REPORT TO SAINT JOHN BOARD OF POLICE COMMISSIONERS PUBLIC SESSION Chairman Waldschutz and Members: SUBJECT Report on Common Council Resolution respecting Sex Trade Workers BACKGROUND A resolution was received at the December 04, 2012 meeting of the Saint John Board of Police Commissioners that Common Council request that the Saint John Police Commission submit a report within 30 days regarding the feasibility of using existing City By-Laws such as the Sidewalk By-Law and Traffic By-law to be more proactive in removing prostitutes from the uptown area, specifically on Cliff Street, Coburg Street, Paddock Street, Peter Street, Garden Street and Waterloo Street. The Board has by resolution referred the Common Council request to the Chief of Police, requiring a report for the next meeting of the Board. At the same meeting, the Board heard presentations on the subject from representatives of AIDS Saint John and from Councilor Fullerton. Beyond the specifics of the Common Council request, the presenters and the Board members were unified in their concern for the public safety and qualityof-life of all those involved.
Page 2 THE LEGISLATIVE, JUDICIAL & STRATEGIC CONTEXT Enforcement by the Saint John Police Force is enabled and bounded by legislative (e.g., Criminal Code), judicial (e.g., case law) and strategic directives. The Criminal Code (legislation) does not prohibit adult prostitution (that is, prostitution per se is not illegal) yet many of the activities surrounding it are, making it difficult to engage in prostitution without committing a crime. As a result, persons selling sexual services or coerced into adult prostitution in Canada risk criminal sanctions for engaging in an activity that is not itself illegal. Those most likely to be criminalized are primarily vulnerable women facing various difficulties including poverty, homelessness and drug dependency. They also engage in the most dangerous type of prostitution, street prostitution. 1 The activity cited in the Common Council resolution is primarily linked to street prostitution in the identified areas. The only sections of the Criminal Code that address adult prostitution (Sections 210-213) forbid communication for the purposes of prostitution in a public space; keeping or occupying a bawdy house; or procurement. It is significant that Criminal Code limitations on solicitation (the sex trade), and the absence of further limitations on the sex trade under the Criminal Code, effectively preclude the use of Provincial legislation or regulation (including municipal by-laws or regulation) to address the sex trade. It is a fundamental tenet of the Canadian Constitution Act that constitutional distribution of legislative powers in order of precedence assigns powers of national interest to the Parliament of Canada (including criminal law); powers of local nature to Provincial Legislatures; concurrent and shared powers between the two levels of government (old age pensions, immigration, agriculture, environment and health); and residuary power conferred on the federal parliament ( the power to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects not assigned exclusively to the Legislatures of the Provinces.) In short, because the Criminal Code addresses prostitution, only federal powers under the Act can address prostitution.
Page 3 The judicial context of law enforcement is formulated through case law a system of jurisprudence based on judicial precedents rather than statutory laws. To the point at hand, Westendorp ( v. The Queen, [1983] 1 S.C.R. 43) was a decision of the Supreme Court of Canada on the Constitution's criminal law power. A unanimous Court found that a municipal-by law, which prohibited standing in the street for the purpose of prostitution, was struck down as ultra vires of the provincial government as the law was found to be one of criminal law... its true purpose was not to keep the streets safe but to control or punish prostitution. 2 From a strategic perspective, the Saint John Police Force looks to the Mission Statement and Intelligence-Led Policing business model of the Business Plan. The Mission Statement of the Police Force (capturing the essence and ethics of the Force in the fewest possible words) is Police and the Community Working Together for a Safer Saint John. We Serve and Protect with Respect Respect is extended equally to all those served by the Force: residents, visitors, business owners, victims and offenders. Status under the law does not confer or diminish respect for the individual; respect is an essential element of civil society and ethical policing. The operational side of the strategic context is expressed by the Force s Intelligence-Led Policing (ILP) business model. The ILP business model very successfully focuses on crime reduction through a process of evidence based analysis, definition of the crime problem, identification of the root cause(s) of the crime problem, implementation of crime reduction strategies to resolve the crime problem and root causes of the problem, and evidence based evaluation to determine if additional strategies should be layered upon earlier strategies. ILP strategies are often determined and implemented in cooperation with community partners, and may include initiatives that extend beyond traditional policing. The maxim Law enforcement whenever necessary, but not necessarily law enforcement has been aptly coined by the Force to describe this progressive policing paradigm.
Page 4 ABOUT SEX TRADE WORKERS IN SAINT JOHN Police Force knowledge about the nature and circumstances of sex trade workers in Saint John is informed through enforcement activities; victim services; partnership with prevention, education, advocacy and support agencies such as AIDS Saint John and STAC (Sex Trade Action Committee); calls for service; research and analysis. In the end, it is the face-to-face interaction with the street based sex trade worker that is most informative and most compelling. Often the street based sex trade is described as survival sex, meaning that it is prostitution engaged in by people in extreme need who are homeless or otherwise disadvantaged in society; trading sex for food, a place to sleep, or other basic needs, or for drugs or for money to satisfy those needs. Street prostitution is also often recognized as the most dangerous type of prostitution. In combination street prostitution as survival sex is in many ways more of a safety and social problem for the sex trade worker, than a crime problem for the community (although it may also be a crime problem.) AIDS Saint John advises that the top three issues driving street based sex trade are addictions, mental health, and poverty. From that perspective street based sex trade is a symptom of social problems the root cause of which are addictions (access to treatment), mental health (treatment and support), and poverty (particularly access to affordable housing.) The Honourable Wally Oppal in his Report of the Missing Women Commission of Inquiry arrives at a similar conclusion when he states there are symbiotic relationships between poverty, drug addiction and the survival sex trade. 3 (p. 24) The Saint John Police Force Intelligence-Led Policing experience indicates that addressing the root cause of social and crime problems is the most effective and sustainable way to reduce social and crime problems. Gabor Maté a Canadian physician and bestselling author, with a focus on understanding the broader context in which human disease and disorders arise notes that many addicts that are sex trade workers do so exclusively to finance their habit. Many addicts could work at productive jobs if the imperative of
Page 5 seeking illegal drugs did not keep them constantly on the street. 4 The Saint John No-Wait-List Maintenance Methadone initiative is a measure that has resulted in significant crime reduction (perhaps for the reasons cited by Dr. Maté), although the effectiveness of the initiative is now being compromised by the specter of a growing wait list. AIDS Saint John estimates that there are 35-55 women engaged in the street based sex trade, with a consistent core of approximately 20 active sex trade workers. Localized support services have been relatively effective in assisting women attempting to leave the sex trade. A key component that is still unresolved is the provision of a bridging program providing stable housing and support on the path to stable employment. Dr. Leslie Jeffrey of UNBSJ and President of AIDS Saint John advises there has been an epidemic of violence against sex workers around the world and across Canada, particularly for street based workers. 5 In Vancouver 51% of sex trade workers have been assaulted in the past year. Police crack-downs (enforcement) tend to increase vulnerability and victimization of sex trade workers because it forces them to frequent less visible and less safe locations. Since 2009 city-wide there were 32 prostitution related Criminal Code offences in Saint John. The Police Force focus has been focused on crime reduction and addressing the root cause of the crime and social problem. During the three year period from December 2009 to December 2012 there were 61 assaults within the Waterloo village area all occurring at or near parking lots, open areas or streets (i.e., not indoors), and therefore likely related to sex trade or drug activity. The Report of the Missing Women Commission of Inquiry (the Oppal Report) concludes there is a clear correlation between law enforcement strategies of displacement and containment and increased violence against women engaged in the sex trade. Their marginalized status resulted in the women being seen as nobodies in the eyes of much of society. Often they were treated not as persons at all, but as sub-humans diminished in the eyes of many by their high-risk lifestyle their devalued social status made them the target of predators. (p.25)
Page 6 ANALYSIS From a legislative and judicial perspective, the application of existing City Bylaws such as the Sidewalk By-law and the Traffic By-law to be more proactive in removing prostitutes from the uptown area is clearly invalid that is, ultra vires or beyond the powers of a municipal entity. Limitations on and enforcement of prostitution (the sex trade) are solely the domain of the Parliament of Canada, and legislation and regulations thereof. This has been confirmed by case law, and in Westendorp v. The Queen, [1983] 1 S.C.R. 43 was extended to invalidate any Provincial (and therefore municipal) action where the true purpose [is] not to keep the streets safe but to control or punish prostitution. Currently the Supreme Court of Canada has consented to hear a constitutional challenge (an Ontario Court ruling) that struck down a law that outlaws brothels, and modified another law against "living off the avails" of prostitution, but upheld an effective ban on street prostitution. The Supreme Court also agreed to maintain a stay on the Ontario court's ruling, which means that current laws should stay in effect until the top court has ruled. 6 The Saint John Police Force will continue to enforce the respective sections of the Criminal Code as necessary, pending a decision of the Supreme Court. Evidence indicates that street-based survival sex is the most dangerous type of prostitution, and is largely driven by addictions, mental health issues and poverty. Enforcement initiatives alone (police crack-downs ) tend to increase vulnerability and victimization of sex trade workers because it forces them to frequent less visible and less safe locations. The Police Force Intelligence-Led Policing experience indicates that addressing the root cause of social and crime problems (addiction, mental health, and poverty) is the most effective and sustainable way to reduce social and crime problems. This is consistent with the Force s Serve and Protect, with Respect Mission Statement; it reflects concern for the safety and quality-of-life for all: residents, visitors, business owners, victims and offenders. Given the limited number (20) of active sex trade workers in Saint John, there is a strategic opportunity to successfully engage with community partners in addressing root causes and reducing the crime and social problems.
Page 7 CONCLUSION On the question posed by resolution of Common Council, it is neither feasible nor lawful to use existing City By-Laws such as the Sidewalk By-Law and Traffic By-law to be more proactive in removing prostitutes from the Uptown area. There is a strategic opportunity to successfully engage with community partners in addressing root causes and reducing the crime and social problems associated with street-based sex trade in Saint John. The Saint John Police Force has already engaged with community partners for strategic interventions. Common Council may also wish to engage with community partners for strategic interventions; this is a role that Common Council could serve with distinction. Respectful balancing of the safety and quality-of-life interests of residents, visitors, business owners, victims and offenders is necessary but challenging. The 2006 Report of the Select Committee on Solicitation laws noted that examination of the law revealed significant elements of agreement and disagreement with respect to the appropriate legal and social response to prostitution, probably reflecting the conflicting views of Canadians more broadly. Consensus building is needed nationally and locally (p. 92.) Dr. Maté has stated Not every story has a happy ending... but the discoveries of science, the teachings of the heart, and the revelations of the soul all assure us that no human being is ever beyond redemption. The possibility of renewal exists so long as life exists. How to support that possibility in others and in ourselves is the ultimate question. Saint John is the type of caring, progressive and respectful community that can resolve that question. The request by Common Council allows an opportunity to shine a light on the most effective solutions. Speaking on his Report of the Missing Women Commission Inquiry, the Honourable Wally Oppal emphasized that the missing women were treated as nobodies by police and the community. This is not a criticism we want applied to Saint John.
Page 8 Much of this report quite correctly speaks of alternatives to enforcement when addressing the street-based sex trade in Saint John. Enforcement is such a blunt tool, when much greater precision and nuance is often required. But to be clear, the Force will engage in enforcement when it is the least-harms and most effective solution. Again Law enforcement whenever necessary, but not necessarily law enforcement. RECOMMENDATION That the Saint John Board of Police Commissioners advise Common Council that it is neither feasible nor lawful to use existing City By-Laws such as the Sidewalk By-Law and Traffic By-law to be more proactive in removing prostitutes from the Uptown area; and that a copy of this Report be included as reference. William G. Reid Chief of Police 1 Report of the Subcommittee on Solicitation Laws; 2006. The Challenge of Change: A study of Canada s criminal prostitution laws. House of Commons Canada. pg.1 2 Wikipedea. Westendorp v. The Queen. Referenced December 21, 2012 at http://en.wikipedia.org/wiki/westendorp_v._the_queen 3 Oppal, W. (2012). Forsaken: The report of the Missing Women Commission of inquiry; Executive Summary. 4 Maté, G. (2008). In the Realm of Hungry Ghosts: Close encounters with addictions. Toronto: Vintage Canada. pp. 306-307 5 Jeffrey, L. (2012). Presentation at Saint John Board of Police Commissioners; December 04, 2012. 6 Reuters. Canada's top court lets prostitution challenge proceed. Referenced December 22, 2012 at http://ca.reuters.com/article/domesticnews/idcabre89o11l20121025