ONTARIO SUPERIOR COURT OF JUSTICE TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT. and ATTORNEY GENERAL OF CANADA. and ATTORNEY GENERAL OF ONTARIO

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1 ONTARIO SUPERIOR COURT OF JUSTICE Court File No. 07-CV PD1 BETWEEN: TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT and ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL OF ONTARIO Applicants Respondent 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) Fax: (416) Solicitor for the Applicant, Terri Jean Bedford

2 TO: AND TO: Registrar Superior Court of Justice for Ontario 393 University Avenue 10 th Floor Toronto, ON M5G 1E6 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) Fax: (416) Solicitor for the Respondent AND TO: STACEY NICHOLS Neuberger Rose LLP 1392 Eglinton Avenue West Toronto, ON M6C 3E4 Tel: Fax: Solicitor for the Applicant, Valerie Scott AND TO RON MARZEL Barrister & Solicitor 1170 Sheppard Ave West, Unit 10 Toronto, ON M3K 2A3 Tel: Fax: 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: Fax: Solicitor for the Intervener, Attorney General of Ontario

3 Section PART I OVERVIEW Table of Contents Page Para The Nature of the Application The Impugned Provisions The Charter Argument The Legislative Facts and Other Evidence 7 16 PART II THE FACTS Applicants A. Terri Jean Bedford B. Amy Libovitch C. Valerie Scott The Experience of Violence in the Sex Trade A. Occupation at Risk Homicide and Serial Killers B. The Perception and Experience of Women Working in the Sex Trade (i) Wendy Harris (ii) Linda Shaikh (iii) Wendy Babcock (iv) Kara Gillies (v) Darlene Maurganne Mooney (vi) Carol-Lynn Strachan (vii) Susan Davis (viii) Jody Patterson (ix) Lauren Casey C. Observations and Opinion from a Journalist and a Member of Parliament (i) Dan Gardiner (ii) Libby Davies D. Expert Opinion (i) Gaps and Limitations in Current Sex Work Research (ii) Gayle MacDonald (iii) Frances M. Shaver (iv) Cecilia Benoit (v) Deborah Brock (vi) Eleanor Maticka-Tyndale (vii) Augustine Brannigan

4 E. The Expert Opinion of Professor John Lowman (i) Background (ii) Professor Lowman s General Conclusions (iii) Displacement and the 1984 Field Study (iv) The 1989 Evaluation (v) The 1995 Violence Study (vi) Professor Ronald Melchers Critique of Professor John Lowman (vii) Corroborative Studies Displacement and the Indoor/Outdoor Distinction Government Debates and Government Reports Since The Evidence Presented by the Attorney General (Canada) A. Introduction B. Melissa Farley (i) General Critique (ii) Generalizations and Unsubstantiated Claims (iii) Anecdote versus Evidence (iv) Concerns Respective Methodology (v) Flaws in Post-Traumatic Stress Disorder Assertions (vi) Indoor versus Outdoor Sex Work C. Janice Raymond D. Richard Poulin E. Alexis Kennedy International Developments A. Australia Mary Sullivan and Professor Barbara Sullivan B. New Zealand Dr. John Pratt C. Germany Janice Raymond D. The Netherlands Dr. Lotte Constance van de Pol E. Nevada Melissa Farley PART III ISSUES AND THE LAW Issues Purpose, Effect and Reasonable Hypotheticals The Legislative Objectives A. Communication Section 213(1)(c) B. Bawdy House Section C. Living on the Avails Section 212(1)(j) A Proper Understanding of Constitutionally Valid Legislative Objectives

5 5. The Elements of the Impugned Provisions A. Communication Section 213(1)(c) B. Bawdy House Section C. Living on the Avails Section 212(1)(j) The Constitutional Violations A. Introduction: Previous Challenges B. Fundamental Justice Rule of Law C. Fundamental Justice Arbitrary D. Fundamental Justice Overbreadth E. Fundamental Justice Gross Disproportionality F. Fundamental Justice and Reasonable Limits under s G. The Communication Law and Reasonable Limits under s H. Concluding Remarks on the Rule of Law PART IV ORDER REQUESTED Schedule A Authorities Referred To 239

6 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT and Applicants ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL OF ONTARIO Respondent Intervenor 1. The Nature of the Application MEMORANDUM OF FACT AND LAW PART I - OVERVIEW 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 of 243

7 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 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 The Applicant, Amy Lebovitch, has been a sex trade worker since 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 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 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab of 243

8 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

9 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 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

10 (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 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 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 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

11 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 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

12 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 revisited 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) 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 of 243

13 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 7 abhorred. 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 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) Toronto, ON Vol. 2, Tab Amy Lebovitch Sex Trade Worker Toronto, ON Vol. 2, Tab Terri Jean Bedford Former Sex Trade Worker Toronto, ON Vol. 3, Tab 16 6 MacKay v. Manitoba [1989] 2 S.C.R. 357 at Danson v. Ontario, [1990] 2. S.C.R at para of 243

14 Sex Trade Workers & Advocates 4. Wendy Babcock Street Health Toronto, ON Vol. 4, Tab Susan Davis Prostitution Alternatives Counselling and Education Society (PACE) Vancouver, BC Vol. 5, Tab Kara Gillies Maggie s Toronto, ON Vol. 6, Tab Wendy Harris Streetlight Halifax, NS Vol. 7, Tab Maruganne Mooney Sex Workers Community Alliance - Toronto, ON Vol. 7, Tab Jody Patterson Prostitutes Empowerment Education and Resource Society (PEERS) Vancouver, BC Vol. 7, Tab Linda Shaikh Former Sex Trade Worker Oshawa, ON Vol. 8, Tab 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 Brannigan 15. Professor Deborah Brock 16. Professor Elliot Leyton 17. Professor Gayle MacDonald 18. Professor Eleanor Maticka-Tyndale 19. Professor Cecilia Benoit 20. Professor John Lowman 21. Professor Frances Shaver Department of Sociology, University of Calgary Calgary, AB Department of Sociology, York University Toronto, ON Department of Anthropology & Archeology, Memorial University St. John s, NL Department of Women s Studies, St. Thomas University Fredericton, NB Department of Sociology, Anthropology and Criminology, University of Windsor Windsor, ON Department of Sociology, University of Victoria Victoria, BC Department of Criminology, Simon Fraser University Vancouver, BC Department of Sociology and Anthropology, Concordia University Montreal, QC Vol. 8, Tab 34 Vol. 9, Tab 35 Vol. 10, Tab 40 Vol. 11, Tab 42 Vol. 12, Tab 45 Vol. 13, Tab 48 Vol. 15, Tab 51 Vol. 24, Tab 55 9 of 243

15 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 nonprostitution 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 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 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 , of 243

16 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 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 of 243

17 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

18 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 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 Cross-Examination of Terri-Jean Bedford, Application Record, Vol. 2, Tab 12, pp Affidavit of Terri-Jean Bedford, Application Record, Vol. 2, Tab 11, p Affidavit of Terri-Jean Bedford, Application Record, Vol. 2, Tab 11, p Ibid,, p Ibid,, p Ibid,, p Ibid,, p Ibid,, p of 243

19 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 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 forms 21 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 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 Ibid,, p Ibid,, p Screening form for Prospective Clients, Application Record, Vol. 2, Tab 11(A), pp Affidavit of Terri-Jean Bedford, Application Record, Vol. 2, Tab 11, p Ibid,, p Ibid,, p Ibid,, p Cross-Examination of Terri-Jean Bedford, Application Record, Vol. 2, Tab 12, pp. 96, of 243

20 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 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, 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 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 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 Ibid,, p Ibid,, p Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p Ibid,, p Ibid,, p Cross-Examination of Amy Lebovitch, Application Record, Vol. 2, Tab 14, p Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p Cross-Examination of Amy Lebovitch, Application Record, Vol. 2, Tab 14, pp Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p Ibid,, p of 243

21 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 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 Cross-Examination of Amy Lebovitch, Application Record, Vol. 2, Tab 14, p Ibid,, pp Ibid,, p Cross-Examination of Amy Lebovitch, Application Record, Vol. 2, Tab 14, p Ibid,, p Affidavit of Amy Lebovitch, Application Record, Vol. 2, Tab 13, p Ibid,, p Ibid,, p Ibid,, p Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p of 243

22 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 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 Ibid,, p Ibid,, p Ibid,, p Ibid,, p Ibid,, p Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p Ibid,, p Ibid,, pp Ibid,, p Ibid,, p Ibid,, p Ibid,, p Ibid,, p Ibid,, p of 243

23 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 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 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 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 Ibid,, p 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 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p Ibid,, p CORP and National Action Committee on the Status of Women, Emergency Resolution, Application Record, Vol. 3, Tab 16(C), p Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p Ibid,, p Ibid,, p Cross-Examination of Valerie Scott, Application Record, Vol. 4, Tab, 17, p Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p of 243

24 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 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 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 Ibid,, p Ibid,, p 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 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, pp ; 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 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16, p Ibid,, p 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 Affidavit of Valerie Scott, Application Record, Vol. 3, Tab 16 p House of Commons, Minutes of Proceedings and Evidence of the Subcommittee on Solicitation, Application Record, Vol. 3, Tab 16(O), pp of 243

25 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 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 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 Eastside 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 Ibid,, p Statistics Canada, Homicide in Canada, 2000 by Orest Fedorowycz (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2001), Application Record, Vol. 86, Tab 167, p ; Statistics Canada, Homicides in Canada, 2001 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2002), Application Record, Vol. 86, Tab 168, p ; Statistics Canada, Homicide in Canada, 2002 by Josee Savoie (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2003, Application Record, Vol. 86, Tab 169, p ; Statistics Canada, Homicide in Canada, 2003 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justic Statistics, 2004), Application Record, Vol. 86, Tab 170, p ; Statistics Canada, Homicide in Canada, 2004 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2005), Application Record, Vol. 86, Tab 171, p ; 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 Statistics Canada, Homicide in Canada, 2001 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2002), Application Record, Vol. 86, Tab 168, p Statistics Canada, Homicide in Canada, 2002 by Josee Savoie (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2003, Application Record, Vol. 86, Tab 169, p ; Statistics Canada, Homicide in Canada, 2003 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justic Statistics, 2004), Application Record, Vol. 86, Tab 170, p ; Statistics Canada, Homicide in Canada, 2004 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2005), Application Record, Vol. 86, Tab 171, p of 243

26 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 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 Statistics Canada, Homicide in Canada 2006 by Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2007), Application Record, Vol. 86, Tab 173, p Statistics Canada, Homicide in Canada, 2007 by Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2008), Application Record, Vol. 86, Tab 174, p 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 Affidavit of Suzanne Wallace-Capretta, Application Record, Vol. 64, Tab 128, pp Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154, p Ibid,, p of 243

27 aimed at removing them from main prostitution strolls simply forced them to work in more isolation, increasing the danger to them 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 hellhole 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 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 Seven of the prostitutes killed were juveniles aged all females. During this period, known prostitutes accounted for 5% of all female homicides 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 figure 99 ; 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 Statistics Canada, Street Prostitution in Canada by Doreen Duchesne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 1997), Application Record, Vol. 86, Tab 166, p Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4156, para Cross-Examination of John Lowman (Volume 2), Application Record, Vol. 22, Tab 53, pp In crossexamination 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 of 243

28 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 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 It reports that in the three years from , 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 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 Ibid,, p of 243

29 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 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 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 Federal/Provincial/Territorial Working Group On Prostitution, Application Record, Vol. 79, Tab 160, p ; Statistics Canada, Street Prostitution in Canada by Doreen Duchesne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 1997), Application Record, Vol. 86, Tab 166, p 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 l. 10 p l Victimization of Prostitutes in Calgary and Winnipeg, Application Record, Vol. 8, Tab 34(D), pp 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 of 243

30 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 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 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 , paras ; 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 , paras. 10, 12; Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, pp , para. 8; Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p , paras. 7, 14-15; Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, pp , 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 , paras. 4, 6; Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, pp , 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 , para. 9; Affidavit of Eleanor Maticka-Tyndale, Application record, Vol. 12, Tab 45, pp. 3093, , 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 ; Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, pp , paras ; 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 ; Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp. 6810, paras. 10, 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 l. 21 p l. 8; Affidavit of Elliot Leyton, Application Record, Vol. 10, Tab 40, p. 2680, para Cross-examination of Jim Morrissey, Application Record, Vol. 34, Tab 79, p Cross-examination of Sonia Joyal, Application Record, Vol. 36, Tab 89, p Ibid,, pp.10590, Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p of 243

31 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 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 crossexamination he stated: Q. But what happened in Downtown Eastside Vancouver and in Edmonton, it could happen here too? A. Sure. 115 Ibid,, p Cross-examination of Oscar Ramos, Application Record, Vol. 36, Tab 87, pp ; Affidavit of Libby Davies, Application Record, Vol.9 Tab 37, pp of 243

32 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 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 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 Cross-examination of Eduardo Dizon, Application Record, Vol. 37, Tab 92, p Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p 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 of 243

33 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 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 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 Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, pp Ibid,, p Ibid,, p Elliot Leyton, Hunting Humans McClelland & Stewart, 2005, Application Record, Vol. 10, Tab 40(D), pp Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p Ibid,, pp of 243

34 suspects that prostitutes make up close to half of all serial killer victims. 129 However, on crossexamination, he conceded that there is no hard data on this point 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) 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 , Ms. Harris worked with Streetlight, an advocacy and outreach program designed to 129 Ibid., p Cross-Examination of Elliot Leyton, Application Record, Vol. 10, Tab 41, p Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p Affidavit of Elliott Leyton, Application Record, Vol. 10, Tab 40, p Ibid., p Ibid., p Ibid., p Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, p of 243

35 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 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 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 Ibid., p Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, p &, Cross-Examination of Wendy Harris, Application Record, Vol. 7, Tab 28, p Cross-Examination of Wendy Harris, Application Record, Vol. 7, Tab 28, p Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, p Cross-Examination of Wendy Harris, Application Record, Vol.7, Tab 28, p Affidavit of Wendy Harris, Application Record, Vol. 7, Tab 27, p Affidavit of Linda Shaikh, Application Record, Vol. 8, Tab 31, p Ibid., p of 243

36 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 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 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 29 th, 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 Ibid., p Ibid., p Affidavit of Linda Shaikh, Application Record, Vol. 8, Tab 31, p Ibid., p Ibid., p Ibid., p Ibid., p Ibid., p Ibid., p Affidavit of Wendy Babcock, Application Record, Vol. 4, Tab 19, p Cross-Examination of Wendy Babcock, Application Record, Vol. 4, Tab 20, p Ibid., p of 243

37 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 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 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 Ibid., p 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 Statistical compilation of the incidences of violence against sex workers gathered by Wendy Babcock, Application Record, Vol. 9, Tab 19(B), pp Ibid., pp Affidavit of Wendy Babcock, Application Record, Vol. 4, Tab 19, p Ibid., p of 243

38 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 She has resided in the Toronto area since 1970 and began working in the sex trade in 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 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 Ms. Gillies has been involved in various positions from 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 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p Ibid., p Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1447, l Ibid., p. 1448, ll Ibid., p. 1448, ll Ibid., p. 1448, ll 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 Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, pp. 1297, of 243

39 that the criminalization of prostitution creates barriers to health, status and social well-being for women in the sex trade 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 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 Curriculum Vitae of Kara Gillies, Application Record, Vol. 6, Tab 24(B), p Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p Ibid., p Ibid., p Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1477, l Ibid., p. 1464, ll Ibid., p. 1464, ll of 243

40 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 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 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 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 pimps 191 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 Ibid., p Ibid., p Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1492, ll Ibid., ll Affidavit of Kara Gillies, Application Record, Vol. 6, Tab 24, p Ibid., p Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1528, ll Ibid., p. 1526, ll of 243

41 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 Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1528, ll Cross-examination of Kara Gillies, Application Record, Vol. 6, Tab 25, p. 1528, ll Cross Ibid., p l. 21 p l Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p Ibid., p Ibid., p Ibid., p Ibid., p of 243

42 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 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 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 Ibid., p Ibid., p Ibid., pp Ibid., p Ibid., p Ibid., p Ibid., pp Ibid., p of 243

43 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 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 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 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 Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p Ibid., p Invisible Tragedy: Aboriginal Women s Issues & Sex Work, Application Record, Vol. 7, Tab 29(B), p Ibid., p Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, p CUPE, Sex Work: Why It s A Union Issue, Application Record, Vol. 7, Tab 29(F), p of 243

44 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 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 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 Ibid., p Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p Cross-Examination of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 33, p Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p Ibid., p Ibid., p Ibid., p Ibid., p of 243

45 a time. Women have complained of being taken approximately 30 miles out of town and then forced to walk back 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 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 ( 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 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 Ibid., p Ibid., p Weber, Bob, Police ID body found near Edmonton to be prostitute; adds to Project KARE, Application Record, Vol. 8, Tab, 32(C), p Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p Ibid., p Ibid., p Ibid., p 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 of 243

46 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 security 241 the clients were well aware that someone was always with me, looking out for my well being 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 Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p Ibid., p Ibid., p Ibid., p Cross-Examination of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 33, p Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p Ibid., p Ibid., p Ibid., p Ibid., p 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 Cross-examination of Susan Davis, Application Record, Vol. 5, Tab 23, p. 1176, l Ibid., p ll of 243

47 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 streets 250. 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 bikers 252. 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 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 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 Ibid., p Cross-examination of Susan Davis, Application Record, Vol. 5, Tab 23, p l. 14 p l. 8, p l. 12 p l Ibid., p. 1186, ll Ibid., pp Ibid., p. 1190, ll Ibid., pp. 1186, Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p Ibid., p Ibid., p Ibid., p of 243

48 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 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 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 Ibid., p Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p Ibid., p Ibid., p Ibid., p Ibid., p Ibid., p Living in Community: Balancing Perspectives on Vancouver s Sex Industry Action Plan, September 2006, Application Record, Vol. 5, Tab 22(B), p Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, pp of 243

49 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 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 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 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p From the Curb: Sex Workers Perspectives on Violence and Domestic Trafficking, Application Record, Vol. 5, Tab 22(C), p From the Curb: Sex Workers Perspectives on Violence and Domestic Trafficking, Application Record, Vol. 5, Tab 22(C), p Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p From the Curb: Sex Workers Perspectives on Violence and Domestic Trafficking, Application Record, Vol. 5, Tab 22(C), p Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p Ibid., p Ibid., p Cross-examination of Susan Davis, Application Record, Vol. 5, Tab 23, p ll Ibid., p. 1195, ll of 243

50 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 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 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 Affidavit of Susan Davis, Application Record, Vol. 5, Tab 22, p Ibid., p Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p Ibid., p Ibid., p PEERS Website Promotional Materials, Application Record, Vol. 7, Tab 30(A), p Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p PEERS Website Promotional Materials, Application Record, Vol. 7, Tab 30(A), p Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p Ibid., p PEERS Website Promotional Materials, Application Record, Vol. 7, Tab 30(A), p of 243

51 102. 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 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 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 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 Ibid., p Ibid., p Ibid., pp Ibid., p Bad Trick Report, Application Record, Vol. 7, Tab 30(C), pp Affidavit of Jody Paterson, Application Record, Vol. 7, Tab 30, p Ibid., p Ibid., p of 243

52 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 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 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 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 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7457, l 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 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p Ibid., p Ibid., p 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 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, pp , l.17-25, of 243

53 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 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 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 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 Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p Interview Questions used for Indoor Escort Participants, Application Record, Vol. 26, Tab 58(C), pp Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p 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 l. 8 p l Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p 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 Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7530, ll Behind Closed Doors: Summary of Findings, Application Record, Vol. 26, Tab 59(A), p Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p of 243

54 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 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 wellbeing. 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 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 Canada 329, and comparing the sex industries in 320 Ibid., p Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p Ibid., p Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7462, ll Affidavit of Lauren Casey, Application Record, Vol. 26, Tab 58, p Ibid., p Cross-examination of Lauren Casey, Application Record, Vol. 26, Tab 59, p. 7469, ll Ibid., p. 7467, ll Curriculum Vitae of Dan Gardner, Application Record, Vol. 10, Tab 38(A), p 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

55 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 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 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 , paras. 1-2, 6-7, Cross- Examination of Dan Gardiner, Application Record, Vol. 10, Tab 39, p l. 21 p l Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, p. 2531, para Ibid., p. 2528, para Dan Gardiner, The Hidden World of Hookers Ottawa Citizen, 8 June 2002, Application Record, Vol. 10, Tab 38(D), pp Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, p. 2528, para Ibid., p. 2528, paras Dan Gardiner, Courting Death Ottawa Citizen, 15 June 2002, Application Record, Vol. 10, Tab 38(B), p Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, p. 2530, para Ibid., pp , para of 243

56 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 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 She moved to Vancouver in 1969 where she currently resides. Ms. Davies served five consecutive terms on Vancouver City Council beginning in From , 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 , Ms. Davies sat on the Subcommittee on Solicitation Laws, Subcommittee of the Justice, Human Rights, Public Safety and Emergency Preparedness Standing Committee 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 , para Cross-examination of Dan Gardiner, Application Record, Vol. 10, Tab 39, p ll. 9-11, p ll Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, pp , para. 5; Dan Gardiner, Courting Death Ottawa Citizen, 15 June 2002, Application Record, Vol. 10, Tab 38(B), p Affidavit of Dan Gardner, Application Record, Vol. 10, Tab 38, p. 2531, para Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p Ibid., p of 243

57 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 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 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 Ibid., p Davies, Libby, How to save a prostitute: decriminalization is needed to protect women, Application Record, Vol. 9, Tab 37(A), pp Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p 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 Affidavit of Libby Davies, Application Record, Vol.9, Tab 37, pp 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 Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p Davies, Libby, How to save a prostitute: decriminalization is needed to protect women (26 March 2006), Application Record, Vol. 9, Tab 37(A), pp of 243

58 street prostitution in Canada. 355 There was also consensus within the 2006 Subcommittee that the current legal regime was not working 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 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 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 Davies, Libby, How to save a prostitute: decriminalization is needed to protect women (26 March 2006), Application Record, Vol. 9, Tab 37(A), pp Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p Ibid., p Davies, Libby, How to save a prostitute: decriminalization is needed to protect women (26 March 2006), Application Record, Vol. 9, Tab 37(A), pp Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, p Davies, Libby, How to save a prostitute: decriminalization is needed to protect women (26 March 2006), Application Record, Vol. 9, Tab 37(A), pp Affidavit of Libby Davies, Application Record, Vol. 9, Tab 37, pp 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 of 243

59 122. 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 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 of 243

60 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 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 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 of 243

61 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 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 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 , Application Record, Vol. 30, Tab 64(I), p. 8730; Affidavit of Ronald Weitzer, Application Record, Vol. 30, Tab. 64, pp , para. 10; Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, pp , para. 46; Affidavit of Melissa Farley, Application Record, Vol. 49, Tab 113, pp , , 14258, paras. 20, 35, 38, Affidavit of Ronald Weitzer, Application Record, Vol. 30, Tab. 64, pp , para of 243

62 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

63 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 368 themselves and their networks (Heckathorn, 1997) 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 Benoit, Cecilia et. al., Community-Academic Research on Hard-to-Reach Populations: Benefits and Challenges, Application Record, Vol. 14, Tab 49(C), pp of 243

64 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 prostitution 369 In cross-examination, Professor Ron Weitzer agreed that many of these areas, especially those related to indoor sex work, remain under-researched 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 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 Cross-examination of Ronald Weitzer, Application Record, Vol. 31, Tab 65, p l. 17 p l 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

65 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 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 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 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 , para Ibid., p. 2772, para Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), p Ibid., p Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, p. 2772, para Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), p Ibid., p Ibid., pp Ibid., p Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, pp , paras of 243

66 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 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 communitybased 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 Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, p. 2771, paras ; Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), p Affidavit of Gayle MacDonald, Application Record, Vol. 11, Tab 42, p. 2771, para Leslie Ann Jeffery and Gayle MacDonald, Sex Workers in the Maritimes Talk Back, Application Record, Vol. 11, Tab 42(B), pp Ibid., p 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 Curriculum Vitae of Frances Shaver, Application Record, Vol. 24, Tab 55(A). 61 of 243

67 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 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 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 , para. 1; Cross-Examination of Frances Shaver, Application Record, Vol. 25, Tab 56, p l. 21 p l 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 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp , 6814, paras , 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 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, p. 6817, para Jacqueline Lewis, Frances Shaver and Kara Gillies, Health, Security & Sex Work, Application Record, Vol. 24, Tab 55(F), p 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 of 243

68 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 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 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 Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp , para. 19; Jacqueline Lewis, Frances Shaver and Kara Gillies, Health, Security & Sex Work, Application Record, Vol. 24, Tab 55(F), p Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, pp , para Ibid., pp , 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 , paras Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, pp , 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 of 243

69 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 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% 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 Ibid., pp Ibid., pp Ibid., p of 243

70 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 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 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 Ibid., p Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, p. 3421, para 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 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, p. 3423, para 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 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 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, pp , para Ibid., p. 3422, para of 243

71 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 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 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 Affidavit of Cecilia Benoit, Application Record, Vol. 13, Tab 48, pp , paras ; 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 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 Curriculum Vitae of Deborah Brock, Application Record, Vol. 9, Tab 35(A), p Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, pp , paras Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary, Application Record, Vol. 9, Tab 25(C). 66 of 243

72 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 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 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 , para. 6; Except from Deborah Brock, Making Work, Making Trouble: Prostitution As a Social Problem, Application Record, Vol. 9, Tab 35(D), pp Except from Deborah Brock, Making Work, Making Trouble: Prostitution As a Social Problem, Application Record, Vol. 9, Tab 35(D), p Ibid., p Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, pp , paras. 4-5; Except from Deborah Brock, Making Work, Making Trouble: Prostitution As a Social Problem, Application Record, Vol. 9, Tab 35(D), pp 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 Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary, Application Record, Vol. 9, Tab 25(C), p Except from Deborah Brock, Making Work, Making Trouble: Prostitution As a Social Problem, Application Record, Vol. 9, Tab 35(D), p Ibid., p of 243

73 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 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 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 Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary, Application Record, Vol. 9, Tab 25(C), pp Ibid., p Affidavit of Deborah Brock, Application Record, Vol. 9, Tab 35, pp , paras. 9, Curriculum Vitae of Eleanor Maticka-Tyndale, Application Record Vol. 12, Tab 45(A), p Ibid., pp 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 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, p. 3092, para of 243

74 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 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 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 Dr. Maticka-Tyndale s research also illustrates significant problems with police attitudes and actions towards sex workers due to the quasi-criminalization of the industry 449. 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 Ibid., pp , 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 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, pp , para Ibid., p. 3095, paras Ibid., pp , paras Ibid., p. 3094, paras 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 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, p. 3097, para of 243

75 traditionally ineffective, unresponsive or condescending responses, including outright harassment and perceived entrapment 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 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 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 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 Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, pp , paras ; 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 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, Affidavit of Eleanor Maticka-Tyndale, Application Record, Vol. 12, Tab 45, pp , paras 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 of 243

76 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 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 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 Ibid., p Ibid., pp Ibid., pp. 2066, Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, p. 1968, para Research Section, Department of Justice, Street Prostitution: Assessing the Impact of the Law: Synthesis Report, Application Record, Vol. 75, Tab Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp , para Augustine Brannigan, Technical Report Victimization of Prostitution in Calgary and Winnipeg, Application Record, Vol. 8, Tab 34(D), p Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp , para of 243

77 that Canada s criminal laws impose a fundamentally unsafe working environment on sex workers 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 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 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 Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp , para 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 , paras Augustine Brannigan, Technical Report Victimization of Prostitution in Calgary and Winnipeg, Application Record, Vol. 8, Tab 34(D), p Ibid., p Ibid., pp Ibid., pp , 2178; Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp , paras Augustine Brannigan, The Postmodern Prostitute: A Thematic Review of Recent Research (1993) Criminal Justice History 275, Application Record, Vol. 8, Tab 34(B), pp Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp , paras. 4, of 243

78 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 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 In , 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 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 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, pp ; 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 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 of 243

79 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 From , 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 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 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4146, para Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p , para. 25; Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p of 243

80 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 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 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 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 Ibid., p. 4149, para Supplementary Affidavit of John Lowman, Application Record, Vol. 20, Tab 52, pp of 243

81 constitutionality of the bawdy house law but charges were eventually stayed in 2004 and no determination was made on the constitutional issue 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 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 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, p Ibid., Vol. 21, Tab 53, pp. 6019, of 243

82 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 Cross-examination of John Lowman (Volume Two), Application Record, Vol. 22, Tab 53, pp 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 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 ; Lowman, John Vancouver Field Study of Prostitution Research Notes, Application Record, Vol. 16, Tab 51(F), p 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 of 243

83 176. 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 It was not until those nuisance injunctions that residents of Mount Pleasant began to experience problems with street prostitution in that residential area 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 orangelight 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 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 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 , of 243

84 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 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 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 Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p Lowman, John Vancouver Field Study of Prostitution Research Notes (October 1984), Application Record, Vol. 16, Tab. 51(F), p Ibid., pp 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 Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, pp , of 243

85 (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 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 available 506, 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 Ibid., pp Ibid., p Ibid., p Ibid., p Ibid., p Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, pp , para of 243

86 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 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 onstreet/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 Lowman, John Street Prostitution: Assessing the Impact of the Law-Vancouver Research Section, Department of Justice, Application Record, Vol. 17, Tab 51(G), p Cross-examination of John Lowman (Volume One), Application Record, Vol. 21, Tab 53, pp Ibid., p Ibid., p l. 18 p l of 243

87 184. 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 ; 5) review of newspaper articles on prostitution from ; 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 participants 514. Of these participants all had experience working the streets, 29 participants had only worked the streets (45%) and 15 persons currently worked offstreet (23.2%) with 36 participants having worked off-street at sometime in the past (55%) 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 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 Ibid., p Ibid., p Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p. 4154, para Ibid., p. 4155, para Ibid., p. 4163, para Lowman, John & Fraser, J., Violence against Persons who Prostitute: The Experience in British Columbia, Application Record, Vol. 18, Tab 51(H), pp of 243

88 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 Responses % of Cases Count % of Responses % of Cases General Harassment Threat/intimidation Had/use knife Dumped Refused condom Beating Robbery Sexual Assault Had/used gun Unwanted acts Kidnap/confine Strangling Other weapon Attempt murder Other Total 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 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 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

89 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 Answers to Undertakings from the Cross-examination of John Lowman, Application Record, Vol. 23, Tab 54, pp of 243

90 (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 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 523 any variations over time are trivial to the extent they can be reliably known. Despite the strong language in condemning Professor Lowman s research it became apparent in crossexamination 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 Cross-Examination of Ronald-Frans Melchers, Application Record, Vol. 61, Tab 124, p Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, pp of 243

91 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 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 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 quasiexperimental 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 Supplementary Affidavit of John Lowman, Application Record, Vol. 20, Tab 52, p of 243

92 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 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) 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 Ibid., p of 243

93 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 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 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: Cross-Examination of Ronald-Frans Melchers, Application Record, Vol. 61, Tab 124, p Ibid., p Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, p Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, p ; Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, p Affidavit of John Lowman, Application Record, Vol. 15, Tab 51, p of 243

94 Year # of sex worker homicides * 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 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 Ibid., pp 17803, Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, p Affidavit of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 122, p of 243

95 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 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 , of 243

96 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 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 crossexamination: 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 Ibid., Vol. 61, Tab 124, p of 243

97 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

98 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 of 243

99 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 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 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 , Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, p l. 20 p l of 243

100 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 ; 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 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 Many of the Applicants witnesses deposed that law enforcement led to a negative effect of displacement Street Prostitution: Assessing the Impact of the Law, Application Record, Vol. 75, Tab 157, p Affidavit of Darlene Maurganne Mooney, Application Record, Vol. 7, Tab 29, pp , para. 16; Affidavit of Jody Patterson, Application Record, Vol. 7, Tab 30, pp , paras. 11, 15; Affidavit of Carol-Lynn Strachan, Application Record, Vol. 8, Tab 32, p , para. 9; Affidavit of Augustine Brannigan, Application Record, Vol. 8, Tab 34, pp. 1967, , paras. 4, 14; Augustine Brannigan, Technical Report Victimization 95 of 243

101 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 crossexamination: 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 ; 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 ; Affidavit of Frances Shaver, Application Record, Vol. 24, Tab 55, p. 6814, para Affidavit of Detective Howard Page, Application Record, Vol. 34, Tab 81, p , para. 13; Affidavit of JoAnn McCartney, Application Record, Vol. 35, Tab 82, p , para. 11; Affidavit of Detective Constable Michelle Holm, Application Record, Vol. 35, Tab 83, pp , para. 16; Affidavit of Detective Sgt. Gene Bowers, Application Record, Vol. 35, Tab 85, pp , paras Cross-Examination of Oscar Ramos, Application Record, Vol. 36, Tab 87, p of 243

102 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 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 l. 3 p l 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

103 Committee on Justice and Human Rights stated that street prostitution accounts for just 5% to 20% of all prostitution activity in this country 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 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 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 There was an almost equal charging of men and women for incidents of communication: 49% and 51% respectively 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 , para. 12; Cross-Examination of Detective Constable Eduardo Dizon, Application Record, Vol. 37, Tab 92, pp , 10768; Dan Gardiner, The Secret World of Hookers Ottawa Citizen, 8 June 2002, Application Record, Vol. 10, Tab 38(D), pp Report of the Standing Committee on Justice and Human Rights, Application Record, Vol. 82, Tab 164, p Street Prostitution in Canada, Statistics Canada Report, Application Record, Vol. 86, Tab 166, p Affidavit of Suzanne Wallace-Capretta, Application Record, Vol. 64, Tab 128, pp of 243

104 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 Toronto 552 ) due to the labourintensive nature of bawdy house investigations 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 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 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 Affidavit of Detective Howard Page, Application Record, Vol. 34, Tab 81, p , para Ibid., p , paras ; Affidavit of Detective Constable Michelle Holm, Application Record, Vol. 35, Tab 83, p , para. 21; Cross-Examination of Detective Constable Oscar Ramos, Application Record, Vol. 36, Tab 87, pp Affidavit of T.D., Application Record, Vol. 33, Tab 72, p Affidavit of P.M., Application Record, Vol. 33, Tab 77, pp Cross-Examination of Detective Jim Morrissey, Application Record, Vol. 34, Tab 79, pp ; Cross- Examination of Detective Oscar Ramos, Application Record, Vol. 36, Tab 87, pp ; Cross-Examination of Detective Constable Eduardo Dizon, Application Record, Vol. 34, Tab 94, pp of 243

105 A: Well, they re trying to keep these girls safe. Q: Do you really think that s why they do license? A: Yeah 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 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 Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, Application Record, Vol. 71, Tab 154(B), p of 243

106 Study Citation Location Population Work Area Susan Davis (with Raven Bowen), From the Curb: Sex Workers Perspectives on Violence and Domestic Trafficking Kara Gillies (co-author), Bound By Law: How Canada s Protectionist Public Policies in the Areas of Both Rape and Prostitution Limit Women s Choices, Agency and Activities Jody Paterson, PEERS Survey of 57 Sex Workers Augustine Brannigan, Street Prostitution Assessing the Impact of the Law Augustine Brannigan, Technical Report Victimization of Prostitution in Calgary and Winnipeg Deborah Brock, Making Work, Making Trouble: Prostitution as a Social Problem Jeffrey, Leslie Anne & Gayle MacDonald, Sex Workers in the Maritimes Talk Back Eleanor Maticka-Tyndale and Frances Shaver, Safety, Security and the Well-Being of Sex Workers Lewis, Jacqueline & Eleanor Maticka-Tyndale Licensing Sex Work: Public Police and Women s Lives Cecilia Benoit and Alison Millar, Dispelling Myths and Understanding Realities Working Conditions, Health Status, and Exiting Experiences of Sex Workers Vol. 5, Tab 22(C) Vol. 6, Tab 24(A) Vol. 7, Tab 30(B) Vol. 8, Tab 34(C) Vol. 8, Tab 34(D) Vol. 9, Tab 35(D) Vol. 11, Tab 42(B) Vol. 12, Tab 45(B) Vol. 12, Tab 45(C) Vol. 13, Tab 48(B) Prince George, White Rock, Vancouver, Kamloops, Guildford, Surrey Halifax, Montreal, Ottawa, Edmonton, Toronto, Vancouver British Columbia Calgary, Winnipeg, Regina Calgary, Winnipeg 112 sex workers Indoor & Outdoor 56 Sex workers Outdoor 57 Sex workers 25% indoor, 25% outdoor, 50% worked in both 70 sex workers Outdoor (with additional sources) 16 sex workers Outdoor (with additional sources) Toronto 2 sex workers Indoor Halifax, Moncton, St. John Toronto, Montreal Windsor Metropolitan Victoria 66 sex workers > 90% outdoor workers 120 sex workers Indoor & Outdoor 18 sex workers (with additional sources) 201 current and former sex workers Indoor Indoor & Outdoor 101 of 243

107 Frances M. Shaver, Sex Work Police: An Integrated Approach Frances M. Shaver, et. al., Health, Security & Sex Work Policy Frances M. Shaver, Risk and Risk Management in Sex Work and Hospital Work Lauren Casey, Behind Closed Doors: Summary of Findings November 2008 Vol. 24, Tab 55(E) Vol. 24, Tab 55(F) Vol. 24, Tab 55(K) Vol. 26, Tab 59(A) San Francisco, Toronto, Montreal Three major Canadian Cities Montreal, Toronto Victoria 400+ sex workers 150+ sex workers 60 sex workers (with additional sources) 88 sex workers (with additional sources) Outdoor Indoor & Outdoor Outdoor Indoor 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 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 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 Assessing the Violence Against Street-Involved Women in the Downtown East Side/Strathcona Community, Application Record, Vol. 19, Tab 51(M), p Cross-Examination of Ronald Frans-Melchers, Application Record, Vol. 61, Tab 124, p of 243

108 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 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 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 Ibid., p Ibid., p Violence Against Women in Vancouver s Street Level Sex Trade and the Police Response, Application Record, Vol. 19, Tab 51(N), p Ibid., p Violence Against Women in Vancouver s Street Level Sex Trade and the Police Response, Application Record, Vol. 19, Tab 51(N), p of 243

109 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 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 21 st 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 % 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 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 Ibid., p Ibid., p Ibid., p Ibid., p Ibid., p of 243

110 Table 124: Changes in Violence Violence 1994 Frequency Violence % (Missing values removed) Violence 1994 Violence (Percentage change in brackets) General harassment (+13.7%) Threat/intimidation (+4.4%) Had use knife Dumped Refused condom (+ 41%) Beating* (+ 12.5%) Robbery (+ 16.6%) Sexual Assault** 23 81* * (+ 8.7%) Had used gun Unwanted acts Kidnap/Confine (+ 9.6%) Strangling Other weapon Attempted Murder (+ 23.4%) Other Threatened with a weapon Assault with a weapon w/o rape A weapon was used during 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

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112 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