Pope Francis has spoken more consistently than any other global leader on the crime of human trafficking. He has described human trafficking as an open wound and as a crime against humanity. "It's a disgrace," he has said, that people are treated "as objects, deceived, raped, often sold many times for different purposes and, in the end, killed or, in any case, physically and mentally damaged, ending up thrown away and abandoned."
Human trafficking is inseparable from and co-dependent on its sibling, prostitution. The demand for prostitution needs and relies upon human trafficking. In turn, prostitution is the purpose for which much human trafficking exists.
In Canada, we have a significant opportunity at this historical juncture to take great positive strides to end prostitution and human trafficking. These are grim issues, and there will be some grimness in what follows. However, it is vitally important that we have this discussion and that we have it now. Pope Francis has exhorted us not to remain shut up within safe structures while so many outside our doors, and within our families, are suffering. It may cause us some discomfort to discuss such matters, but we cannot let this moment pass.
Although we frequently hear pessimistic comments such as "prostitution will always be with us," I for one am hopeful that this is not the case. I have faith that we can and will bring an end to these two interwoven practices. We can heal and close the wound. My message ultimately is one of hope.
I first came to these issues from a legal perspective in 2005, when I began acting as counsel for Vancouver Rape Relief. I started monitoring the Bedford case in 2010 and became involved in the case in October 2012, acting as co-counsel for the Asian Women Coalition Ending Prostitution. The Supreme Court of Canada, in the Bedford case, struck down three laws relating to prostitution but suspended the effect for one year to permit Parliament to bring in new laws. In many ways, these decisions triggered changes that have led to our current moment.
The three provisions struck down were those that criminalized the following:
1. Keeping, being an inmate of or being found in a bawdy house.
2. Living on the avails of prostitution.
3. Communicating in a public place for the purposes of prostitution.
Throughout the case, it was common ground that prostitution is extremely dangerous and that the primary source of danger to those in prostitution comes from the men who buy sex and from the profiteers. The three applicants argued successfully that the laws violated their rights to safety and security of the person guaranteed by section 7 of the Charter of Rights and Freedoms because the laws prevented them from taking measures to increase their safety.
Of the three applicants in Bedford, two had entered the sex industry under the age of 18; two had to stop selling sex due to chronic illness and pain; and two had been violently beaten and raped while in prostitution.
The Asian Women Coalition, a group with no funding, was granted intervener status at the Supreme Court of Canada. My clients in the coalition are recognized experts on human trafficking. They are also experts on how prostitution exacerbates racial and sexual stereotypes of Asian women and how these stereotypes affect all Asian women. Professor Christine Boyle and I were co-counsel for them, working pro bono, and had the opportunity to appear before the Supreme Court.
The case was narrow in scope. The lower court had refused to consider arguments regarding trafficking or the abuse of children in prostitution, and it heard little evidence about the men who buy sex and who are the primary source of danger to prostituted persons. The buyers' rights to safety and security were never at issue.
One of the challenges we had was that among the 25,000 pages of evidence contained in 88 volumes, there was only one line regarding Asian women in prostitution. That one line was contained in the affidavit of a police officer, Michelle Holm, who deposed that women in bawdy houses were often illegal immigrants and that residential brothels contained mainly Asian women.
The decision was also based on narrow grounds. The Court stated first that the case was not about whether prostitution should be legal; nor did the case address equality issues, either based on sex or race. The Court did not comment on the overrepresentation of Aboriginal women within street prostitution or the overrepresentation of Asian women in massage parlours. What it did do was to note that those engaged in street prostitution were the most vulnerable group, with many suffering because of drug addiction, poverty, mental health issues and an "alarming amount of violence." The Court stated that these women could not be said to be exercising a free choice since many have no meaningful choice but to engage in prostitution.
The Court reviewed the provisions against the purposes for which the laws were enacted at the time they were enacted, and it found that these purposes were related to public disorder and neighbourhood disruption. The Court specifically rejected the contention that the purposes of the laws included the promotion of human dignity and equality; but by the same token, it also rejected the argument that the case was about asserting a positive right to sell sex.
My mind was buzzing with what would happen next. What would Parliament do, if anything at all? I recalled a comment I heard Father Thomas Rosica make in a talk given to Catholic lawyers in Vancouver in 2014. He quoted Pope Francis about the "gaze of Christ" and said this is what we would see if we tried to look at the faces of the poor and downtrodden. He said specifically that we would see peoples "marked for destruction," "targeted for elimination" and "rejected before they were born."
I wrote those words down at the time. As I was writing them down, one face popped into my mind. It was the face of a young woman I hope one day to call my colleague at the bar. Her name is Summer- Rain Bentham. Summer-Rain is a Squamish woman who was raised in foster care. She was told from an early age that she was disposable and that it was her destiny to walk the streets of the Downtown Eastside in Vancouver. She was told in no uncertain terms she was marked for destruction, targeted for elimination, rejected before she was born. When she was 11 years old, the destiny that had been proposed to her became her reality. And each day until she was 15, men paid to use her body.
One day, as she was lying in a hospital bed recovering from a beating at the hands of her pimp, she realized that there would not be another such stay. The next beating, which was foreseeable, would be her destruction, her elimination. She discharged herself from hospital and called a rape crisis centre. She uses her voice now to campaign against the destruction and elimination of those trafficked into prostitution.
Since then, I have met other survivors, other women who were targeted for elimination and marked for destruction. They tell similar stories.
On December 6, 2014, Canada enacted new legislation in response to the Bedford decision: Bill C-36. With this bill, Canada has joined other nations, particularly in Europe, in the direction it has chosen.
The Protection of Communities and Exploited Persons Act represents a shift in thinking and focuses the range of the law on the actual source of the harm: the buyers and the profiteers. In addition to the law, Parliament has promised $20 million in funding to assist with social programs to help prostitution's victims.
In setting out the objectives of the new legislation, the act recognizes that:
1. Prostitution is inherently exploitative and violent; it is demand driven and it is necessary to target demand.
2. Prostitution has a disproportionate effect on women and children; consequently it is a practice that perpetrates inequality and sexual subordination.
3. Prostitution objectifies and commodifies the girls, youth and women who are prostituted.
4. It is necessary to invoke the criminal law to protect the dignity and equality rights of those who are prostituted.
5. It is necessary to resist the commercialization and institutionalization of prostitution.
The clear statement from Parliament is that girls, youth and women are not for sale. They are full human beings with dignity and human rights. The act makes buying sex, receiving a material benefit from prostitution and advertising for the purpose of solicitation criminal offences. These are dramatic shifts. Now, for the first time in our nation, the man who phones an escort agency to deliver a woman to his hotel room is breaking the law.
Pro-prostitution advocates in this country are planning a challenge to the new law. Alan Young, the Bedford applicants' lawyer, has said that he started planning the Bedford case 25 years ago, and it took seven years of work to get to the Supreme Court. Two hundred of our colleagues have signed a letter urging a constitutional reference to the Supreme Court on the basis that the new law is unconstitutional. The legal issue this time around will focus on the rights of men to buy sex.
There are calls for the provinces and police forces to enforce the laws, but little has been done in this regard thus far. Police forces in Vancouver and Victoria have said they will not change their practices in response to the law; what they mean is that they won't arrest buyers or advertisers.
The law must be reviewed in five years. No doubt there will be calls then to repeal it. Much evidence, no doubt, will be marshalled to "prove" statistically whether the law has been a success or failure. The prostitution and trafficking industry is massive and multinational. In Germany alone, it is a 15 billion euro industry annually.