Posts Tagged ‘ Harper Conservatives ’

Could Canada’s Anti-Sex Work Bill C-36 Also Stifle LGBT Speech?

Slightly over a week ago, Canada introduced legislation to replace the anti-prostitution laws that had been struck down by the Supreme Court of Canada.

The Conservative government has been trying to race Bill C-36 through both the House and the Senate simultaneously, at breakneck speed.  But the text of the bill has raised questions about its constitutionality.  Sex workers, mainstream media and even many Nordic model proponents and abolitionists agree that it places sex workers in even greater danger than the previous laws did.

But is there also a poison pill within the legislation that could be used to stifle LGBT and sex-positive speech?

Firstly, here is what the dubiously-named “Bill C-36, the Protection of Communities and Exploited Persons Act” does:

  • It re-criminalizes communicating for the purpose of commercial sex.  While there is said to be an exemption for the sex worker themselves, that exemption only applies if the communication is not in a public place and/or not “where persons under the age of 18 can reasonably be expected to be present” (a minor doesn’t actually have to be present), and not in the presence of another sex worker under the age of 18 (one controversy has arisen because underage sex workers can be charged if they work together for safety).  The law had been struck down previously because it put sex workers in unsafe situations by limiting their ability to screen clients, and negotiate what they were willing and unwilling to do.
  • It re-criminalizes the “common bawdy-house,” defined as a place “for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons.” This criminalizes massage parlours and strip clubs, if commercial sex occurs on their premises, and also prevents sex workers from having their own (or collective) space away from home to meet with clients.  The bawdy-house law had been previously struck down because it prevented sex workers from working collectively indoors.
  • It re-criminalizes “living off the avails…” (as “receiving a material benefit that derives” from the sale of sex). It does provide an exemption (subject to interpretation) for some roommates, spouses and children who live with sex workers, provided that nothing can be construed as an exploitative situation and no drugs are provided to the sex worker.  This also criminalizes escort agencies, and it is unclear how liable referrers, drivers, bodyguards, associates and other business partners could be.  This had also been previously struck down because it prevented sex workers from working together or making business arrangements that improve their safety and circumstances.
  • It now officially criminalizes the purchase of sex.  This is new (previously, it had been legal but associated activities were illegal), and it’s because of this that people are claiming the law is based on the Nordic model of prostitution laws, which aim to end demand while supposedly not targeting sex workers themselves — but Canada’s law goes very clearly beyond that point in several ways.  While many are claiming that this law will inevitably be struck down as unconstitutional, the Harper government’s gambit strategy is to criminalize sex work, so that it is no longer legally relevant whether the laws make it unsafe.
  • Something else that is entirely new is that the law criminalizes advertising “sexual services.”  Newspapers and websites are legally liable if commercial sex advertisements are found within their publications, and consequences can include fines or imprisonment — again with an exemption for the sex workers themselves, provided it is not in a public place and/or “where persons under the age of 18 can reasonably be expected to be present….” Weirdly, it appears that the Internet may be defined as a place where persons under the age of 18 can be reasonably expected to be present, for the purposes of this bill.

“Sexual services” is not defined, and I have asked elsewhere if this term could eventually be stretched in such a way that it ultimately bans porn.  The bill contains extensive search and seizure powers that at the very least provides all the legal teeth that such a ban would need.  Others have also asked if the vague nature of this term could be used to target sexual health services, sex-positive counseling, sex toys and more.

If the phrase “where persons under the age of 18 can reasonably be expected to be present” is reminiscent of Russia’s “homosexual propaganda” law, that may be by design — Canada’s criminalization of sex work owes more to Russia’s anti-prostitution laws than to the Nordic model.

(If anyone is interested in background of these specifics, I have posts at Rabble.ca about what the bill explicitly does, and how the bill makes a seriously flawed and damaging conflation between sex work and human trafficking.)

The Poison Pill

The new criminalization of “sexual service” advertising, however, is especially concerning.  Given the way that print and online publications are to be held liable for commercial sex advertising, there are serious implications for Canadians’ freedom of speech.  Beyond the obvious loss of advertising revenues that an LGBT publication might endure, there could also be wider-spread censorship if that legal liability also extends to Internet Service Providers (ISPs), for any such advertisements that could be found on their networks.

The question is not as absurd as it sounds.  It was only last July that Conservative MP Joy Smith loudly cheered Britain’s new law which required ISPs to institute a content filtering system requiring Britons to opt in if they want to be able to access anything deemed to be obscene or pornographic.  At the time, she had promised to flag this for the party to make a top priority, she said she was absolutely certain that the Prime Minister would be interested in taking action, and then nothing else has ever been said publicly about it.  Meanwhile, Joy Smith has been the Harper Conservatives’ most vocal proponent of Bill C-36, and given many comments by her Conservative Party colleagues, it would seem that she also had a hand in drafting the bill and / or lobbying for it among Members of Parliament.  And the only groups that have been very happy with Bill C-36 have been a number of religious groups, who seem to be the only consultants that were listened to.

Filters have caused minor controversies in Canada before, such as when Tim Hortons had to apologize for blocking DailyXtra from WiFi users.  However, they’ve not improved very much, over time, and have never been applied in a global fashion.

If ISPs are legally liable for (or could be threatened with legal liability for) advertisements of sexual services found on their networks under the terms of C-36, then out of necessity and self-preservation, ISPs would need to institute a content filtering system, nationwide.  Unlike Britain’s, there may not be an opt-in alternative.  This would be doubly reinforced if pornography were deemed a “sexual service” (i.e. by acting as an intermediary) at some point.

Where this becomes especially a concern for free speech is that content filters are incredibly arbitrary, and any filter system designed to effectively intercept commercial sex advertising would inevitably be overly broad.

The result of the filters implemented in Britain has been a deliberately quiet reduction in access to a great many things:

“The filters block a wide variety of content, from hardcore porn to extremist political sites… those “porn blockers” have already proven to be ineffective, blocking plenty of harmless sites and failing to tell the difference between sex education forums and porn. In one case, a domestic abuse helpline was blocked as inappropriate material, while many actual porn sites are still accessible through the filters.”

Back in January, The Guardian‘s Laurie Penny asserted that blocking more than porn was both the intent and the inevitable consequence of the government’s content filtering initiative.  Casualties of the filter system had included “helplines like Childline and the NSPCC, domestic violence and suicide prevention services.”  The New Statesman reported in December that one ISP advertised that its filters would block gay and lesbian content:

“BT have since reworded this description to remove the ‘gay and lesbian’ reference, but given that their filtering is provided by an unnamed “third party supplier” it seems highly unlikely that the filter itself has changed overnight – merely the description.”

What is and isn’t allowed still can’t be determined except through trial and error.  The Cameron government had to draw up a whitelist to force-allow sites that have been noticed to have inadvertently run afoul of the censor.  But the scope of the filters has grown since its initial introduction to also include discussions deemed politically radical — an addition stated to be because of the possibility of the propagation of terrorism.

While a C-36 inspired filter system would operate differently because of what it’s intended to block — advertisements of sexual services, rather than pornography — that doesn’t mean that the filters would be any less clumsy.  While search terms like “escort” would be natural flags for a filter system, ISPs that are worried about legal repercussions would necessarily include a wider array of tags, to try to prevent anyone from getting around the filters.   Given the subjective nature of the term “sexual services,” something that’s open to wide interpretation, this could result in the “just in case” mentality, where businesses and individuals apply the rule in an overly broad way, to avoid any possible complaints or legal liabilities. And then there’s the problem of filtering images, which don’t of themselves have keywords other than the descriptions assigned to them.

Given the avid support that MP Joy Smith has shown to both C-36 and content filtering — as well as the Bill’s obvious pandering to far right groups that have called for a Canadian equivalent to a Russian-style “homosexual propaganda” law — it’s a reasonable question to ask.

Canadians concerned about this possibility can contact their MP (who can be determined through a search on the parl.gc.ca main page), and civilly but clearly ask for assurance that the ban on sexual service advertising in C-36 could not be used in this manner.  They’re also encouraged to find out more about what the bill does, and voice their opposition or their concerns about how this affects sex workers.  They should CC their message to Minister of Justice Peter MacKay, and if their Member of Parliament is a Conservative, they might also want to copy an interested member of the opposition, such as Françoise Boivin (NDP), Sean Casey (Lib.) or Elizabeth May (Greens).  This must be done quickly, however.

Bill C-36 will be voted on at Second Reading on Monday June 16th, after Question Period at 3:00pm.  From there, it could proceed to Third (and final) Reading, or to a committee stage for amendments (although it appears the Conservatives prefer to pass it as soon as possible).

(Crossposted to The Bilerico Project)

C-36: Conflating sex work with human trafficking

I recently asked whether the vague definition of “sexual services” and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography.  Regardless of how one feels about porn, such a thing would certainly require a debate, and it’s a question worth asking.

I also looked at the obvious aspects of C-36 that have sparked outrage from sex workers, and occasionally even from abolitionists.

There are further discussions as well — more concrete than speculation, but still under the surface of the legislation itself.

Conflating sex work with human trafficking

Anti-prostitution Bill C-36 explicitly puts sex work on the same footing as human trafficking and conflates the two in law.  Indeed, they have been consciously equated by Peter MacKay and by the bill’s proponents.

The rhetoric used when introducing the bill also does this, through employing a language that claims that people (particularly women) sell themselves or are sold as commodities, rather than simply selling a service.  Under this line of thinking, it is considered impossible that sex workers might retain any personal autonomy.

Human trafficking certainly exists, although not as frequently as it is often claimed (studies that claim high numbers of trafficking incidents often similarly conflate it with sex work). The fact that it happens less often does not mean that we should care less or believe that the occurrences of it are somehow less horrible — but it does justify recognizing when the scope of it has been unjustly stretched beyond what human trafficking actually is.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (or Trafficking Protocol) defines human trafficking as:

“The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs….”

Human trafficking doesn’t always include border migration, and the exploitation isn’t always about the selling and buying of sex, but the consistent elements are that one person ends up controlling another, via unethically-obtained consent or no consent at all, for the purposes of exploitation.

These circumstances sometimes do occur with sex work, but they aren’t inherent to it.  Sex work does not always have elements of coercion, of control, or of vulnerability. Sex work actually includes a variety of trades, including street work, escorting, stripping, lap dancing, professional domination, massage, survival sex, porn, and more, making it difficult to generalize about it in an absolute fashion.

The Harper government (and supportive media) has had to paint sex workers, advocates and organizations as rare outliers, in order to maintain the illusion that sex work is always exploitative. A great many sex workers have a considerable degree of personal autonomy and independence.  However, those who are in exploitative circumstances are always those who are disproportionately visible, because they will justifiably make contact, seek help and make themselves visible. Unfortunately, this means that the dire circumstances experienced by those who do seek escape become interpreted as being representative of sex work as a whole.

Worse, using the term “human trafficking” interchangeably with sex work actually confuses the issue significantly, diverting funds and energy away from where it’s needed and toward combating legitimate sex work as well.  This makes it impossible to get clear and realistically comparative data, and reallocates funding away from effective anti-trafficking initiatives.  It undermines the fight against trafficking and tarnishes the organizations that try to do the needed work, making it much harder to address actual human trafficking.  And it has allowed far right moralists who are more interested in controlling peoples’ sexual habits seductively hijack the dialogue that once considered womens’ autonomy and choice to be important.

Under Bill C-36, for example, the emphasis is placed on exit services.  But victims of human trafficking have specific (and often urgent) needs that go far beyond exiting sex work.  These start with citizenship: far too often, the response to a trafficked person in Canada is to rescue them from an exploitative situation, and then deport them to the very same conditions that made them vulnerable to exploitation.  Certainly, without citizenship, access to other social services and the tools they need to begin lives free of exploitation becomes difficult or impossible.

And while sexual exploitation justifiably triggers anger and requires remedy, human trafficking also involves far more than sexual exploitation.  It is believed that there are nearly 21 million trafficked persons, worldwide, according to an estimate by the International Labour Organization.  Of these, 4.5 million are victims of sexual trafficking.  The issue of persons exploited for sexual labour is urgent, yes.  But it does not encompass the whole problem of human trafficking.  The approach of Bill C-36 allows the public to believe that we’ve addressed everything that matters.

The embarrassing fall of Somaly Mam — who resigned after questions were raised about her autobiography, tactics and alleged coaching of shocking stories about sex trafficking — should provide a strong cautionary tale about how we can sometimes react to the issue by willingly disregarding or failing to check key facts.

If sex workers did not have to feel targeted by authorities or ashamed to reveal who they were, they could in fact become key allies in detecting and identifying where and when sexual trafficking occurs.  Besides…

“Kung said the employees were required to share rooms in two five-bedroom homes owned by their boss, Tony Van Den Bosch.

“They had no privacy in the house. The owner would come in and out as he pleased and would enter people’s rooms,” Kung said.

“In addition, Kung said, the workers were asked to pay rent once at the beginning of the month, and an additional $200 “tip” on top of their monthly rent in the middle of the month, for the double-bunked rooms.

“… The employer also regularly asked the workers from Mexico for their passports and would hold them for periods of time, alleged Kung.

“Two of them were fired and sent back to Mexico after raising concerns about their working and living conditions. Two of them actually fled in the middle of the night one night because they were so afraid…”

How is sex work inherently always incontrovertibly equivalent to human trafficking, but the Harper government’s Temporary Foreign Worker (TFW) program not?

The paternal infantilization of women and the idealized rescue of exit services.

Bill C-36 assumes that everyone engaging in sex work is a victim. By doing so, this government ignores the experiences of people who choose to engage in sex work.  Unless there is direct force or coercion involved (which is procuring, something that was still illegal before this law was introduced), there are two intersecting factors that motivate people to engage in sex work: poverty and opportunity.  The balance between each will vary per person.

While promising to invest money in exit services, the same government fails to address one key driver — poverty — and completely disregards the other as non-existent.

Between driving wages down with anti-union policies, the Temporary Foreign Worker (TFW) program, cuts to the public sector, refusing to address economic and gender disparities…  the Harper government is a major driver of that poverty. If the choice is to earn as much in two weeks working at a McJob as one could earn in a few nights doing sex work, then that’s not really much of a choice, is it?

Certainly, there’s no talk about addressing job opportunities and wages that would provide a reasonable alternative.  Despite the stigmas, danger and even criminalization, sex work is one of the few ways that people might have to escape oppressive economic circumstances.

And by taking away any ability to work in visible spaces or safe spaces, the Harper Conservatives are driving the industry underground, creating vulnerabilities. The only thing that the government is offering is funding for exit programs.  Leave or else.  This bill does everything possible to ensure that exiting sex work is the only option.

The rescue industry

The Conservatives have pledged $20 million toward exit programs and enforcement.  It’s not known how much of that money will go to increased policing costs.

Exit programs are one area where a person really has to wonder how a law is going to be used.  Will law enforcement be used to push people into exit programs?  Will there be coercion or obligation to participate in them?  Will access to assistance or public services be conditional upon participating in an exit program?  If a person does not want to participate in an exit program, will the penalty be charges for things they would not have otherwise been punished for?  Will participation in exit programs be the only way a sex worker can avoid losing custody or visitation of their children?  Will religious institutions (similar to or allied with those who advised the bill, even) be administering these exit programs, and will proselytization be a part of the exit strategy?

Some of these questions sound appalling or absurd, but there are certainly precedents south of the border where these became the consequence of anti-prostitution laws which push exit programs.

A matter of advice

In crafting Bill C-36, there was a clear reliance by the Harper government on the advice of far right religious organizations like REAL Women of Canada and the Evangelical Fellowship of Canada, and virtually no weight given to the people directly impacted by the legislation.

One of the organizations that stands to benefit from the $20 million that the Harper Conservatives have pledged to invest in exit programs is [free-them], which describes itself as an anti-trafficking organization.  But the organization appears to have a moralist slant that extends beyond that mandate.  When MP Joy Smith (who the organization describes as “Free-Them’s ally in fighting human trafficking”) issued a statement in support of Britain’s mandatory porn opt-in policy, [free-them] was quick to follow up with a similar statement:

“Children need to be protected from pornographic images that over time can desensitize our youth and create a false sense of sexual reality, and even lure children into a situation of exploitation that no child should ever experience. As Prime Minister Cameron clearly states, this regulation is not banning legal pornography, but rather increasing an extra level of security and protection from pornography getting into the hands and viewership of youth and children that should not be exposed to this. As adults, we have a responsibility to the young generations growing up to protect and defend children and youth…”

If it’s difficult to conflate human trafficking with all of sex work, then it’s even harder to equate it with the entirety of pornography.  Exploitation does happen in porn, yes, but in this case, there is also a highly visible contingent of participants who have been obviously not trafficked, and have relative personal autonomy.

The longer one follows the threads of Bill C-36, the clearer it becomes that it is far less about exploitation, and far more about legislating a specific moral vision.  And in the process, the issue of trafficking itself has become hijacked.

Footnote: While I had never set out to become an activist for sex workers’ rights, I’ve come to believe that the freer and more empowered a sex worker is, the less opportunity exists for exploitation, and the more opportunity there is to escape it if it happens. Criminalization achieves the opposite effect.

(crossposted to Rabble.ca.  Concerned about progressive media in Canada? Support rabble.ca)

Bill C-36, the Protection of Communities and Exploited Persons Act: an overview

I recently asked whether the vague definition of “sexual services” and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography somehow.  Regardless of how one feels about porn, such a thing would certainly require a debate, and it’s a question worth asking.

That is, however, speculative.  The bill itself contains many clearer aspects that have sparked outrage from sex workers, and occasionally even from abolitionists, as well (though the objections vary).

The Canadian government’s public consultation on sex work — which sex worker advocates felt had been slanted to try to sell the “Nordic Model” of anti-prostitution law — was reported to have shown that a majority of Canadians want the selling of sex to be legal for the sake of the people who engage in it, but a mix (slight majority) of Canadians support criminalizing the buying of sex.

Apparently Justice Minister Peter MacKay decided that meant that Canadians wanted sex work criminalized in such a way that sex workers wouldn’t always be technically charged, but it would be otherwise made totally impossible to work legally and safely.  Rather than honour the safety concerns raised by the Supreme Court of Canada, the Harper government has actually exacerbated the situation in hopes of forcing sex workers into exit programs.

“The purchase and sale of sex has never been illegal in Canada,” MacKay said explicitly. “That changes today.”

It is, of course, the government’s hope that by completely criminalizing sex work, the Supreme Court of Canada’s argument — that anti-prostitution laws do harm to sex workers by preventing them from working safely — becomes irrelevant.  Courts never concern themselves with whether circumstances are made safe enough to commit a crime.  And that’s why it has decided to criminalize the buying of sex in addition to re-criminalizing everything that was struck down (with a few narrow exemptions for sex workers themselves)… and throw in some new restrictions for good measure.

(It’s alleged that an unpublished Ipsos Reid poll reportedly contradicts this government position, but the results of that poll are being withheld)

Pivot Legal Society has condemned the bill:

“This cynical, dystopic model does not resolve the problems found by the Court in Bedford to be unconstitutional, and adds new ones such as the prohibition on advertising. The Charter rights engaged by this proposed law include life, liberty, security of the person, freedom of expression and equality. Arguably all are breached.

“This is not the “Nordic” approach, nor is it a Canadian variation on the “Nordic” approach. It is an unconstitutional variation of our broken laws that impose more danger, more criminalization, and fewer safe options, contrary to the requirement of the Supreme Court of Canada to address these dangerous and ineffective laws.

“This made in Canada model will lead to continued epidemic of violence against sex workers in Canada…”

What the bill does:

1) Sellers are not criminalized or targeted… except when they are.

It’s claimed that Bill C-36, the Protection of Communities and Exploited Persons Act targets buyers of sex but doesn’t target those who sell it.  That is incorrect.  Sex workers can absolutely be charged:

  • if they work in the presence of sex workers under 18 years of age — even if they’re under 18, themselves;
  • if they work at home where children reside, if it’s asserted that the children are being negatively affected (and what about having to go visit grandma all the time… is that a negative effect?) — more on this in a moment; and
  • if they communicate in “a place where persons under the age of 18 can reasonably be expected to be present,” stop traffic, etc. (the penalty for this could be up to five years in prison)

The mixed signals on charging sex workers opens up some ability for law enforcement to use the potential for charges (and the lack of clarity on what is legal) to manipulate people.  This could result in the threatening of charges in order to intimidate a person into incriminating themselves or incriminating others (perhaps even falsely, in order to escape trouble).  This lack of clarity could also be used to scare people into pleading guilty (regardless of whether it’s true) to seeming lesser charges, in order to escape risking more frightening legal possibilities.

Regardless of the exemptions included in the bill, there are still institutional barriers to keep sex workers from receiving assistance from police or communicating with them with confidence.  For example, the search and seizure powers make no exemption for sex workers themselves.  Even if they can’t be charged for advertising their own services, what’s to stop police from seizing their computers and targeting their current and past clients in one fell swoop?  It’s incredibly naive to think that the rapport between law enforcement and sex workers would be improved in any way by this law.

Could the legislation affect access to social services as well, if those services aren’t specifically exit-related? Or custody of children?  Even if a sex worker cannot be charged for advertising sexual services in a particular situation, might it still violate a lease by being classified as a criminal act?  The implications are uncertain.

2) Communication.

The law against “communicating for the purpose of…” — which put sex workers in unsafe situations by limiting their ability to screen clients and negotiate — is back, and is actually made more restrictive by applying it to “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present.” That last part is key: a minor doesn’t actually have to be present, there only needs to be an undefined reasonable expectation (and it will be up to the courts how widely that can be interpreted).  Your car could be a public place.

In the case of sex workers who have children, even if their children can be kept unaware of their parent’s pursuits and are never present when they see clients, does their home become a “public place?”

It’s still never safe for buyers to communicate to buy sex, but where does it become safe for a sex worker to communicate to sell sex? If they can only communicate from home and without the use of the Internet or public spaces, well, that certainly complicates things.  Bill C-36 distinguishes itself by targeting indoor sex work so that it becomes impossible to engage in safely, even if you’re the sex worker who is supposed to be exempt from the law.

A bar is still a public place, but it’s not “a place where persons under the age of 18 can reasonably be expected to be present.”  So it’s legal-ish or closer to legal-ish, and the penalties for anyone caught are smaller. So now, the Harper government has made sex workers safer by pushing them into darkened spaces with clients who have been drinking.

But at the same time, there is a disincentive for bar owners to allow sex workers to communicate on their premises, for fear that it could be claimed that the bar or management might be materially benefiting from the presence of sex workers in some way (i.e. increased sales and patronage).  So then there is a constant harassment of anyone in a bar who is suspected of being a sex worker.

By tactical reasoning like this, it becomes a strategic minefield in which people are forced to take more chances, and place themselves in the spaces of people they wouldn’t normally trust, simply because those people are likewise willing to take the risk of associating with them.

Communication can’t be understated.  If one can’t take the time to negotiate clearly, has to speak in code to avoid detection, and has to resort to an imply / infer scenario, then it makes it impossible to screen clients to see how agitated they might be, creates an automatic mutual distrust between workers and dates, and makes it hard to set limits about what types of sexual act one is or isn’t willing to perform.  This was a key issue at the heart of the Superior Court of Ontario and Supreme Court of Canada rulings that originally struck down the three anti-prostitution laws replaced by this bill.

3) The Bawdy-house rules.

The ban on “common bawdy-houses” is back, with the bawdy-house defined as a place “for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons.”

This targets massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged).  Additionally, if a sex worker keeps a separate address to work from, it’s considered a bawdy-house. So now by law, sex workers can only work from their homes.  Because it’s oh so much safer for everyone to know where you live.

Of course, one can imagine the condemnation that’s going to be heaped upon sex working mothers who work under the same roof that their children live under, regardless of whether the kids are ever actually present when anything is happening.  But the law actually pushes them to do that.

Sex workers sometimes share a separate address, or prefer to work in places like massage parlours or strip clubs, so they can work together for mutual safety.  Under this law, that’s not a legal option.

4) What constitutes a material benefit from the sale of sex?

“Living off the avails…” returns as “receiving a material benefit that derives” from the sale of sex. It does provide an exemption (subject to interpretation) for some people who live with sex workers, provided that nothing can be construed as an exploitative situation and no drugs are provided to the sex worker:

“… evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services…” except “in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived…”

How that will be interpreted remains to be seen.  It’s not entirely clear if this provision targets assisting arrangements from referrers, drivers, bodyguards, associates and other business partners, if something beneficial (not necessarily cash) is exchanged.  The Justice Minister says it’s up to interpretation of whether the associate is exploitative in any way.  Sometimes, the practical application of something like this is to arrest all, use the law to maximum advantage, and let the courts worry about whether or not a situation is exploitative, after the fact.

Escort agencies, massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged) are all banned by this provision, with a potential sentence of up to 10 years in prison.

5) The new ban on all advertising of sexual services

This bill reaches further than anything previous, by banning all advertising of sexual services.  Anyone who knowingly provides a space in which to advertise (whether in newspapers, online message boards, websites, or any other form of media) can face fines or imprisonment.

Beyond the obvious questions about freedom of speech, this raises other questions.  How much legal responsibility does an Internet service Provider (ISP) shoulder if sexual service advertising is accessed through its networks?  What steps does it need to do to avoid legal action, and how engaged will ISPs need to become in tracking such advertising?  Does this raise questions for other areas of privacy and freedom of speech for Canadians?  When I asked if C-36 might ban porn, one of the lines of reasoning was that the threat of legal action could push ISPs into instituting arbitrary and overly broad content filters, just to be safe.

And finally, is the Internet a public place? MacKay explicitly referred to online advertising, so that would seem to mean that it is interpreted that way in the law.  And while it’s said that sex workers would not be charged for advertising their own services, if the Internet is widely interpreted as a public place “where persons under the age of 18 can reasonably be expected to be present,” that exemption for them might not apply to Internet advertising.

It could almost end up working like entrapment.

Tomorrow: Conflating sex work and human trafficking

(crossposted to Rabble.ca DentedBlueMercedes.  Concerned about progressive media in Canada? Support rabble.ca)

Could anti-prostitution Bill C-36 also ban porn?

One of the concerns that has been raised about Bill C-36 is that “sexual services” is not defined.

Terri Jean Bedford, one of the plaintiffs in the case that overturned the previous anti-prostitution laws, has raised this question a number of times, without receiving an answer.  A professional dominatrix’s job, after all, involves fulfilling a fantasy, and may not include any actual sex acts at all.  Does sex have to happen in order for there to have been a “sexual service?” Where is that line drawn?

It’s because of this vague nature of the terminology that some are asking if the wording could also inadvertently ban advertising and / or paying for sex toys or the services of a sex therapist.  Advertising sexual health services could also come into question.

Is porn a “sexual service?”

Is a sexual service exchanged via pornography?  It could be argued that porn acts as an intermediary, at least, so it might be a question that is subject to the interpretation of whichever judge happens to hear it.

There are people at both ends of the political spectrum who oppose pornography and would be amenable to a ban on it — from the right usually because of concerns about morality, and from the left often because of concerns about the portrayal of women and the possibility that it contributes to rape culture.  There are also opponents at both ends of the political spectrum as well, and for the purposes of this question, it is up to readers how they feel about the prospect of such a ban.  However, people of all political stripes would hopefully agree that such a sweeping form of censorship should at least require a lengthy debate.

Under the original terms of the bill, concerns about advertising sex already treads into the realm of censorship and freedom of speech.  If that is coupled with flawed and vague terminology, it’s reasonable to ask how far beyond the original intent that could be taken.

If the bill could be used to ban porn (and that question might remain entirely speculative until something actually does wind its way through the court system), all it would take is for someone wanting to close their local porn shop to try to sue them for — or push for them to be charged with — advertising sexual services.  There’s no guarantee that anyone would succeed at that, but the possibility that it might is a question worth asking.

Key mechanisms in C-36

There are mechanisms within the bill that would certainly assist such a use of the law.

The bill includes search and seizure powers for materials that are “obscene, a crime comic, child pornography, a voyeuristic recording or an advertisement of sexual services.”  To be fair, all of those items besides “advertisement of sexual services” are already listed in the Criminal Code as materials that can be seized, currently.  But aside from the obviously important proscription of child pornography, none of those other things are characteristically illegal to buy or possess anymore (in the case of voyeuristic recordings, their actionability hinges upon how the recording is obtained), and so we don’t see searches and seizure of pornography, except through some federal departments like the Canada Border Services Agency, which simply confiscates material.  However, this law does ban advertisement of sexual services outright, so there would be greater enforceability.

Additionally, for the purposes of this law at least, the Internet is considered “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present” — or at least the Harper government sees this phrasing as the best mechanism to include online advertising.

With both the search-and-seizure powers and definition to include online media in the bill, even if it turned out that porn was not legally interpreted as a sexual service, C-36 still provides the structural basis needed to build an anti-porn law, with a minimal amount of effort required.

Soft censorship and stealth

Bill C-36 would allow the Harper Conservatives to institute a ban on porn without appearing to be pro-censorship.  A significant portion of the Conservative base uses freedom of speech as a rallying point, especially when it comes to divisive speech, tabloid-style and gotcha journalism, and hateful (though not necessarily legally hate) speech.  Even calling out hateful speech or non-legal consequences for speech can interpreted as censorship by this contingent.  So if the government wanted to establish a ban, it would probably need to be done by stealth, and look like an accident.

Regardless of how broadly “sexual services” is defined, the ban on advertising could conceivably be used to pressure Internet service providers (ISPs) to institute a content filter system much like MP Joy Smith had been calling for, only months ago.  That is, if ISPs are threatened with the possibility being held legally accountable for any ads obtained through their networks, a content filter then appears to be the path of least resistance.  And no matter how specific ISP programmers might try to be, content filters have a tendency to be arbitrary, overly broad, and filter unintended content, just to be safe.  Even if a solid ban cannot be accomplished, soft censorship would remain possible.

Where persons under the age of 18 can reasonably be expected to be present: the legal tactic

The eerie phrasing of “a place where persons under the age of 18 can reasonably be expected to be present” first raised this question in my mind, because it sounds very much like the legal tactic used in Russia’s law banning all “homosexual propaganda” (that is, anything that portrays LGBT people positively — and I’m not speaking hyperbolically when I say that).  When that law passed, the Canadian and American religious right applauded the move, and began debating ways to bring such a law to North America.  Although it could be a haphazard trek from point A to B, each win that occurs in between provides red meat to key elements of the social Conservative base, and injects legislation into the bedrooms of the nation.

“Instead, the official reiterated the government’s position that political parties and candidates, not Elections Canada, would be responsible for increasing voter turnout under Bill C-23.”

“Instead, the official reiterated the government’s position that political parties and candidates, not Elections Canada, would be responsible for increasing voter turnout under Bill C-23.”

That’s the altogether revealing comment that might have slipped past you in a Hill Times article last month which showed that a 2008 Elections Canada ad which was seemingly critical of industry — and which Conservatives had pointed to as evidence that Elections Canada needed to be stripped of the ability to encourage people to vote — never actually aired in the first place.

“The ad—a 25-second video that contrasts urban pollution and emissions to an evergreen forest as it urges youth to “vote, shape your world”—was created for Elections Canada but cancelled in 2007 by the newly installed chief electoral officer that year, Marc Mayrand.”

The obvious irony — that the allegedly partisan commercial was pulled because it was considered not objective enough, and yet is being used to silence impartial voter encouragement — is significant on its own.  But it becomes that much more jaw-dropping in the face of the Harper government’s position: that it was important to end impartial voter drives, in favour of clearly partisan ones.

Stephen Harper has made no secret that his aim is to reshape Canada so that the Conservatives become the nation’s “natural governing party.” He’s been arguably helped by the fact that the anyone-but-conservative vote has been split among three parties, with few other distinctions among them — especially since the NDP dropped socialism from its platform and the Liberals have been adept at obscuring their own neoliberal track record.  The hypocrisies already noted about the Harper government’s “Fair Elections Act” have already revealed that this bill is intended to help achieve this natural governing status, but the comment above reveals that the use of the bill goes much deeper than the mainstream media has already realized. Continue reading

Porn opt-ins, soft censorship and buttbuttinating personal responsibility

On Monday, British Prime Minster David Cameron announced that internet service providers in the U.K. would be required to filter out online porn as part of several new rules to come into effect by the end of the year.  Adults will still have the ability to opt in to view porn, but filtering will be the “unavoidable choice” default that ISPs will need to provide.  The same day, Twitter announced that it would be implementing a tagging system to fight porn, apparently at the British government’s urging.

Meanwhile, the chairman of the Canadian Association of Internet Providers (CAIP), Tom Copeland, revealed that an opt-in idea like Britain’s had been discussed in Canada off and on for several years.  On Tuesday, Conservative MP for Kildonan-St. Paul, Joy Smith, expressed a wish to implement the initiative in Canada, calling it a “common sense approach” to protect kids.  She has promised to flag this for Prime Minister Stephen Harper to address when Parliament resumes.

Soft Censorship

The initial rationalization being given is that as an “opt-in” policy, nothing is actually being “censored.”  It sounds like it’s just as easy as unchecking a box, to opt back in.  Easy, right?

Unfortunately, reality doesn’t work that way, and it would be impossible for an opt-in scheme to become anything other than a softer kind of censorship.

“This Website is Unavailable”

The biggest concern being raised so far is the inaccuracy of filters, and their tendency to affect many things that are not actually porn.  Cameron has already had to concede that the filters required in the U.K. could end up blocking sexual health, sex-ed and clothing and / or novelty stores.  There’s really no guarantee that discussions about womens’ reproductive health, sex workers’ rights, transsexuality and more would escape the filter, and remain available to the general public, rather than just those who opt to view porn.

The implementation would almost certainly target consensual BDSM (an acronym for bondage & discipline / dominance & submission / sadomasochism), given that the filter announcement was accompanied by a declaration that  it would be illegal to produce or possess anything that could be considered “violent” or that simulated rape — something that drew fire from former MP Louise Mensch, who commented on Twitter: “It is not for our government to police consensual simulation, between adults, of one of women’s most common fantasies.”  [The U.K. already has an unusual and related legal precedent in which the House of Lords ruled that a person could not legally consent to violence (aside from things like surgery), although subsequent rulings have left that legal landscape a bit unclear.]

Tumblr illustrated the problem with filters when it drew some complaints over the weekend for flagging and tagging blogs as “NSFW (not safe for work),” or “Adult,” applying filters, and preventing tagged blogs from showing up in searches. Terms like “gay,” “lesbian,” “bisexual,” “transgender” and more were affected — words that could just as easily call up a porn niche as summon a wealth of social discussion.

Autostraddle notes:

“Although Tumblr’s settings page allows users to opt out of hiding NSFW posts in searches, it seems blogs that have been labeled NSFW (with or without their consent) have not been appearing in searches at all, basically blocking them from gaining new followers through anything but reblogs and word-of-mouth. In addition, many noticed that a whole host of vaguely “adult” tags, including those listed above, are now unsearchable on some mobile apps, including Tumblr for iPhone.”

The effect of targeted tags being dropped from search engines and functions cannot be understated — and could easily become a naturally organic consequence, as search engines and algorithms adapt to the “new normal.”  Soft censorship.  Say goodbye to your favourite LGBT blog.

If that last comment sounds melodramatic, then note that Tim Horton’s also had to apologize for blocking the gay and lesbian news website Xtra from WiFi users (also over an apparently busy weekend), after LGBT people and allies began lobbying to boycott the coffee chain.  Once filters are a factor, this is hardly an unusual occurrence.

And as discussions become inadvertently filtered, they become less accessible and less traveled… factors that almost inevitably drive their ranking down on complex search algorithms like those used by Google.

Clbuttic Mistakes

Filters have improved somewhat since the legendary problem reported by Dick Cheney’s staff, when the installation of new filters targeting offensive words (like “dick”) prevented them from accessing the then-Senator’s own website.  Even so, there are endless examples of filters overreaching and doing what they were never intended to do — sometimes with hilarious results.  Even still, one occasionally runs across a phenomenon known as “The Clbuttic Mistake” — a phenomenon of mangled text that results when auto-format filters replace words considered rude or offensive with milder counterparts, without accounting for context.  In these sorts of situations, “classic” becomes “clbuttic” (18,700 instances on Google), “constitution” becomes “consbreastution” (3,240 instances), “assassination” becomes “buttbuttination” (2,040 instances), and more.  While the filters being sought by the British PM perform differently — preventing the display of a page, rather than changing its text — their programming will inevitably be just as arbitrary.

Good luck finding your town’s website if you live in Dildo, NL.

It gets even more difficult when it comes to trying to filter images, which don’t of themselves have keywords other than the descriptions assigned to them.  The broadest filters could make significant swaths of classic art inaccessible, while still letting actual porn through.   As noted at The Cracked Crystal Ball II:

Let us assume that we have a computer system available to us which can identify nudity in images.  How do we differentiate between the nudity of a great piece of classical artwork and a playboy centerfold type of picture?  Is there in fact a difference?  What a commercial sites that sell sex toys?  Are they to be deemed “pornographic”?  

“Or, come to that, how does one differentiate between a novel with a sex scene and a pornographic story?  Where does the line exist between “legitimate” art (as the anti-pornographers see it) and porn lie?  … and is there any meaningful way to differentiate that a blocking system could identify?”

The arbitrariness of keywords is not the only thing likely to make a filter be applied in an overly broad way.  Obscenity is a perpetually subjective concept, always open to interpretation by individuals.  This often results in the “just in case” mentality, where businesses and individuals apply the rule in an overly broad way, to avoid any possible complaints or legal liabilities.

A Homosexual Propaganda Law for the Internets

And indeed, to many social conservatives, LGBT news sites are considered pornography, or at the very least as potential gateways to pornography.  Linda Harvey of Mission America illustrated this vividly last May on her talk show at WRFD radio, in Columbus, Ohio:

“Homosexual-themed pornography is extremely accessible to young people if they ever visit any websites covering the gay agenda as news. For instance, if your child was during a report on same-sex marriage just researching the political issue and visiting sites that are sympathetic to the social and political goals of the homosexual movement may quickly bring them in touch with explicit images because many of the homosexual news blogs have soft-porn gay dating sites or worse as ads. So what is the reaction of your son or daughter to such graphic images?

“If they feel a curiosity it may start a process of wondering if they could be homosexual. This is not true of course but the really tragic thing is they are not likely to share this question with you the parent, it just seems too personal. If they follow up and visit these sites some will experience sexual feelings and mistake these for the pervasive fiction of some inborn gay identity. After all, isn’t this the message that kids get everywhere that ‘some of you are destined for homosexuality and there is nothing you can do about it so just go with it and be proud’?”

Protecting children from witnessing homosexual love and involuntarily becoming gay as a consequence was the public rationale used by Russia when it enacted its law banning “homosexual propaganda.” But the law affects any public statement, action, publication or gesture that can be seen as LGBT-positive, including Pride parades and events, affirming publications and support groups, and far more.  On Monday, four Dutch tourists were the first foreigners arrested under the ban, when they interviewed passers-by about their views on the ban for a documentary on human rights.  Days ago, Russia also went a step further by making it illegal to “offend the feelings of religious believers.”  Self-described “human rights consultant”and American evangelical Scott Lively has on multiple occasions taken credit for the ban in Russia, encouraging Hungarian legislators to:

criminalize the public advocacy of homosexuality. My philosophy is to leave homosexuals alone if they keep their lifestyle private, and not to force them into therapy if they don’t want it. However, homosexuality is destructive to individuals and to society and it should never publicly promoted. The easiest way to discourage “gay pride” parades and other homosexual advocacy is to make such activity illegal in the interest of public health and morality…”

[Lively is one of the evangelists who inspired Uganda's "Anti-Homosexuality Bill."]

Censoring Silence

In the highly polarized and politically charged atmosphere of the past few years, it’s no secret that there are interest groups with a thirst to censor anything favourable to their ideological opponents.  The will certainly exists.

Much of the censorship proposed lately is rationalized in the name of protecting children, but the list of things that people assert that children should be protected from can quickly balloon into a monster.  Last April, I wrote a three-part series (1, 2, 3) on how social conservatives even targeted the Day of Silence (a day in which LGBT students and allies refuse to speak, as a way of protesting the silencing effect of anti-gay and transphobic bullying and harassment) as offensive:

“Acceptance of others has been conflated with “encouraging experimentation,” and lately also equated to corruption of children and “mental molestation.”  To many, it’s all inseparable.  In this mindset (coupled with heads-as-empty-vessels theory), even silent solidarity with LGBT kids corrupts children sexually and indoctrinates them into homosexuality.”

When CAIP’s Tom Copeland spoke to the Canadian Press, he noted:

“The discussion has gone on forever and a day, mostly it starts around child pornography and what can be done to combat it and whether or not Internet service providers can play a role, or should play a role,” Copeland said.

“And then every once in a while somebody decides, ‘Well, we need to take this further, it needs to include general pornography sites’ -which aren’t illegal – ‘it needs to include hate sites.’ It needs to include any number of sites that somebody all of a sudden has a burr in their britches about.

“And generally the industry has said we can’t possibly block all of these sites.”

That last point is important.  Requiring a block on all porn becomes a burden on ISPs, especially as technology and the means to evade it changes at rapid pace.  And in giving ISPs the responsibility of “protecting” people from porn, they may also inherit the legal liabilities.  One man recently filed suit against Apple for allowing porn on iPhones, blaming the company for the failure of his marriage and a porn addiction.  In an opt-in world, what kind of legal liabilities do ISPs face, if some porn does slip through?  And if there is the spectre of legal consequences, doesn’t it incentivize the over-application of filters?

There are, of course, many fears that opt-in policies could lead to censorship of other kinds of content, by being exploited erosively, in the same way that restrictions and regulations have been continually implemented in the U.S. to limit and gradually eliminate womens’ access to abortion, and making moves to do the same with contraception.  It’s not inconceivable that an opt-in policy could be instituted and then gradually widened to things that are “controversial” — like sex ed, abortion, sex workers’ rights, environmentalism, transsexuality, atheism, evolution….

Personal Responsibility

Even if that didn’t happen, it’s still the height of laziness to put the burden of parental and personal responsibility on the state.

But then, society has a serious double-standard on issues of personal responsibility.  We’ve been increasingly seeing messaging blaming women for rape, blaming the poor for their own poverty, and blaming minorities for racial strife, in the dubious name of “personal responsibility.”  And yet when it comes to actual personal responsibility in terms of parenting and individual choice, people cry for the government to establish soft censorship to do the job of instructing kids.

The calls for “parental rights” when it comes to shielding their kids from LGBT-inclusive anti-bullying education prove to be a hypocrisy as well, given that those parental rights are easily punted to the wayside when it comes to subjecting other parents’ kids to squishy fetus dolls in candy bags or grisly aborted fetus posters displayed outside schools or family events, to recruit children in the war on womens’ reproductive rights.  It would seem to be that only one kind of parent is supposed to make decisions for everyone else’s children.  And in calling for a national porn opt-in requirement, it’s almost a weird kind of “we’ll happily abdicate the responsibility to the state, as long as the state is doing what we want” sentiment.

Meanwhile, MP Smith has already indicated that she sees it as irrelevant if things get pushed into the cybercloset as a consequence of the measure:

“What you have to weigh on this is how can we better protect our children. It’s not going to be perfect. Nothing we do is going to be perfect. But it’s one more step to protecting our children. And what I’ve heard is people say, oh, as an adult it’s embarrassing for me to have to do this. And my answer to that is, unchecking a box can’t be too much of a price to pay when it comes to protecting and nurturing our children. So it’s not about censoring anything, it’s about protecting the children. And we know the harmful impact of pornography on children because research is showing that. And so this is something that Prime Minister Cameron has done that has been really bold and it’s been collaborative and I think we need to have this conversation right here in Canada and take some of these steps.”

We wouldn’t want the kids to sear their eye sockets, after all.

Won’t Somebody Please Think of the Children?

And this is where we get to the point of the debate that few want to discuss: the possibility that sexual curiosity may be a natural part of youth, one that in practice will probably not be thwarted by an opt-in law, anyway.

As the Toronto Star pointed out, David Cameron’s plan conflates child pornography with youth porn consumption.  Regardless of what one feels about the latter, it mostly happens when kids wilfully seek to view porn, and they have also often proven to be remarkably able to evade security, anyway.  It’s concerning that people are seriously considering changing the fundamental nature of the Internet and seriously squelching the dialogue of some communities, in favour of something that may not achieve its stated goal in the first place, and would be better accomplished by parents monitoring and better educating their kids.

No one can deny that there are some pretty abysmal and misogynistic forms of porn out there, forms we’d obviously rather not be plastered everywhere that kids travel — and that’s why the Internet has organically evolved to mostly limit that sort of thing to spaces where it is deliberately sought out.  You typically don’t get porn in Teh Google unless your search terms are keyed to find it.  And The Huffington Post isn’t likely to advertise porn, since it’s bad for business and readership retention.

It’s not perfect, certainly, but throwing out very positive resources on sexuality that can be found — like Scarleteen — in the process is an unreasonably nuclear option.  It’s not like there’s a lack of (free!) resources already available for parents who want to eliminate any risk of their children burning their eyes.

But it would seem to me that better parenting would be less focused on protecting kids from knowing anything about sexuality, and focused more on keeping good lines of communication open, so that kids are comfortable asking their parents questions while they’re figuring things out.

Either way, given the way some proponents push the idea of soft censorship, it can’t help appear as though some teens have a better handle on sex and sexuality than many adults.

(Crossposted to rabble.ca)

Harper’s Theological Crossroads.

Right from when it was first proposed during the May 2011 federal election, the Office of Religious Freedom (ORF?) was met with the accusation that it was an attempt to pander to its base, concerns that it would overstep the boundary of what Canada should be doing in foreign nations, and skepticism that it could be instituted in any kind of way that would be fair and balanced for all religions.  As it turns out, it’s becoming not very popular among Evangelicals, either.

One of the clearest examples of late is RoadKill Radio’s interview with Jim Hnatiuk, who is the leader of the Christian Heritage Party of Canada.  Hnatiuk, of course, has a vested interest in dissuading far-right conservative voters from supporting Stephen Harper and the Conservative Party, but what’s noteworthy is the particular aplomb with which RKR commentators lead the discussion, and continue what appears to be an ongoing conversation among dominionist-leaning (those who seek to legislate their morality) Evangelicals.  (Incidentally, the RKR commentators also indicate their support for Uganda’s Anti-Homosexuality Bill in that same webcast)

The growing discontent with the Office of Religious Freedom parallels an increased dissatisfaction with the Harper government on other fronts.  Anti-abortion Members of Parliament have been breaking ranks and speaking in defiance after the Prime Minster’s Office quashed a motion that sought to reopen the abortion debate in the guise of condemning sex-selective abortion.  The Supreme Court’s decision partially upholding hate speech legislation against Bill Whatcott has rankled many and been characterized as curtailing religious freedom, as well.  In the case of the Office of Religious Freedom, RKR’s Ron Gray dismisses it as pandering and “window dressing to attract Canadians, people of faith.”  Hnatiuk seems to object to the image of religious diversity projected during the launch, before characterizing the Office as a deflection from these and similar events (at 8:46 in the video):

When I saw the office being established… and I looked on the website of some of the presentations that were taking place around its establishment with all of these minority faiths standing behind the Prime Minister and I said “Oh my goodness, they’re actually believing that they’re going to benefit from this and that this is all about them and not about more votes and not about the attacks on the Christian freedom that we have in Canada….”

The Harper Conservatives have been coming to an ideological crossroads for some time, now, one that many predicted when the party achieved its majority government, but realized that it could lose power just as quickly if it appeared too radically conservative on social issues.  Theocons became energized at the thought of being now able to legislate according to ideology, only to face the realization that the Conservatives are more concerned with maintaining power.

Only weeks before the ORF, Whatcott and sex-selective motion controversies, the Harper government came under fire for a Canadian International Development Agency (CIDA) donation of $560,000 for Crossroads Christian Outreach in Uganda, given that the organization had an anti-gay position statement on its website, and was doing work in a nation where anti-gay positions have fomented a volatile culture of violence and hatred toward lesbian, gay, bisexual and trans (LGBT) people.  In classic Conservative fashion, Julian Fantino ordered a review, and then reported it completed, later that evening:

“… Minister Fantino’s office contacted LifeSiteNews Monday night to say that the review was complete and Crossroads’ funding would remain in place.”

MPs have demanded a full audit of CIDA, but that is unlikely, now that the entity is being folded into the department of Foreign Affairs.  It remains to be seen what will be made of the report coming down shortly which notes how funding to theological groups have risen significantly, while funding to non-theological groups has stagnated:

Some examples: Africa Community Technical Services received $ 655,000 from CIDA in 2010, almost three times more than in 2005. On its website, the NGO says it carries out its duties “under the authority of the scriptures” and “seeks to glorify our Lord Jesus.”

Cause Canada says: “We pray that our identification with Jesus, our concern for justice and our practical demonstration of God’s love [...] attract people to Christ,” on its website. This Alberta NGO received $ 483,000 from CIDA in 2010, an increase of 32% compared to 2005.

This rise in money to religious groups also comes at the expense of womens’ programs, which have been shut out in many cases:

Then there’s the $495,600 CIDA grant to Wycliffe Bible Translators of Calgary, which works so that aboriginal people in far-flung corners of the world can read the scriptures in their native languages.“It’s okay to translate the Bible,” says Nicole Demers “But there are aboriginal women here who are dying.”

In fact, adds Demers, groups seeking CIDA funding are being told to leave the phrase “gender equity” out of their grant applications.

And it’s becoming clear that the controversies are only going to get rockier for the Conservatives as people become more aware of them and as the Canadian social landscape becomes even more polarized.

So it’s significant that Harper’s flagship promise to theological conservatives is floundering.  Because as Jim Hnatiuk points out, these were the expectations of something like an Office of Religious Freedom (at 6:14 in the video):

Predominantly, worldwide, we see the whole issue of the Islamic worldview being predominantly the ones that are persecuting Christians — and others, and other faiths as well, but you know, by and large, it’s Christians out there.  So if that is, if they’re going to be setting up an Office of Religious Freedom that can, they have to be saying, you know, in one sense, we’re going to really speak out against these… this, uh Islamic uh what do they call it a [could not make this word out]…  

So if our government is saying that they’re going to be, I guess my point is, fight against, fight for religious freedom, they’re gonna be, they’re saying we’re going to start fighting against these Islamic regimes…

Best laid plans, and all…

(Crossposted to Rabble.ca)

C-279 Passes Third Reading (Hansard)

C-279 passed Third Reading, on a vote of 149 – 137.  Aaron Wherry gives the early breakdown:

“Randall Garrison’s bill was supported by the New Democrats, the majority of Liberals (Judy Sgro and John McKay abstained), the Bloc Quebecois, Bruce Hyer, Elizabeth May and, by my unofficial count, 17 Conservative MPs: Erin O’Toole, Bernard Trottier, Terrence Young, David Wilks, Laurie Hawn, Michael Chong, Chris Alexander, Shelly Glover, Kellie Leitch, Cathy McLeod, Deepak Obhrai, Gerald Keddy, Jim Flaherty, John Baird, James Moore, Lisa Raitt and John Duncan.”

Before the Third Reading vote, there were three votes on clusters of amendments:

  • Amendment cluster one, Division no. 642 (defining Gender Identity as per the first half of the Yogyakarta definition): 152 to 134.
  • Amendment cluster two, Division no. 643 (dropping gender expression, and adding classes that have already been added to human rights legislation since the bill was originally drafted): 148 to 140.
  • Report Stage, Division no. 644 (concur the bill in with the amendments): 150 to 137

If you’re wondering how your MP voted on the amendments, today’s Hansard is up.  No one paired in any of the votes (so in answer to one query, no, Justin Trudeau didn’t pair to make up for not being present), although there were some abstentions from the votes on amendments. Earlier in the day, Rob Anders tabled the notorious poll / petition which he actively solicited responses for through his website:

“Mr. Speaker, I stand today to present, on behalf of thousands of people who sent these to my office, petitions in opposition to Bill C-279, otherwise known as “the bathroom bill”, that would give transgendered men access to women’s public washroom facilities. These constituents feel that it is the duty of the House of Commons to protect and safeguard our children from any exposure and harm that would come from giving a man access to women’s public washroom facilities. I present thousands of signatures on behalf of the riding in Calgary West, and I know that there are many others that have gone to other members in this place.”

The votes at Third Reading are as follows: Continue reading

C-279: To amend or not to amend?

… aaaaaaaaaaaaaaaaaaaaaaaaaaand we still don’t know what Bill C-279 is going to be when it’s voted on at Third Reading.

The bill, which proposes to add trans people to human rights legislation, had an hour of debate at report stage.  Randall Garrison requested that amendments be added to the bill, and the Speaker decided that they should be debated and voted on by the House, prior to Third Reading.  This was the first hour of that, with a second to follow.  Consequently, we still didn’t get any yes / no answer on whether those changes would be made.  Garrison anticipates that the changes are needed in order to have enough multi-party support to pass the bill.

For folks confused by mention that there are nine amendments, that means that the text of the bill is amended in nine places.  What it accomplishes is to drop “gender expression,” to define “gender identity” (details and my take on those changes here), and to correct it by adding some classes that have already been added to existing legislation since Bill Siksay first composed the text of this bill (“marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”).

Interestingly, the Parliamentary Secretary to the Minister of Justice (Robert Goguen) and two other Conservative MPs (Dan Albas and David Anderson) cite four examples to claim that inclusion is not necessary.  They all avoided talking about outcomes, by using phrasing like “the court dealt with the complaint[s] using the ground of sex.”  There is a reason for this, because one was ultimately decided against a trans woman in the B.C. Court of Appeal (Nixon v. RR), and another may have been arbitrarily ignored by a direct order from the Harper Government (Kavanagh v. Correctional Services of Canada)… although there’s some uncertainty about what policy is actually being practiced in the correctional system, right now.  Ironically, half of the Conservatives’ own examples actually demonstrate why clarity is needed.

Several commentators referred to the testimony of representatives of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal, acknowledging that technically, transsexuals were already read into existing legislation.  Randall Garrison correctly notes that they (particularly Ian Fine) did so reluctantly, while also stating that clarification would be helpful.

MP Anderson kept falsely characterizing the bill as “expanding the definition of sexual orientation to gender expression and to gender identity.”  Anderson (who showed up to be part part of the attempt to filibuster the committee proceedings, despite the fact that he was not a voting member of the committee) had his speech cut short by the end of session, and he will be continuing when debate resumes.

Highlights and lowlights of the debate can be found in the Hansard (audio, starting after 4:30), but here are some excerpts:

Randall Garrison:

… As we have just heard, the package of amendments is quite complex, but it really only does two things. Nine amendments are required because of the complexity of legal drafting, but again, only two things are happening here.

The first is that the bill adds the definition of “gender identity”, which we just heard the Speaker read out in the House. The second is that the term “gender expression” is removed from the bill.

I hope this reassures those members who wanted a somewhat narrower bill, a bill that was somewhat easier to explain in public, and a bill that might rule out some of the more extreme concerns or fears that some people had. I believe that if we approve these amendments, we will have that bill in front of us.

There were some concerns about “gender expression” being less well defined in law and that this would somehow open the gates to abusive practices on the basis of the gender identity bill. I will be very frank and talk about the main one of those, which was the concern that somehow people could use this bill to gain illegitimate access to public bathrooms and change rooms in order to commit what would always be criminal acts of assault.

I contacted the jurisdictions in the United States that have had these provisions in place for a very long time. Four of those did reply, those being California, Iowa, Colorado and the state of Washington. All of them reported the same thing: there have been no instances in any of those states of attempts to use the protections for transgendered people for illegal or illegitimate purposes—no incidents, zero, none.

There have been concerns on the other side from members of the transgendered community or those who have gender variant expressions that they wish to carry out. To them I would say that this is a somewhat narrower bill, but we believe that it preserves the essence of the protections we are seeking here, which is that transgendered and gender variant persons should have the same rights as all other Canadians.

If these amendments are adopted, it would be a somewhat narrower bill than that passed by the previous Parliament.

I have to take a moment to pay tribute to former MP Bill Siksay, who brought that bill forward through the minority Parliament. However, the bill died on the order paper of the Senate as a result of an election call.

If we approve these amendments and we go on to adopt this bill, what is it that we would actually be doing here? I am arguing that we are simply completing the Canadian human rights agenda. This bill would create no special rights, no additional rights and no unusual rights, but would simply provide the same rights, no more and no less, to transgendered and gender variant Canadians.

Another argument against the bill has been that it is not necessary to have it, that somehow people are already protected in Canada. I have a legal answer to that, and then I have a practical answer to it.

The legal answer is that we heard from the Canadian Human Rights Commission in committee that it would be very useful to clarify the law by having this explicit mention of transgendered rights in the Canadian Human Rights Act and in the hate crime section of the Criminal Code. It is true that in the past the Human Rights Commission and the tribunal have decided cases involving transgendered Canadians on the basis of sex discrimination; however, as they have pointed out, that is no guarantee that all future cases would meet the test of sex discrimination. Therefore, in order to make sure that all the possible issues that might arise are covered, it would be better to have an explicit statement in both the Canadian Human Rights Act and in the hate crime section of the Criminal Code….

Robert Goguen (Parliamentary Secretary to the Minister of Justice):

… As I have said, the ground of sex is already in the act and has been used to address instances of discrimination against this group. The addition of gender identity is therefore unnecessary.

However, if its addition is not purely symbolic, as the sponsor tells us it is not, then we would ask ourselves this. If this ground were to be added to the Canadian Human Rights Act, what sorts of new complaints of discrimination will be brought before the Canadian Human Rights Commission and Tribunal? How will employers know what kinds of workplace behaviour and expression would be prohibited? The answers to these questions are not clear to me and they are questions that we should carefully consider…

Irwin Cotler:

… As I mentioned with respect to the exclusion of “gender expression”, it was initially my preference that both terms remain in the bill. Again, I am cognizant of the possibility that even in the absence of “gender expression”, the term “gender identity” might, through case law and through an appreciation of travaux préparatoires, eventually come to encompass part or all that would have been protected by the former.

… To start, they [opposing Conservatives] came with their own amendments, including a handful that only reinforced the status quo formula of “sex” and “disability”. Then there was a frivolous amendment exempting official Canadian sports authorities from the provisions of the bill, as if to contain some fictional mass of men trying to compete in women’s sports, and vice versa. Finally, there was an out-of-context amendment that sought to ensure that no part of the Canadian Human Rights Act could infringe upon the rights of aboriginal peoples. While I firmly believe that we should only enact legislation that is mindful of the rights of Canada’s aboriginal peoples, I found there was no reason to codify this specific protection into the act, as the charter supersedes any statutory act, which is clearly set forth in section 52 of the Constitution Act. It appeared that this, too, was a diversionary item…

Kennedy Stewart:

… Passing the bill into law would be an important step forward for Canadians expressing themselves as transgendered. Trans people have regularly been shown that they are denied things that we all take for granted, such as adequate access to health care and housing, the ability to obtain or change identification documents, access to washrooms and other gender stations, as well as very fundamental rights such as the ability to exercise the right to vote and to acquire and maintain meaningful employment…

… We need to do this in the spirit of the anti-bullying pink shirt day that we are seeing here in Canada. Wearing a pink shirt is a good thing. It shows that Canadians care. However, this is an opportunity to actually do something concrete, to change the laws of our country to make sure that people who are facing discrimination are no longer discriminated against, or if they are, that they have remedy within our legal system, whether it is the Canadian Human Rights Act or the Criminal Code, in order to make sure that they obtain justice and are able to pursue their lives as they see fit.

What we need to take into account also is how the trans community is suffering under the current circumstances. Worldwide since 1970, 717 trans people have been reported as murdered. However, this of course is a severe undercount, because many countries do not collect adequate statistics in this area, nor do they correctly record violence against the trans community….

Dan Albas:

… By adding the proposed definition for the term “gender identity” in Bill C-279’s preamble, it remains unclear what situations it would cover and how the Canadian Human Rights Tribunal, or the criminal courts and the sentencing judges, would interpret these terms. This gives rise to the potential for subjective interpretations. These interpretations do not provide clarity nor certainty. In the absence of having greater certainty and a clear definition, it is important to recognize that existing laws already do apply to discrimination against transsexuals…

Mylène Freeman:

… Dr. Shuvo Ghosh, who is a trailblazer in this field is a pediatrician, a developmental-behavioural pediatrician to be specific, and an assistant professor at McGill University and at the Montreal Children’s Hospital, noticed that he was seeing more and more transgendered children and decided that he would open a clinic to specifically support their needs. It is the first one of its kind, in fact. I am very happy and proud that it is in my province of Quebec and so close to my home in Montreal.

Dr. Ghosh wrote me this letter to share with the House:

 (quoting) To the Honourable Members of the 41st Parliament of Canada:

Last year when Bill C-389 passed its third reading in the House of Commons, many questioned the wisdom of enshrining “gender identity” or “gender expression” in the Canadian Human Rights Act and whether this was redundant given that “sex” is already protected. With the NDP’s Private Member Bill on Gender Identity now up for debate, these questions are once again being raised. As a paediatrician who cares for gender non-conforming children, adolescents and their families who are part of the roughly 1-2% of all Canadians with differences in their gender expression, I would like to highlight the main reasons why this issue is crucial for Canadian society.

While “gender identity” and “sex” are related terms, they are no synonymous. The most obvious example of this dichotomy is in children born with medical intersex conditions who identify more with one gender of another, or rarely, neither or both; but their physical sexual characteristics frequently do not correspond with their identity. Are we to conclude, then, that they fall outside the protection of the Human Rights Act because their “sex” is indeterminate or incongruent with their behaviour? Youth with any variation in their gender identity…have been shown, in numerous studies and in various clinical databases, to be the group most vulnerable to extreme and violent bullying, depression, anxiety, and suicidal thoughts.

Adolescents with gender variance are 14 times more likely to attempt suicide than any other sub-group of teens, including other recognized and protected vulnerable populations. They are also the most likely to be rejected by peers and family members, and often lacking even any legal recourse to simply “be” who they are, frequently enter a spiral of self-harm that can lead to substance abuse and alcoholism. This heartbreaking distress is seen and reported even in children as young as 4 years old who simply recognize that their gender identity does not correspond with their anatomic sex, and have asked their parents to help them die. So many families of gender variant kids experience severe discrimination, societal rejection, and serious psycho-social difficulty. This translates to higher levels of divorce, greater school and emotional problems in siblings, and severe marginalization. These families need their children to be recognized, included and protected, just as any family does.

Isn’t it fair for Canada to stand up and to stand together, to say that our most vulnerable children and teens deserve to be specifically protected for the very characteristic that makes them vulnerable? Do we as a nation not have the responsibility to enshrine gender identity in the Canadian Human Rights Act? It is imperative. The medical evidence supports it; and these young Canadians, slipping through the cracks of our society, deserve to have their tears of loneliness and rejection wiped away so that instead of living and dying in fear, they may grow up to share and contribute to this wonderful country in which we are so privileged to live… (still quoting)

David Anderson (Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board):

… The desperate attempt, I would say, by member for Esquimalt—Juan de Fuca to amend the bill shows that the bill itself is not adequate. The bill is just not up to the level it needs to be in order for anyone to support it in this House. The amendments to the act as proposed by Bill C-279 are largely symbolic and vague, and I would say that they risk introducing confusion to the law. I would suggest as well that the amendments he is making do not add anything to it.

The bill is not properly designed to remedy the supposed social problem that it is aimed at addressing, and I would argue that it is largely unnecessary as well. For those reasons and a couple of others, I will be opposing Bill C-279.

… I understand that the member is now starting to try to put definition into some of these things because he is afraid he is going to lose the bill, and I think that he should lose it. Expanding the definition of sexual orientation to gender expression and to gender identity in the Canadian Human Rights Act and the Criminal Code makes who and what is being protected even less clear than it is. If the member’s purpose was to clarify the existing grounds, which I would maintain is unnecessary, he could have proposed adding an appropriate definition to the Canadian Human Rights Act. He did not do that. He has come back lately with an attempt to do that, but it was not his intention at the beginning.

… I would suggest that even with the definition he is trying to add today, he probably is still thinking that hopefully the courts and the human rights commissions will define it. However, I would argue that it is inadequate for a legislator to proceed in this way.

If our role is to bring laws forward, they should be brought forward with enough content that the courts and commissions are not the ones who are defining what those bills are and what they say. I believe that is inappropriate. It is an abdication of our parliamentary responsibility to pass laws that would leave us in a situation like that. For parliamentarians to leave new and undefined terms to the courts and human rights tribunals, I would argue, is risky and irresponsible.

I also want to point out—and I think this is probably something that the member hopes will happen—that when the courts rule on these grounds, they usually assume that the old language was inadequate and that they should make new and broader interpretations and that such broader interpretations must be sought…

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