Participating in yesterday’s justice committee hearings, Robert Goguen, the parliamentary secretary to the minister of justice, apparently thought he had a point to make about a suggestion that the government’s proposed legislation for prostitution might violate the “freedom of expression” guaranteed by section 2(b) of the Charter.
Goguen’s attempt to make this point starts at the 96:50 mark of this video. The CBC has clipped the 90-second segment of his intervention that roiled the Internet yesterday.
To set the scene, Goguen is asking his questions of Timea Nagy, a former victim of human trafficking and founder of an organization that assists victims of human trafficking, who had earlier told the committee about being sexually assaulted by three Russian men during her time in the sex trade.
Here then is his first question, with its preamble.
Mr. Rummosanno [Goguen means Leo Russomanno, a lawyer appearing on behalf of the Criminal Lawyers’ Association], awhile ago, said that in his view C-36 was in breach of section 2(b), freedom of expression, and of course, the life and liberty and security of the person, section 7.
You were describing a scenario where you were being raped, I believe, by three Russians. Let’s suppose the police authorities would have broken in and rescued you. Would your freedom of expression have been in any way breached?
Nagy didn’t understand the question, so Goguen tried to clarify.
What I’m saying is that you weren’t freely expressing yourself by being raped by three men.
Nagy was still confused, so Goguen gives it another try.
If you were you rescued you wouldn’t feel that your rights were violated.
Kate Heartfield says Goguen should be kicked out of the Conservative caucus. Emmett Macfarlane says this is a new low in our politics and the headline writer for his piece wonders if this is the most offensive question ever asked by an MP.
We should always be cautious about too easily forgetting the awfulness of previous generations and earlier debates, so let’s simply deal with the particular stupidity of the particular question. Perhaps we can use this as a teachable moment.
Laura Beaulne-Stuebing has the transcript of Goguen’s attempt afterwards to explain to reporters the point he was trying.
… it was a mockery a little bit of the fact that, look, a prostitution bill was trying to save people who were being trafficked and violated could somehow be a breach of liberty of expression, when you don’t even have the choice to make that to be involved in the profession.
Emmett ventures that “What Mr. Goguen appears to have been getting at is that the Charter of Rights arguments critics have made against the bill are not relevant when human trafficking and rape are happening.”
It is likely worth going back and understanding the point that Leo Russomanno was trying to make about C-36. His “freedom of expression” comments begin at the 29:30 mark of yesterday’s second session here. Russomanno and his colleague, Anne Weinstein, also laid out this argument in a written briefing posted yesterday.
Essentially, the idea here is that by limiting a prostitute’s ability to communicate publicly for the purposes of arranging a transaction with a client, the law limits a prostitute’s ability to screen clients, which thus increases the potential for harm to the prostitute.
In Bedford, the evidentiary record strongly suggested that sex workers on the street—coincidentally those in the most danger—frequently used public communication as a way to screen potential clients for violent encounters. While the purpose of the impugned legislation was to avoid neighbourhood disruption and nuisance, the effect was the same: sex workers were prohibited from employing techniques to enhance their safety.
The section 7 argument is similar—that the regulations for prostitution could ultimately make prostitution more dangerous to practise. (If you watch past the 90-second clip that CBC posted, Goguen continues his line of questioning with section 7.)
If Goguen was interested in dismissing the concern, he might’ve attempted to do so directly. He could’ve asked Nagy for her thoughts on this idea about screening clients. He could have asked Emelie Laliberté, a sex worker seated right beside Nagy, if she agreed with Russomanno’s analysis. For that matter, he could have argued the point with Russomanno.
That last alternative is interesting to consider. Would Goguen have considered asking Russomanno the question he asked Nagy? Something like, “Mr. Russomanno, do you believe that a woman has a right to be raped and that that right is protected by section 2(b) of the Charter?” Probably Russomanno would have said no. Probably Russomanno would have noted that that is a rather ridiculous idea that completely ignores the actual issue in question.
This is somewhat in line with the Vic Toews school of public rhetoric. (Worried about what government legislation might mean for your privacy? You stand with the child pornographers.) Oversimplified attempts at point-scoring are, of course, rather common in our politics. Perhaps to such an extent that the participants might be lulled into forgetting how silly such attempts can sound to those who do not spend their professional lives trying to score points with oversimplified rhetoric. Also forgotten is how silly one can look when one’s attempt misses the mark. As a wise man once said, in trying to over-emphasize one’s point, one risks discrediting oneself.
But that’s not nearly as interesting nor as relevant as the issue Goguen was apparently attempting to mock: Will C-36 impair the ability of sex workers to legally protect themselves?
The Supreme Court’s Bedford ruling struck down s. 213(1)(c) of the Criminal Code, which outlawed public solicitation for the purposes of prostitution. The Supreme Court wrote that, “the purpose of the communicating prohibition in s. 213(1) (c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.”
C-36 restricts communication in places where a child could reasonably expect to be present and when Liberal MP Sean Casey suggested to Donald Piragoff, a senior assistant deputy minister at the justice department, that there wasn’t the difference between the old and new language, Piragoff begged to differ.
There’s a significant amount of difference. The first difference is the purpose of the legislation. The existing 213 was qualified as or interpreted by the Supreme Court as being essentially a nuisance offence. Basically it was to control nuisance on the street.
Bill C-36’s reformulation of 213 objective is to protect children from the harms of prostitution. It is to essentially prohibit soliciting in front of children because of the harms that may befall children and also drawing them in.
It is not geared to controlling the nuisance on the street. It is to protect children. It’s a different legislative objective so there’s a huge difference.
The other difference of course is it’s a lot narrower in scope. It only applies to places, not any place, but only to places where there’s a reasonable expectation that children would be present which means any place other than that a person is able to solicit legally.
Later, NDP MP Craig Scott came at the same issue from a second angle—that if is illegal for someone to solicit a prostitute, a prostitute’s ability to screen her clients will be impaired. Here is that exchange with Natalie Levman, counsel for the criminal policy section of the justice department.
Craig Scott: The minister earlier said that the ability to screen clients, as long as you take care not to be anywhere near anybody 18 years or under, in public would be available, but we also know that johns, the clients, cannot engage in the purchase anywhere at all, so I’m wondering whether or not you would accept that it’s still going to be a fleeting enterprise to be able, in public, to screen your clients, precisely because the johns are themselves criminalized for being in public with a prostitute and engaging in the transaction.
Nathalie Levman: The bill is clear that—you’re right—because one of the main objectives is to reduce prostitution, deter it and discourage it, purchasing and communicating for that purpose is criminalized in all places, which is consistent with the objectives of the bill to reduce prostitution itself. There is a lot of balancing of interests going on in Bill C-36 and it had to take into consideration many different safety issues.
As John Geddes asked last month, from a legal perspective, does the new bill’s stated objective override a potential Charter challenge on those grounds? Beyond the legalities, I suppose we might ask, is the bill morally or practically defensible in this regard?
Goguen’s question will ultimately matter much less than these very real questions.