objectives were met (p. 110).

While cloaked in the language of manifest unfairness, this reasoning evokes the principle of fundamental justice that laws must not be arbitrary, and was so read in Rodriguez, at p. 594. Beetz J.'s concurring reasons in Morgentaler thus serve as an example of how the rule against arbitrariness may be implicated in the particular context of access to health care. The fact that Dickson C.J., Lamer J. concurring, found that the scheme offended a different principle of fundamental justice, namely that defences to criminal charges must not be illusory, does not detract from the proposition adopted by Beetz J. that rules that endanger health arbitrarily do not comply with the principles of fundamental justice. Chaoulli v. Quebec, supra at paras. 129-133

467. It is respectfully submitted that all three impugned provisions constitute an arbitrary deprivation of liberty for three reasons. It is acknowledged that the provisions do bear some “relation to the objective that lies behind [it]"; however, the current application, and broad potential application, of these three provisions undercuts the rational connection between the offence and the pursuit of the legislative objectives. First, with respect to the communication offence, it is submitted that there is a wealth of evidence outlined in the Statement of Facts to

223 of 243 demonstrate that the offence has not achieved its stated purpose of reducing or eradicating the public nuisance caused by street prostitution. In light of this evidence, it can be said that “the deprivation of the right in question does little or nothing to enhance the state’s interest”. Second, with respect to the bawdy house and living on the avails provisions, it is respectfully submitted that these do little or nothing to enhance the state interest in preventing exploitation and/or nuisance because the provisions extend far beyond the exploitive activities for which the offences were created, and, in practical terms, there exists a de facto form of decriminalization for these offences in light of the evidence of low police enforcement, a priority placed on policing street prostitution, the licensing of various forms of indoor sex work in various municipalities and the documented fact that the vast majority of prostitution is taking place in indoor locations.

468. Third, it is submitted that the state objective underlying all three offences will never be achieved because the interplay of the three provisions is a contradiction in action. The courts define the state purpose underlying the communication offence as “aimed at taking solicitation for the purposes of prostitution off the streets and out of public view”, yet the other impugned provisions foreclose the possibility of moving “out of public view” in a legal manner. In fact, there is a legal cost imposed on those who “move out” because the other impugned provisions trigger more significant and serious legal sanctions. The three provisions cannot co-exist in a coherent way, and it is the height of arbitrariness to legislatively dictate a course of action and then legislatively take away the legal options for pursuing this course of action. The constitutional vice of arbitrariness can only be remedied by invalidating ss.210 and 212(1)(j) so as to legally facilitate the movement “out of public view”, or alternatively, invalidate all three provisions as there is no evidence to indicate that it would be in accord with the intent of Parliament to sever this legislative interplay by upholding the communication offence and invalidating the other two impugned provisions.

D. Fundamental Justice – Overbreadth

469. In 1994, the Supreme Court of Canada confirmed that overbreadth is another constitutional vice related to arbitrariness. In the context of a lifetime ban on sex offenders attending specified public venues upon release from prison, the Court outlined the basis of the doctrine:

224 of 243 Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is over broad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

Reviewing legislation for overbreadth as a principle of fundamental justice is simply an example of the balancing of the State interest against that of the individual...In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator. R. v. Heywood, supra at paras. 51-53

470. Overbreadth essentially requires the court to determine if the lawmakers have “overshot the mark” in formulating the terms and conditions of a criminal offence. By 2004 the Supreme Court acknowledged that “it is a well-established principle of fundamental justice that criminal legislation must not be overbroad”, and in that case the Court invalidated a provision allowing for the continued “subjection of an unfit person to the criminal process, where there is no clear evidence that capacity will never be recovered and there is no evidence of a significant threat to public safety”. In other words, if the criminal law extends its reach to persons not posing a threat to public safety, or the “proper functioning of society”, there is a violation of fundamental justice because the deprivation of the right to liberty does not advance the state’s objective.

R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.) at paras. 59, 80 Canada v. Taylor, [1990] 3 S.C.R. 892 at para. 165 R. v. Zundel (1992), 75 C.C.C. (3d) 449 (S.C.C.) at para. 69 R. v. Demers, [2004] 2 S.C.R. 489 at paras. 37, 43

471. It is respectfully submitted that all three impugned provisions are overbroad in that there has not been a careful tailoring of the elements to ensure that the provisions only extend to the core evil for which the provisions were created. The elements of all three provisions are not narrowly circumscribed to address situations of nuisance and exploitation, and both the case law and the Crown’s evidence from various police officers demonstrates that the enforcement of the

225 of 243 provisions extends far beyond the objectives of the legislation. For example, the notion of “compassionate enforcement” adopted by numerous police officers in which communication charges are employed to assist sex workers in exiting the profession may be a laudable motive but it bears no relationship to the objective of reducing street or social nuisance, and it converts the offence from a harm-based offence to a paternalistic offence contrary to the limited state objective underlying the law.

472. In two recent Ontario Court of Appeal decisions, there appears to be a conflation of the doctrine of overbreadth and the doctrine of gross disproportionality (to be discussed in the next section). In the context of an unsuccessful challenge to the sex offender registry, the Court initially noted that “the proscription against overbreadth, as a principle of fundamental justice, has it roots in the notion that legislation must not be arbitrary or unnecessarily broad in terms of the objectives it seeks to achieve”; however, it concluded the analysis by stating “since gross disproportionality is the ultimate standard, the threshold for striking down legislation on the grounds of overbreadth is clearly high”. Similarly, in the context of an unsuccessful challenge to a provincial ban on “pit bull” dogs, the Court analyzed overbreadth in terms of gross disproportionality.

R. v. Dyck (2008) 232 C.C.C. (3d) 450 (Ont. C.A.) at paras. 91 and 96 Cochrane v. Ontario (2008), 92 O.R. (3d) 321 (Ont. C.A.)

473. It is respectfully submitted that these cases do not stand for the proposition that there no longer exists constitutional review solely on the basis of overbreadth for overshooting the mark. The doctrine of gross disproportionality under s.7 was first introduced by the Supreme Court in 2003, and since that time both the Supreme Court of Canada and the Ontario Court of Appeal have undertaken overbreadth review without reference to gross disproportionality. It is submitted that these two cases should be restricted to their facts, and the ambiguous conversion of overbreadth into a more rigourous and exacting gross disproportionality review should be restricted to the review of provincial legislation which has a much less dramatic impact on the liberty and security of Canadians. It is submitted that the Ontario Court of Appeal recognized that its analysis may not be applicable in the criminal context:

The legislature's response to the problem posed by pit bulls is not analogous to the legislative responses in the cases relied upon by the appellant. In Heywood, and R. c. Demers, [2004] 2 S.C.R. 489 (S.C.C.), the impugned laws directly impinged

226 of 243 upon the claimants' liberty interest in a manner more significant than the pit bull provisions. Furthermore, in those cases, there existed adequate and less drastic measures capable of protecting public safety. In Heywood, the impugned law provided a lifetime ban on sex offenders from frequenting all public parks and bathing areas. The court found that the risk of harm could be satisfied by limiting the ban to parks frequented by children and reviewing the need to continue the order from time to time. In Demers, all permanently unfit accused, including persons who were not a significant threat to the public, were consigned to indefinite assessment and review with no possibility of trial or discharge. The court concluded that indefinite incarceration of such individuals could not be justified. Cochrane v. Ontario, supra at para 35 R. v. Demers, supra Mussani v. College of Physicians & Surgeons (Ontario), supra

474. It is submitted that a blanket prohibition on an entire dog breed was not considered overbroad or grossly disproportionate by the Court of Appeal because of the unpredictability of pit bulls (i.e. not being able to adequately distinguish the vicious from the tame) and “the evidence of unpredictability provided the legislature with a sufficient basis to conclude that the protection of public safety required no less drastic measures that a total ban on pit bulls”. In contrast, it is submitted that Parliament does not have sufficient basis to conclude that a total blanket prohibition on indoor prostitution (bawdy house) with the assistance of third parties (living on avails) is necessary for the protection of public safety. Unlike the unpredictability of a dog breed, it is clearly possible to distinguish, both in fact and law, between exploitive sex trade activities and those which are not. In addition, a blanket prohibition in a provincial regulatory context does not have the same impact, in terms of the deprivation of liberty and security, as blanket prohibition in a criminal context.

475. In the context of criminal legislation, it is submitted that a blanket prohibition can significantly impair both liberty and security, particularly if the blanket prohibition prevents individuals from taking legal steps to protect their physical and psychological integrity. For example, in 2008, the British Columbia Superior Court invalidated the blanket prohibitions on possession and trafficking in a controlled substance because this blanket prohibition prevented heroin users from resorting to “safe injection sites”. The evidence in the case disclosed that the safe injection site provided addicts with a “healthier and safer” environment for the administration of their drugs, whereas outside of the controlled setting of the injection site the risk of mortality from overdose increased. The Court concluded that the blanket prohibition in

227 of 243 the Controlled Drugs and Substances Act impaired the right to life by preventing access to locations which reduce the risk of deadly overdose, and the provisions also impaired the right to security in that it “denies the addict access to a health care facility where the risk of morbidity associated with infectious disease is diminished, if not eliminated”. The judge noted that “denial of access to Insite and safe injection…amounts to a condemnation of the consumption that led to addiction in the first place, while ignoring the resultant disease”.

PHS Community Services Society v. Canada (1998) 293 D.L.R. (4th) 392 at paras. 140, 144, 146 (B.C.S.C.)

476. The Court concluded that the blanket prohibition was overbroad and unconstitutional:

In my opinion, s. 4(1) of the CDSA, which applies to possession for every purpose without discrimination or differentiation in its effect, is arbitrary. In particular it prohibits the management of addiction and its associated risks at Insite. It treats all consumption of controlled substances, whether addictive or not, and whether by an addict or not, in the same manner. Instead of being rationally connected to a reasonable apprehension of harm, the blanket prohibition contributes to the very harm it seeks to prevent. It is inconsistent with the state's interest in fostering individual and community health, and preventing death and disease. That is enough to compel the conclusion that s. 4(1), as it applies to Insite, is arbitrary and not in accord with the principles of fundamental justice. If not arbitrary, then by the same analysis, s. 4(1) is grossly disproportionate or overbroad in its application. PHS Community Services Society v. Canada, supra at para. 152

477. It is respectfully submitted that the logic and reasoning applied in the safe injection case is directly relevant to the case at bar. As with a blanket prohibition on illicit drug use, a blanket prohibition on indoor prostitution, and a blanket prohibition on all service-providers, is a complete disregard of the legitimate needs of a sex worker who wishes to take measures to increase her safety and security. The blanket prohibition unnecessarily exposes sex trade workers to an increased risk of violence.

E. Fundamental Justice – Gross Disproportionality

478. In 2003 the Supreme Court of Canada dismissed a constitutional challenge to the criminal prohibition on possession of marijuana. In essence, it was claimed that the prohibition was not in accordance with the principles of fundamental justice because the conduct was not sufficiently harmful to justify imposition of the criminal sanction, and that the harms caused by enforcing the law were greater than the benefits gained. The Court rejected the notion that there must be

228 of 243 evidence of a sufficient level of harm to others before Parliament can invoke the criminal sanction; however, the Court did recognize that it would violate principles of fundamental justice if the harmful effects of law were grossly disproportionate to the benefits gained in pursuing the state objective underlying the law. The Court stated:

As stated, the proportionality argument made by the appellants is broader than the mere disproportionality of penalty. They are correct to point out that interaction by an accused with the criminal justice system brings with it a number of consequences, not least among them the possibility of a criminal record. We agree that the proportionality principle of fundamental justice recognized in Burns and Suresh is not exhausted by its manifestation in s. 12. The content of s. 7 is not limited to the sum of ss. 8 to 14 of the Charter. See, for instance, R. v. Hebert, [1990] 2 S.C.R. 151; Thomson Newspapers, supra. We thus accept that the principle against gross disproportionality under s. 7 is broader than the requirements of s. 12 and is not limited to a consideration of the penalty attaching to conviction. Nevertheless the standard under s. 7, as under s. 12, remains one of gross disproportionality. In other words, if the use of the criminal law were shown by the appellants to be grossly disproportionate in its effects on accused persons, when considered in light of the objective of protecting them from the harm caused by marihuana use, the prohibition would be contrary to fundamental justice and s. 7 of the Charter.

In this respect, the appellants urge three factors. Firstly, they point to the adverse consequences to the individual accused other than imprisonment. Secondly, they suggest that the relative ineffectiveness of the ban shows that the prohibition only marginally advances the interest of the state, and that this should facilitate a judicial finding of gross disproportionality. Thirdly, and more generally, the appellants state that the salutary effects of the law are vastly outweighed by the deleterious effects R. v. Malmo-Levine, supra at paras. 169-170

479. Since 2003 the doctrine of gross disproportionality has gained acceptance as a principle of fundamental justice and the doctrine has been applied without success in a number of different contexts.

Flora v. Ontario Health Insurance Plan (2006), 83 O.R. (3d) 721 (Div. Ct.) Cheskes v. Ontario, supra Cochrane v. Ontario, supra R. v. Dyck, supra

480. In the marijuana cases, the balancing of harms and benefits required an assessment of whether the benefits of protecting Canadians from the documented harms of marijuana use were grossly outweighed by the harms of possible imprisonment and the imposition of a criminal

229 of 243 record with its attendant stigma and potential impairment of economic opportunities for young people. The Supreme Court of Canada concluded that the harms caused by the law were the routine and ordinary side-effects of the criminal process and these hardships could not constitute the type of harm which could outweigh the benefits gained by the prohibition. In the case at bar, it is respectfully submitted that the law materially contributes to a type of harm which does grossly outweigh the benefits of the law.

481. It is respectfully submitted that the harms caused by the blanket prohibitions on communicating, on moving indoors and on relying upon services provided by third parties are not routine side-effects of the process as was the case with the marijuana prohibition. The evidence in this case demonstrates that the blanket prohibitions on sex trade activities increases the risks of violence for sex workers, and the evidence demonstrates that this increased risk of victimization includes exposure to the horrors of predatory killers. It is respectfully submitted that the harms caused by laws which restrict safety options for an ‘occupation at risk’ grossly outweigh any benefits gained by way of the modest reduction or elimination of nuisance and exploitation seen to date. Based upon the studies of enforcement patterns and the evaluations conducted by the Department of Justice, it is clear that the impugned provisions have not been successful in targeting and sanctioning nuisance and exploitation. Accordingly, it is impossible to assert that the modest benefits gained by ineffective and erratic enforcement of the law could outweigh and justify the increased risk of victimization created by laws which prevent safer options for the pursuit of prostitution.

482. It is submitted that the notion that indoor prostitution is safer than street prostitution, and the notion that the practice of prostitution is safer when conducted with the presence and support of third parties, is established by the evidence tendered in this case and by simple common sense. In 1992, in the context of commenting on the presumption under s.212(3) that living with a sex trade worker raises a presumption of living on the avails, McLachlin J (as she then was) outlined the ways in which the legal regime increases the risk of violence and undercuts any of the potential benefits of the law:

The irrational and unfair effects of the presumption extend beyond those who innocently keep company with prostitutes, to prostitutes themselves. Insofar as the object of the presumption is the suppression of pimping and the protection of prostitutes from the evil of being subject to the malevolent control of pimps, these effects on prostitutes are such as to bring into question the external rationality of

230 of 243 the presumption -- i.e., whether the legislation furthers its purported objects. While few in our society approve of prostitution and most regard it as an unfortunate fact of life, a fact of life it remains, and one which Parliament has not seen fit to sanction by making it a crime. The effect of the presumption is to compel prostitutes to live and work alone, deprived of human relationships save with those whom they are prepared to expose to the risk of a criminal charge and conviction and who are themselves prepared to flaunt that possibility. By this presumption prostitutes are put in the position of being unable to associate with friends and family, or to enter into arrangements such as those evidenced in this case, arrangements which may alleviate some of the more pernicious aspects of their frequently dangerous and dehumanizing trade. The predictable result is to force prostitutes onto the streets or into the exploitive power of pimps, thereby undercutting the very pressing and substantial objective which the presumption was designed to address. Where legislation has the actual effect of operating to preserve and exacerbate the very exploitation the amelioration of which is its purported objective, it cannot be said to possess the degree of rationality necessary to justify the violation of a right guaranteed by our Charter. R. v. Downey, supra at para. 76

483. Similarly, the idea that a prohibition on communication, which prevents sex workers from conducting a rudimentary screening of clients, can increase the risk of exposure to violence is also supported by the evidence and common sense. With respect to communication, it is submitted that the following excerpt regarding safety measures for sex workers from the cross- examination of Detective Morrissey in Edmonton (where Project Kare is investigating over 80 cases of missing women from “high risk” occupations) illustrates the irrationality of the current regime and the troubling reality that the law appears to be willing to sacrifice safety and security in the pursuit of reducing street and social nuisance:

Q. Tell me what the precautionary measure would be for someone working the street when a john drives up. What could they do to protect themselves in that scenario?

A. Well, get yourself off the street, number one, but --

Q. Short of that. Short of that.

A. And a safer occupation. But you should make some kind of determination about the sobriety or not of the man who you’re about to get in with.

Q. Ho [sic] would you do that?

A. Have a conversation with him.

231 of 243 Q. Communication, that’s illegal. How can you do --

A. If I’m not having a conversation about sex, I can have a conversation with him. How are you --

Q. If you are having a conversation with someone to screen them to determine whether or not you’re going to have sex with them, that is for the purpose of prostitution.

A. Well, we would probably get to the evidence where I’d have to be done the 213.

Q. Yes.

A. But you would have to make some determination on sobriety, search his car somehow, have a look around. Does he have any weapons, tazers, things in there that he could use on her? We’ve found all those things on johns that we’ve arrested, and, you know -- I really don’t think there’s a whole lot of really good --

Q. Realistically, you can’t protect yourself on the street, really?

A. But just jumping in is the the worst thing you can do. Cross-Examination of Detective Jim Morrisey, Application Record, Vol. 34, Tab 79, p. 9840 l. 13 – p. 9841 l. 14

F. Fundamental Justice and Reasonable Limits under s.1

484. If this Honourable Court concludes that all, or some, of the impugned provisions violate s.7 of the Charter, it is respectfully submitted that these violations cannot be saved by s.1 of the Charter. The Supreme Court of Canada has consistently held that it would be a rare occasion when s.1 could cure a breach of fundamental justice, and these rare occasions would tend to involve emergency situations. In addition, the Supreme Court has clearly stated that s.1 cannot cure an overbreadth defect as it would be inconsistent to conclude that an overbroad law constitutes a “minimal impairment” of rights.

Reference Re: B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at para. 85 New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at para. 99 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 78 R. v. Demers, supra at para. 46 R. v. Heywood, supra at 802-803

232 of 243 485. Of course, the burden for demonstrating that a violation of rights can be justified and upheld as a reasonable limit rests upon the Crown, and in assessing whether the Crown can discharge this burden it is important to keep in mind the following summary from the Ontario Superior Court of the relationship between reasonable limits under s.1 and the principles of fundamental justice under s.1:

Can the denial of a liberty right in violation of a principle of fundamental justice be justified as a reasonable limit in a free and democratic society? The Supreme Court has made clear that justifying s.7 violations under s.1 is a difficult task for two reasons: (1) the rights protected are very significant and cannot ordinarily be overruled by competing social interests; and (2) contraventions of principles of fundamental justice will rarely be upheld. Indeed in the B.C. Reference, Lamer J. (as he then was), speaking for the majority, noted that s. 1 can save a s.7 violation but "only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like." In Charkaoui the Supreme Court restated this proposition by noting that it would be possible to justify a s. 7 violation under s. 1 only "in extraordinary circumstances where concerns are grave and the challenges complex."

If these Supreme Court pronouncements are to be taken seriously, and I assume that they are, then s. 1 is not available in the circumstances of this case to justify the violation of the applicants' rights under s. 7. This is not a case involving a natural disaster or the outbreak of a war or an epidemic; nor is it a case where the circumstances can be described as extraordinary, the concerns as grave and the challenges as complex. Legislation opening adoption records on a retroactive basis is no doubt extremely important for many, but the new law cannot be said to fall within any of the extraordinary or emergency categories listed above. Cheskes v. Ontario, supra at paras. 137-138

G. The Communication Law and Reasonable Limits under s. 1

486. In 1990, the Supreme Court concluded that the communication offence violated freedom of expression but the provision was upheld as a reasonable limit upon this fundamental freedom. Since the Court conducted this balancing exercise under s.1 there have been numerous government reports and studies indicating that the communication law simply displaces sex workers and has not reduced the incidence of street prostitution and nuisance. In light of these studies, the Federal/Provincial/Territorial Working Group on Prostitution concluded in 1998 that:

The research results indicated that the law was not meeting its objectives as its main effect in most centres has been to move street prostitutes from one downtown area to another, thus merely displacing the problem. However, as mentioned in the previous paragraph, the Supreme Court of Canada had already

233 of 243 ruled that the communicating law was a justifiable infringement because its strengths (reducing the street nuisance associated with street prostitution) outweighed the infringement on freedom of expression. Had the research results been made available prior to the Supreme Court decision, the question whether s.213 is a justifiable infringement on freedom of expression might have been considered differently (emphasis added).

Federal/Provincial/Territorial/Working Group on Prostitution- Report and Recommendations in respect of Legislation Policy and Practices Concerning Prostitution-Related Activities, 1998, Application Record, Vol. 79, Tab 160, p. 23873.

487. With respect to the evidence tendered in the case at bar, it is respectfully submitted that the totality of evidence demonstrates that there is an air of reality to the claim that the communication law has not served its stated objectives. In light of the fact that the Crown bears the burden of demonstrating that s.1 can override a violation of rights, it is submitted that it is incumbent upon the Crown to prove on a balance of probabilities that the law has been at least modestly effective in achieving its stated goals. The Courts have allowed the Crown to rely upon “common sense” in demonstrating a rational connection between law and objective if the available social science data is inconclusive, but it is submitted that common sense alone cannot defeat the growing body of evidence demonstrating lack of effectiveness with the communication law.

RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at paras. 82-87

488. It is respectfully submitted that an “ineffective” law, or a law which cannot meet its objectives, cannot constitute a reasonable limit prescribed by law. Allowing an ineffective law to cure or save a violation of free expression would mean that expressive freedom could then be violated for no apparent good reason. It is conceded that the Supreme Court has clearly stated on two occasions that there is no free-standing constitutional review of the efficacy of law as this would be an unjustified intrusion into the realm of public policy. However, both cases involved division of powers challenges and it is submitted that the efficacy of law is clearly not relevant to the jurisdictional question of which branch of government has authority to enact law, whether the law is effective or ineffective. However, in terms of judicial review for compliance with Charter rights, the Supreme Court has recognized that different considerations may come into play:

234 of 243 This Court has exercised caution in accepting arguments about the alleged ineffectiveness of legal measures: see Reference re Firearms Act (Can.), supra, where the Court held that "[t]he efficacy of a law, or lack thereof, is not relevant to Parliament's ability to enact it under the division of powers analysis" (para. 57). While somewhat different considerations come into play under a Charter analysis, it remains important that some deference be accorded to Parliament in assessing the utility of its chosen responses to perceived social ills. R. v. Caine; R. v. Malmo-Levine, supra at para. 177 Reference Re: Firearms Act (Can.), [2000] 1 S.C.R. 783 Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569

489. In the context of judicial review for violations of the Charter, the Supreme Court has recognized that efficacy of the law is relevant to the s.1 determination of reasonable limits. In the Keegstra case, the hate literature provisions of the Code were upheld as a reasonable limit on freedom of expression. The dissenting judges would not uphold the provisions as a reasonable limit because of evidence suggesting that these types of law are ineffective in achieving their stated objectives. It was noted in the case that the Nazi regime in Germany had extensive hate literature laws and, of course, history shows that these laws could not prevent genocide. Chief Justice Dickson for the majority addressed this claim of inefficacy, and concluded that there was insufficient evidence to demonstrate a lack of efficacy though recognizing that an ineffective law is an arbitrary and irrational law:

Doubts have been raised, however, as to whether the actual effect of s. 319(2) is to undermine any rational connection between it and Parliament's objective. As stated in the reasons of McLachlin J., there are three primary ways in which the effect of the impugned legislation might be seen as an irrational means of carrying out the Parliamentary purpose. First, it is argued that the provision may actually promote the cause of hate-mongers by earning them extensive media attention. In this vein, it is also suggested that persons accused of intentionally promoting hatred often see themselves as martyrs, and may actually generate sympathy from the community in the role of underdogs engaged in battle against the immense powers of the state. Second, the public may view the suppression of expression by the government with suspicion, making it possible that such expression -- even if it be hate propaganda -- is perceived as containing an element of truth. Finally, it is often noted, citing the writings of A. Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979), that Germany of the 1920s and 1930s possessed and used hate propaganda laws similar to those existing in Canada, and yet these laws did nothing to stop the triumph of a racist philosophy under the Nazis.

If s. 319(2) can be said to have no impact in the quest to achieve Parliament's admirable objectives, or in fact works in opposition to these objectives, then I

235 of 243 agree that the provision could be described as "arbitrary, unfair or based on irrational considerations" (Oakes, supra, at p. 139). I recognize that the effect of s. 319(2) is impossible to define with exact precision -- the same can be said for many laws, criminal or otherwise. In my view, however, the position that there is no strong and evident connection between the criminalization of hate propaganda and its suppression is unconvincing. (emphasis added) R. v. Keegstra, [1990] 3 S.C.R. 697 at paras. 98-99

H. Concluding Remarks on the Rule of Law

490. Whether a constitutional claim is characterized as an arbitrariness claim, an overbreadth claim or a gross disproportionality claim, the unifying thread underlying all these claims is that they are specific illustrations of the larger principle known as the the rule of law. The rule of law principle is specifically referred to in the preamble to the Charter, so it is not surprising that the rule of law has been characterized as a principle of fundamental justice. As Mr. Justice Doherty has noted:

The rule of law, identified by Lamer J. as a bulwark of our administration of justice, has been described as "the root of our system of government" and a "highly textured expression, importing many things": Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (S.C.C.), at 257. Several principles of fundamental justice, including some which are entrenched in the Charter, trace their roots to various components of the rule of law (e.g., s. 9, s. 11(g), s. 11(h)). At its most general level, the rule of law refers to the regulation of the relationship between the state and individuals by pre-established and knowable laws. R. v. Hitzig, supra at para. 122

491. The rule of law has many different formulations but it is essentially a safeguard against arbitrary lawmaking. As noted by the eminent legal scholar, A.V. Dicey: “[The rule of law] means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government.” The principle demands that laws be clear and accessible so that law can serve its primary purpose of providing fair and clear guidance for conduct.

A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: MacMillian and Co., Ltd, 1915) at p. 198

492. The essence of the rule of law is a simple demand for clarity, accessibility and coherence in order that the law can effectively guide behavior. This simple demand also animates the

236 of 243 application and operation of s.1 of the Charter as has been recognized by Professor Hogg in his analysis of the meaning of “reasonable limit prescribed by law”:

The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law. First, in order to preclude arbitrary and discriminatory action by government officials, all official action in derogation of rights must be authorized by law. Secondly, citizens must have a reasonable opportunity to know what is prohibited so that they can act accordingly. Both these values are satisfied by a law that fulfils two requirements: (1) the law must be adequately accessible to the public, and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it, and to provide guidance to those who apply the law Peter Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 2, at p. 122

493. It is respectfully submitted that the impugned provisions run contrary to the spirit of the rule of law regardless of the precise nomenclature used to characterize the s.7 claims. The rule of law is a principle designed to enhance the legitimate authority and effectiveness of law, and it is submitted that effectiveness and legitimate authority cannot be enhanced when a set of laws is internally contradictory and is cast so broadly that it cannot effect its purpose of targeting conduct which is truly exploitive or a public nuisance. The rule of law is completely undermined when one provision is designed to move the sex trade into private spaces and another provision then imposes greater liability for making this move. As Professor Joseph Raz has noted, the rule of law does not dictate whether a law will be good or bad, but rather it has instrumental value to ensure that the law is effective:

...the rule of law is not merely a moral virtue - it is a necessary condition for the law to be serving directly any good purpose at all. Of course, conformity to the rule of law also enables the law to serve bad purposes. That does not mean that it is not a virtue, just as the fact that a sharp knife can be used to harm does not show that being sharp is not a good-making characteristic of knives. At most it shows that from the point of view of the present consideration it is not a moral good. Being sharp is an inherent good-making characteristic of knives. A good knife, is among other things, a sharp knife. Similarly, conformity to the rule of law is an inherent value of laws, indeed it is their most important inherent value. It is the essence of law to guide behaviour through rules and courts in charge of their application….As with some other tools, machines and instruments a thing is not of the kind unless it has some ability to perform its function. A knife is not a knife unless it has some ability to cut. The law must be capable of guiding behavior, however inefficiently. Like other instruments, the law has a specific virtue which is morally neutral in being neutral as to the end to which the

237 of 243 instrument is put. It is the virtue of efficiency; the virtue of an instrument as an instrument. Joseph Raz, The Authority of Law: Essays on Law and Morality (New York: Oxford University Press, 1979) at 225

494. If a knife is not sharp it cannot effectively cut and if a law is not clear, narrowly tailored and consistent with other related laws then it cannot effectively guide conduct. The inherent irrationality and contradictory nature of the impugned provisions renders the law ineffective, and it is submitted that it is this irrationality which has led numerous government reports and studies to conclude that the sex trade laws do not serve the purpose for which they were designed. The failure to respect the dictates of the rule of law leads to the cardinal vice of arbitrary rule as defined by Professor Raz: “It seems, however, that an act which is the exercise of power is arbitrary only if it was done either with indifference as to whether it will serve its purpose which alone can justify use of that power or with belief that it will not serve them”.

Joseph Raz, supra at 219

495. It is submitted that the current legislative approach to the sex trade demonstrates a clear “indifference as to whether it will serve its purpose” or the “belief that it will not serve them”. As outlined in the Statement of Facts, the Government of Canada has been well aware of the evidence of the law’s ineffectiveness and the apparent increasing levels of violence inflicted upon street-level sex trade workers. The failure to address either the effectiveness issue or the issue of increasing violence provides the proof of the state “indifference as to whether [the law] will serve its purpose”, and this indifference in turn demonstrates that the government is acting arbitrarily in failing to take action to address the increasing violence and in failing to recognize the law’s complicity in contributing to the dangers facing an “occupation at risk”.

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Schedule A – Authorities Referred To

Authority Paragraph Canada v. Taylor, [1990] 3 S.C.R. 892 470 Chaoulli v. Quebec [2005] 1 S.C.R. 791 465-466 Cheskes v. Ontario (A.G.) (2007), 87 O.R. (3d) 581 (S.C.) 479, 485 Cochrane v. Ontario (2008), 92 O.R. (3d) 321 (Ont. C.A.) 472-473, 479 Danson v. Ontario, [1990] 2. S.C.R. 1086 16, 432 Flora v. Ontario Health Insurance Plan (2006), 83 O.R. (3d) 721 479 (Div. Ct.) MacKay v. Manitoba, [1989] 2 S.C.R. 357 16, 432 Mussani v. College of Physicians & Surgeons (Ontario) (2004), 74 432, 473 O.R. (3d) 1 (Ont. C.A.) New Brunswick (Minister of Health and Community Services) v. 484 G.(J.), [1999] 3 S.C.R. 46 PHS Community Services Society v. Canada (1998) 293 D.L.R. 475-476 (4th) 392 (B.C.S.C.) R. v. Barrie (1975), 25 C.C.C. (2d) 216 (Ont. Co. Ct.) 450 R. v. Barrow (2001), 54 O.R. (3d) 417 (C.A.) 456 R. v. Baskind (1975), 23 C.C.C. (2d) 368 (Que. C.A.) 450 R. v. Bedford (2000), 143 C.C.C. (3d) 311 (Ont. C.A.) 450 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 430 R. v. Brandes, [1997] O.J. No. 5443 (Ct. Jus. (Prov. Div.)) 450 R. v. Broccolo (1976), 30 C.C.C. (2d) 540 (Ont. Prov. Ct.) 450 R. v. Butler (1992) 70 C.C.C. (3d) 129 (S.C.C.) 441 R. v. Caine; R. v. Malmo-Levine, [2003] 3 S.C.R. 571 12, 429, 441, 478, 488 R. v. Canadian Pacitic Ltd., [1995] 2 S.C.R. 1031 432-433 R. v. Caringi, [2002] O.J. No. 2367 (Ct. Jus.) 450 R. v. Carroll (1999), 118 B.C.A.C. 219 (C.A.) 450 R. v. Celebrity Enteprises Ltd, [1977] 4 W.W.R. 144 455 R. v. Corbeil, [1991] 1 S.C.R. 830 438, 450, 452 R. v. Demers, [2004] 2 S.C.R. 489 470, 473, 484 R. v. DiGiuseppe (2002) 161 C.C.C. (3d) 424 (Ont. C.A.) 461 R. v. Downey, [1992] 2 S.C.R. 10 440, 461, 482

240 of 243 R. v. Dyck (2008) 232 C.C.C. (3d) 450 (Ont. C.A.) 472, 479 R. v. Evans (1973), 11 C.C.C. (2d) 130 (Ont. C.A.) 450 R. v. Friesen (1995), 129 Sask. R. 223 (Q.B.) 456 R. v. G. (1985) 117 C.R.R. 334 (B.C. Prov. Ct.) 461 R. v. Goltz (1991), 67 C.C.C. (3d) 481 (S.C.C.) 432 R. v. Grilo (1991), 64 C.C.C. (3d) 53 (Ont. C.A.) 454-455 R. v. Guan; R. v. Soh; R. v. Look, [1992] O.J. No. 2588 (Ct. Jus. 450 (Prov. Div.)) R. v. Habib (1992), 135 A.R. 162 (C.A.) 450 R. v. Heywood, [1994] 3 S.C.R. 761 432, 469, 484 R. v. Hitzig (2003), 177 C.C.C. (3d) 449 (Ont. C.A.) 13, 427, 463, 490 R. v. Huang, 2008 BCPC 250 450 R. v. Ikeda (1978), 42 C.C.C. (2d) 195 (Ont. C.A.) 450 R. v. Jones (1921), 36 C.C.C. 208 (Alta.C.A.) 439 R. v. Juneja, 2009 ABQB 243 450 R. v. Keegstra, [1990] 3 S.C.R. 697 489 R. v. Klaus, [1998] O.J. No. 6513 (Ct. Jus. (Prov. Div.)) 450 R. v. Labaye [2005] 3 SCR 728 442-444 R. v. Laliberté (1973), 12 C.C.C. (2d) 109 (Que. C.A.) 450 R. v. Lucacko (2002) 59 O.R. (3d) 58 (Ont. C.A.) 457 R. v. Manion (2005) 377 A.R. 95 (Prov. Ct.) 457 R. v. MacNab (2000), 264 A.R. 76 (Prov. Ct.) 450 R. v. McLellan (1980), 55 C.C.C. (2d) 543 (B.C.C.A.) 450 R. v. Mercier (1908), 13 C.C.C. 475 (Yuk. Terr. Ct.) 439 R. v. Mills (2000), 139 C.C.C. (3d) 321 (S.C.C.) 432 R. v. Mohammed, [1996] B.C.J. No. 1285 (C.A.) 450 R. v. Morgentaler, [1988] 1 S.C.R. 30 427 R. v. Morrissey [2000] 2 S.C.R. 90 432, 451 R. v. Ng, 2007 BCPC 204 450 R. v. Nguyen (1992), 16 W.C.B. (2d) 447 (Ont. Ct. Jus. (Prov. 450 Div.)) R. v. Ni (2002), 158 O.A.C. 230 (C.A.) 450 R. v. Odgers (2006) A.R. 322 (Prov. Ct.) 457, 464

241 of 243 R. v. Patterson [1968] S.C.R. 157 449 R. v. Pierce and Golloher (1982), 66 C.C.C. (2d) 388 (Ont. C.A.) 450 R. v. Ponomarev [2007] O.J. No. 271 (Ct. Justice) 450, 461 R. v. Ramberran, [1978] 1 W.W.R. 19 (Man. Prov. Ct.) 450 R. v. Ranville (1995), 129 Sask. R. 318 (Q.B.) 456 R. v. Rodriguez, [1993] 3 S.C.R. 519 12, 427 R. v. Saengchanh (2004), 51 Imm. L.R. (3d) 91 (Alta. Prov. Ct.) 450 R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.) 470 R. v. Smith (1987), 34 C.C.C. (3d) 97 (S.C.C.) 432 R. v. St-Onge (2001), 155 C.C.C. (3d) 517 (Que. C.A.) 450 R. v. Suen, [1995] O.J. No. 4409 (Ct. Jus. (Prov. Div.)) 450 R. v. Tardif (1995), 97 C.C.C. (3d) 381 (Que. C.A.) 450 R. v. Webb, [1995] S.J. No. 252 (Q.B.) 450 R. v. Wong (1977), 33 C.C.C. (2d) 6 (Alta. S.C.A.D.) 450 R. v. Worthington (1972) 10 C.C.C. (3d) 311 (Ont. C.A.) 450, 452 R. v. Woszczyna (1983), 6 C.C.C. (3d) 221 (Ont. C.A.) 450 R. v. Yee, [1982] B.C.J. No. 1905 (C.A.) 450 R. v. Yeung, [2001] B.C.J. No. 2045 (Prov. Ct.) 450 R. v. Zakreski (2004), 362 A.R. 10 (Prov. Ct.) 450 R. v. Zundel (1992), 75 C.C.C. (3d) 449 (S.C.C.) 470 Reference Re: B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 484 Reference Re: Firearms Act (Can.), [2000] 1 S.C.R. 783 488 Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code, [1990] 9, 426, 429, 446-447, 458- 1 S.C.R. 1123 460 RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 487 S.C.R. 199 Shaw v. Director of Public Prosecutions, [1961] All ER 446 455 Sfetkopoulos v. Canada (A.G.), [2008] 3 F.C.R. 399 465 Suresh v. Canada (Minister of Citizenship and Immigration), 484 [2002] 1 S.C.R. 3 Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569 488

242 of 243 Blackstone, William. Commentaries on the Law of England, J.W. 437 Ehrlich, ed. (San Carlos: Nourse Publishing Co., Inc., 1959) Coke, Edward. The Third Part of the Institutes of the Laws of 437 England (Buffalo, W.S. Hein, 1986) Dicey, A.V. Introduction to the Study of the Law of the 491 Constitution, 8th ed. (London: MacMillian and Co., Ltd, 1915) Hawkins, William. Pleas of the Crown 1716-1721, Vol. 1 437 (London: Professional Books Ltd., 1973) Hogg, Peter. Constitutional Law of Canada (5th ed. 2007) 492 Raz, Joseph. The Authority of Law: Essays on Law and Morality 493-494 (New York: Oxford University Press, 1979)

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Court File No. 07-CV-329807PD1

TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE AND ATTORNEY GENERAL OF ATTORNEY GENERAL SCOTT CANADA OF ONTARIO

Applicants Respondent Intervener

ONTARIO SUPERIOR COURT OF JUSTICE

Proceeding Commenced at Toronto

APPLICANT’S MEMORANDUM OF FACT AND LAW

Alan N. Young Barrister & Solicitor Osgoode Hall Law School 4700 Keele Street, Room 428 Toronto, Ontario M3J 1P3

Tel: (416) 736-5559 Fax: (416) 736-5736 Email: [email protected]

Solicitor for the Applicant, Terri Jean Bedford