Bill C-36: Analysis In Detail - Part I

The biggest pieces of Bill C-36 are well described elsewhere in the media, and there isn't any real surprise to it.  The Harper Government has more or less just resurrected the old environment.  

As with all such things the devil is in the details.  The odd little lines where the government changes clauses about without really talking about it.

For example, consider the following from the First Reading text:

3. Subsection 7(4.1) of the Act is amended by replacing the reference to “212(4)” with a reference to “286.1(2)”.

So, referring to the criminal code, Subsection 7(4.1) reads as follows right now:

Offence in relation to sexual offences against children
(4.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1, 172.2 or 173 or subsection 212(4) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. *emphasis added

What exactly is subsection 212(4) of the Criminal Code?  In context, in the current criminal code, S212 in general is offences related to the "procurement" of prostitute's services.  In particular 212(4) is related to underage prostitutes:

(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.

This is being replaced with a reference to S286.1(2).  That's a fair distance away from the current Criminal Code provisions related to prostitution.  In fact, it's in a whole other part of the Criminal Code which this legislation amends.  At present, S286 reads:

286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused. 

Once Bill C-36 is passed, it will read:

286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused. 

Commodification of Sexual Activity

Obtaining sexual services for consideration 

286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of(a) an indictable offence and liable to imprisonment for a term of not more than five years and a minimum punishment of, 

(i) in the case where the offence is committed in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present,  

(A) for a first offence, a fine of $2,000, and 

(B) for each subsequent offence, a fine of $4,000, or

(ii) in any other case,(A) for a first offence, a fine of $1,000, and(B) for each subsequent offence, a fine of $2,000; or(b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months and a minimum punishment of,(i) in the case referred to in subparagraph (a)(i),(A) for a first offence, a fine of $1,000, and(B) for each subsequent offence, a fine of $2,000, or(ii) in any other case,(A) for a first offence, a fine of $500, and(B) for each subsequent offence, a fine of $1,000.Obtaining sexual services for consideration from person under 18 years(2) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of(a) for a first offence, six months; and(b) for each subsequent offence, one year.Subsequent offences(3) In determining, for the purpose of subsection (2), whether a convicted person has committed a subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:(a) an offence under that subsection; or(b) an offence under subsection 212(4) of this Act, as it read from time to time before the day on which this subsection comes into force.Sequence of convictions only(4) In determining, for the purposes of this section, whether a convicted person has committed a subsequent offence, the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences, whether any offence occurred before or after any conviction or whether offences were prosecuted by indictment or by way of summary conviction proceedings.Definitions of “place” and “public place”(5) For the purposes of this section, “place” and “public place” have the same meaning as in subsection 197(1).Material benefit from sexual services286.2 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.Material benefit from sexual services provided by person under 18 years(2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.Presumption(3) For the purposes of subsections (1) and (2), 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.Exception(4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit(a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;(b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;(c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or(d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.No exception(5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person(a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived;(b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived;(c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration;(d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3; or(e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.Aggravating factor(6) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that that person received the benefit in the context of a commercial enterprise that offers sexual services for consideration.Procuring286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.Procuring — person under 18 years(2) Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of five years.Advertising sexual services286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of(a) an indictable offence and liable to imprisonment for a term of not more than five years; or(b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months.Immunity — material benefit and advertising286.5 (1) No person shall be prosecuted for(a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or(b) an offence under section 286.4 in relation to the advertisement of their own sexual services.Immunity — aiding, abetting, etc.(2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services. 

This is an important change, and one that is both subtle and infuriating.  Sections 280-286 deal with abduction scenarios - particularly those involving underage victims.  The government has wedged a bunch of prostitution related discussion into S286, and in doing so is implicitly arguing that prostitution is clearly and directly linked with abduction and human trafficking.

Are you concerned yet?  You should be.  The Harper Government is muddying the legal waters here considerably, and there are potentially serious consequences to these changes.  First of all, the assumption that lies under this is questionable indeed.  To assert that there is an undeniable link between underage prostitution and child abduction is questionable at best.

Further, although S280-S286 appears to largely be intended to deal with abduction of youth scenarios, the amendments to S286 appear to be broad, involving more than scenarios which involve youth, which fundamentally perverts the intended application of S286.

I suspect that in part the government's intention in burying this in S286 is to create a bit of a legal shield for this portion of their legislation.  It clearly reiterates much of what used to be covered in the previous legislation, and thus creates the same hazards for sex workers in general.  By attaching to the sections on youth abduction, the Harper Government is clearly hoping that they will be able to make the case that these provisions should stand because they are "intended to protect youth".

Not only does it provide them with a shield in court, but they can accuse any opposition amendments of "not being willing to protect children".  Which is complete nonsense, but then again, so are most of the criminal justice laws that this government has passed.

The Harper Government - Slimy.  Dishonest. Unethical.

Apparently MacKay Missed The Point ...

When the Supreme Court of Canada struck down Canada's prostitution laws last year, it did so on the basis that the existing laws placed sex workers in unreasonably dangerous situations.  

Quite appropriately, the Supreme Court gave the government a year to table new legislation.  Today, Justice Minister Peter MacKay tabled the government's response in the House of Commons.

The bill would create new offences for: 

— The purchase of sexual services and communicating in any place for that purpose. 

— Receiving a financial or material benefit from the prostitution of others, including through businesses that sell the sexual services of others online or out of venues such as escort agencies, massage parlours, or strip clubs that also provide sexual services. 

— Advertising the sale of sexual services in print media or on the Internet. 

— Communicating for the purpose of selling sexual services in public places where a child could reasonably be expected to be present.

Frankly, I'm not sure that I see any substantive difference over the old laws.  

Under the old laws, prostitution itself was legal but almost all related activities — including communicating in a public place for the purposes of prostitution, pimping and running a brothel — were criminal offences.

Eyes open.  The Harper Government has just done exactly what one might expect.  Essentially they have just returned to the old laws, and added a few new words here and there.  Particularly "clever" is the offence of "communicating for the purpose ... where a child could reasonably be expected to be present".  Gotta protect the children, donchaknow.

Of course, the government knows full well that a public place by definition is a place where children can be found.  Come to think of it, I wouldn't be at all surprised to see this same clause in the law used to effectively criminalize prostitutes who have children.  If it is "dangerous" for a child to witness a transaction being negotiated, the one might imagine that the government presumes that a child living with a prostitute parent must be in enormous danger.

Okay, you can't "communicate in a public place".  So, you go into a "coffee shop" or "club" to negotiate the deal.  Presto, that's illegal too.  If the business in question exists to facilitate such negotiations, they are subject to other clauses in the law.

Want to advertise your services?  No can do.  That's illegal too.

Once again, we see the Harper Government's inability to comprehend the finer points of constitutional law in this country.  What they have done is just re-create the same conditions that rendered the previous laws inoperative.  Now this country's sex workers face another decade or so of litigation to overturn what amounts to the same laws as were thrown out last year.  I'm sure the Harper Government has written a few clever weasel phrases into the legislation to sidestep the particulars of the criticisms of the previous laws - just enough to force further litigation before the right thing happens again.

Oh yes, the government is blathering on about "programs" to help people exit the sex trade.  Newsflash:  not everybody in that trade wants to leave it.

Harper: A Decade In And He Still Doesn't Get It

Stephen Harper has been in power for the high side of a decade.  That's a long time.

Most Prime Ministers by this point in their careers have figured out that the foreign affairs portfolio is a tricky one.  When you are a smallish nation like Canada, you get much better results by influencing rather than playing the puffed up pugilist.

Harper hasn't figured this out.  Does he really think that Putin notices his pronouncements in the wake of sanctions?  Is he really daft enough to believe that his military posturing is going to convince Putin to back out of Crimea?

It seems to me that Harper is following his usual hyper-partisan instincts.  He isn't actually trying to influence Putin.  He's not interested in that.  He is much more interested in playing the foreign policy cards in his hand as part of a propaganda campaign aimed at getting re-elected next election.

No doubt, Harper's base loves the idea of a foreign policy that they don't have to think about.  A world which is cast in stark tones of good and bad.  Israel is good, Russia is bad.  The US is good, Iran is bad and so on.  It seems easy to grasp.

Yet, it is also not so simple.  In reality the world is a subtle place, shaded mostly in degrees of grey.  No country is essentially good or bad.  The days of looking upon Russia as "the other", shrouded in secrecy behind the old "Iron Curtain" are long past.  Globalization has dissolved those mythologies.  Russia is a nation led by a man who wishes to revive the old Cold War tensions, and Harper is fool enough to believe that this is to his own benefit.

Harper has been tone deaf on foreign affairs from day one.  Just as Putin is in fact a fool to try and resurrect the old "Soviet Empire", Harper is an even greater fool for playing to Putin's tune.  

Harper Describes Himself

One of the more ludicrous things the Harper Government has been pursuing is creating a "monument to the victims of communism".  A more cold-war propaganda-esque move is almost unimaginable.  

But, in Harper's speech at a fundraiser yesterday, he opened his mouth and promptly engaged in self-description.

In language reminiscent of the height of the Cold War, Harper lambasted communism and oppressive or even murderous ideologies. 

"Evil comes in many forms and seems to reinvent itself time and again," he said. 

"But whatever it calls itself — Nazism, Marxist-Leninism, today, terrorism — they all have one thing in common: the destruction, the end of human liberty."

Wow.  Coming from a man whose government has done more to create a nouveau fascism in Canada than any could imagine, this is straight up irony.

He's talking about human liberty.  This coming from a government which has imposed hefty mandatory minimum sentences wherever it can, from a government that has turned CSEC into an agency which is spying on its own citizens, and in general has been trying to turn the RCMP into its own little version of East Germany's Stasi.

Going after "communism" as some kind of evil threat is such a straw-man argument it's straight up there with some of Nazi Germany's propaganda campaigns.  Create a false threat and then go after it at every opportunity.

If communism is such a dire threat, then why has Harper been engaged in the highly secretive TPP negotiations, which mysteriously involve China?  Or perhaps he'd like to explain why he has permitted CNOOC to buy up major Canadian oil and gas assets?  After all, wouldn't China be the most despicable evil on the planet?

This is a man who has tried repeatedly to violate the terms of this country's constitution.  He has tried to appoint judges to the supreme court using partisan criteria, he is passing laws which are designed to increase the scope of government surveillance and laws which attack the fundamental principles of fair democracy.

For Harper to attack a straw man like "communism" when he himself is acting in a manner consistent with the worst dictators that he would criticize.

 

Nasty, Just Plain Nasty

It's not like it comes as a big surprise that the Harper Government is nasty.  But the extent of their vileness continues expand.

First, the Harper Government seems to have decided to shut down basic literacy programs across Canada.  The claims of the Harperites on this matter are the usual "we don't believe these programs are useful in their current form".  Basic literacy is always useful, unless you're a Conservative and you like the idea of having an underclass of people who aren't in a position to think about what's happening to them because they're struggling just to get by in near slavery conditions.

But that's not all of it, not by any means.  This week, Harper is hosting a "summit" on Child and Maternal Health, following up on the 2008 G20.  In a fit of almost laughable hypocrisy, he said that people should pay attention to the science on vaccination.  Coming from a Prime Minister who has been systematically dismantling science research in this country for several years, the admonition is laughable.

It gets even better.  When confronted on the fact that the government is restricting the availability of funding under this program to organizations that do not provide abortion services, he replied:

"We're trying to rally a broad public consensus behind what we're doing, and you can't rally a consensus on that issue, as you know well in this country," he said. 

"It's not only controversial here, it's controversial and often illegal in many recipient nations."Harper doesn't agree with the suggestion that he is exporting his beliefs abroad to other countries by not funding abortion services. 

"We're really not taking a position on that. We have taxpayers' money and we have great needs," he said to Thibedeau. 

"And frankly, there's more than enough things that we can finance, including contraception, without getting into an issue that really would be extremely divisive for Canadians and donors."

The government is taking a position.  Once again, we find Harper's often denied but impossible to ignore social conservative agenda.  He keeps talking about "not opening the debate", but then he allows his back-benchers to put forward legislation on the matter (which the front bench mysteriously votes for until it would become a political liability).  On this matter, he is essentially taking the anti-abortion stance that once a woman is pregnant, she has no say in the matter after that.

None of this is surprising, but that doesn't change the fact that this government is continuing to be fundamentally dishonest with Canadians on a variety of fronts. 

Health Insurance Is Becoming A Scam

I have long been suspicious of health insurance plans of any sort.  Even short term health insurance for travel seems to be written in such a way that it is weighted quite firmly in favour of the insurer than the insured.

Recently, three cases in Canada came to light that underscore the point.

“They hold all the cards in their hand. It’s a poker game, and I don’t think we are the winners,” said Jean Tetiuk, of Toronto, whose $12,000 claim was rejected by CIBC. 

In each case, the medical emergencies abroad had nothing to do with any pre-existing conditions they were asked about. 

So, if you had some obscure "pre-existing condition" that you had forgotten about or didn't answer the booby trap questions on the questionnaire correctly for them, your insurance is null and void?

CIBC later refused to pay, because Peixoto filled out a CIBC questionnaire — sent to her after she returned from her trip — answering that she had not been treated for a heart condition. Before buying the policy, she had only answered health questions over the phone. 

Records show she was tested for heart problems in 2011, after she had pain in her arm, but doctors found nothing significant. Because of those tests, CIBC said Peixoto should have answered yes to the heart condition question.  

“I was never treated for a heart condition. I never had a heart condition. I’ve been tested and different things but I never had a problem before. And I still don’t have a heart problem,” said Peixoto. 

This is nothing more than the insurers playing semantics.  They are hiring teams of lawyers and very carefully constructing questions using language that has specific meanings in the legal world and most ordinary people would understand it to mean something quite different.

This kind of semantic game is up there with the "pre-existing condition" escape clause that every health insurer out there likes to play.  If you have a long term need for medication of some sort, hope like hell you aren't going to have to change insurers along the way - because there goes your coverage.

And Harper has begun the process of dismantling our national health care system, which will subject more and more Canadians to this kind of chicanery at times when they need help the most.

Corporate greed knows few bounds, and is usually only bounded by laws.  When it comes to health, there are more ways to weasel out of providing coverage that they have committed to, and it will always be at the expense of the individual.

If insurance companies are playing games like this with travel insurance coverage, can you imagine what will happen when Harper hands over the keys to medicare to them?

On RuPaul And The Use Of Language

I've seriously tried to stay away from the fracas that has developed around RuPaul's use of the word "Tranny" (and a couple of other terms which I think are both denigrating and offensive to transitioning transsexuals that I will not repeat here because they are straight out of the fantasy world of pornography).

However, after his latest outburst, I cannot remain silent on the subject any longer.

RuPaul is giving the entire drag community a bad name as far as the rest of the Trans* community is concerned.

Here's why.  Drag is seen as performance art first and foremost.  In that context, I can respect the fact that the use of certain slang in that community is going to be over the top.  Heck, in the context of his show, I don't even get terribly upset about it.

The problem is that the term "tranny" is seen by many who are transition bound as an epithet.  Most MtF transsexuals view themselves as women, or possibly "trans-women" for those who acknowledge their past.  Terms like "tranny" come out of the pornography world and promote objectification of trans women and their bodies.

Women have fought for years against being treated as objects.  Transsexual women fight a dual battle on this front.  Not only do they face the casual objectification that most women experience in their daily lives, but they also find themselves subjected to a great deal of sexual objectification as a result of their personal history.  It should come as no surprise that the Trans* women are up in arms over RuPaul's repeated outbursts.

The irritation arises from a perceived disrespect.  The community has been clear many times in the past that it does not like the language of "Tranny" (or other words), and RuPaul in particular keeps on using it in very public contexts.  Perhaps in the land of Drag the language used is perfectly acceptable.  That doesn't mean in a public context the terms are understood as having the same meaning or that they don't apply to other parts of the "transgender community".

RuPaul's "take a chill pill" response to the trans* community is unfortunately the wrong response.  It just serves to inflame tensions.  I've seen a lot of trans women point out that Drag Queens don't live it 24/7, and therefore don't have any right to use language that is so offensive to them.  To some degree they are right - RuPaul seems to have lost sight of the fact that his language is reflecting on more than just his show.

I'm not at all sure how RuPaul would react to the use of the racist "n-word" by a bunch of white people, or the "f-word" by straight people.  There are certainly parallels to be considered.  Out of respect, people of caucasian descent don't use the "n-word", especially not in public settings.  It would be nice if RuPaul would apply the same rule to his own choice of language where it overlaps with other populations in the trans* community who object to it.

[Update 28/5/14]
... and the poison spills forth from the participants of RuPaul's show.
[/Update]