Chris Bentley is one of the most powerful men in Ontario premier Dalton McGuinty’s cabinet. As attorney general, he and his office have been responsible for many of the provincial Liberals’ stickiest files, including G20 prosecutions and the appeal of a court decision that struck key anti-prostitution laws. Read the Xtra cover story here.
As the tape starts, Bentley is talking about his Twitter avatar, a picture featuring the attorney general in a construction hat.
[tape starts] It was just a picture. We did a construction crowning at the hospital, the London Health Sciences expansion in London, and they handed out purple construction helmets for us to do that. So, you know, purple are Western’s colours, so why not?
Xtra: Do you answer your own tweets?
Bentley: All the tweets are mine, and if there’s an answer, it’s mine. There’s no one else answering the tweets. Facebook might be a different matter; I have some assistants on that.
Xtra: I found your book.
Bentley: It’s riveting reading.
Xtra: It’s a little procedural.
Bentley: It’s a lot procedural. It’s all procedural.
Xtra: Sure. It’s required reading at U of T, so I could only borrow it for an hour or two at a time. And the copy at York is missing, so —
Bentley: It’s been a while since I had to read it.
Xtra: It’s been updated; there are 2010 updates. Are those updates yours?
Bentley: No. I finished off the first update when I got elected. And I realized that wasn’t going to work, so somebody else does the updates.
Xtra: One of the discussions in the book that I found fascinating — there is a section on illegal search and illegal detainment, which obviously has implications for what happened this summer during the G20. I’d be curious to know how you would apply your own writings on that subject to what happened in June.
Bentley: Well, I wouldn’t, at least not outside of court. The book is a practice manual, and it’s there to provide people with assistance, counsel with assistance in navigating the different procedural and substantive issues by taking the law as it exists and breaking it down and putting it in simpler form.
Xtra: Right —
Bentley: So it’s not intended as a commentary on what the law should be. It’s more of an outline of what the law is and how to apply it.
Xtra: Right — so there’s a section on searches without a warrant, which happened throughout the weekend in Toronto. You give a fairly limited number of reasons why that would be acceptable.
Bentley: Mm-hmm. Well, as I say, the book was done by me. The last insert I did was seven years ago. So I won’t comment about ongoing issues that are before the courts. That’s not what I do.
Xtra: What role did you have, if any, in the whole pile of charges that have been dropped in these cases?
Bentley: Well, the ministry handles prosecutions in the province of Ontario. We have experienced Crowns and we have a chief prosecutor who deal with the day-to-day issues that happen.
Xtra: Did you have a role?
Bentley: The chief prosecutor is the one who supervises the day-to-day issues.
Xtra: So you won’t tell me if you did or did not have a role?
Bentley: You know, there are about a thousand Crowns, and 600,000 charges in the province of Ontario.
Xtra: So, you don’t remember?
Bentley: No, it’s obvious that one person doesn’t deal with every charge in every case.
Xtra: Okay. So I wanted to talk to you about the trans bill that was introduced —
Bentley: It was introduced and I was asked a question.
Xtra: That’s right. And you defended — I mean, your defence was that trans people are already protected —
Bentley: It’s not a defence. It’s a statement. Transphobia is not tolerated in the province of Ontario. It’s not tolerated by the government. It’s not tolerated by the human rights approach we have in the province of Ontario. That’s one of the main reasons why we have a human rights system: to defend and protect people who might otherwise be the subject of discrimination, and to give them an avenue to effect redress. In fact, as you know, we now have a legal support centre as the result of changes to the human rights approach several years ago, the first in Canada, so that people can get access to free legal advice. And what I think is important, is that in the discussion of what people want to see in bills, there’s no suggestion that there isn’t protection in the human rights code. It’s mainly important to make it clear that transphobia is not tolerated…
Xtra: Are you opposed to protecting gender identity in the human rights act?
Bentley: Transphobia is protected under the sex rubric of the Ontario human rights code. We’ve made that clear. If there’s some suggestion that there’s something missing in that protection — that it does not provide the kind of protection that the cases say that it does — then we would have a very serious look at that. But it is my understanding of the law — and the application of the law by the tribunals — that transphobia is not tolerated and those protections exist.
Xtra: Right. Well, are you not worried that a future government could change that interpretation? With “gender identity” explicitly in there, it would —
Bentley: They couldn’t change the interpretation, but they could introduce amendments to the code, specifically refusing that protection. But the interpretation that has been taken, at least as I understand it, is that it recognizes that transphobia is not acceptable, and that discrimination or potential discrimination is forbidden under the law.
Xtra: Does this come from cabinet?
Bentley: On this or any other issue, as you know, I would not be discussing issues that are part of any government or related privilege.
Xtra: Sorry. I mean, have you discussed this with your cabinet colleagues?
Bentley: That’s another way of asking the same question, so…
Xtra: Are you worried about the political fallout that open support of trans rights could cause?
Bentley: My approach has always been to do what’s right. And when you do what’s right, that’s our responsibility to the people of Ontario, whether they live in my riding or in my position at the ministries or my position in government. What’s right is to make sure that everyone knows that transphobia is not tolerated, and what’s right is to make sure that the legal protections that are necessary to ensure protection are in place. And my understanding is that they are.
Xtra: Charles McVety is against the inclusion of gender identity. And I worry, because in a similar case in the last year, McVety’s lobbying proved effective with your government.
Bentley: Well, I’ll leave the question, the premise, to somebody else to deal with. I don’t answer to the individual that you speak to; I answer to the people of the province of Ontario.
We’ve been pretty clear. And I think in my answers to your questions today I’ve been pretty clear about where I stand, where the government stands and what the law is, and they’re all the same.
Xtra: Well, you’ve been pretty clear, except that you haven’t said whether you oppose the inclusion of gender identity in the human rights code.
Bentley: Well, the protections exist.
Xtra: So you are opposed?
Bentley: But the protections exist.
Xtra. Okay. So the sex work appeal. How was that decision reached?
Bentley: The prostitution issue? As you know, when the law was challenged, the province intervened to uphold the existing protections. When the decision of the trial judge was reached, we joined with the federal government in indicating that we wished to appeal that and uphold the protections that exist. We’re concerned about the vulnerable; we’re concerned about the young. We’re concerned about individuals who get lured in, or are preyed upon or manipulated by those who are in the sex trade and who just want money. And we’re concerned about communities.
Xtra: Sure. The language that was used in the case was around protecting the vulnerable, that the sex work provisions are putting women at risk unduly. As in, if sex work is legal but communication is not, and keeping a bawdyhouse and living off the avails —
Bentley: Yeah, we take a different position on the assessment of risk with respect to the trial judge’s decision. That’s why we want this case to proceed to an appeal.
Xtra: So that’s just an addendum to your comment about protecting the vulnerable. It came up again recently with Craigslist. I wonder what effect — it doesn’t seem like removing the Craigslist adult personals would have a huge effect on sex work, or on the ability of young people to find sexualized material on the internet.
Bentley: Craigslist took steps in the United States to remove these listings. A very good case has been made by a number of attorneys general, a number of reports have been produced that in fact their service was being used to lure children, to prey on children. Children were subject to risk. Those were the allegations. Criagslist took steps in the United States to remove them, and all we want them to do is take the same steps to make sure there is no way their service could be used for those purposes in Ontario.
Xtra: Isn’t it the responsibility of the parent to make sure they’re monitoring the behaviour of their children on the internet?
Bentley: I think we all have a responsibility to some degree, but certainly parents have a level of responsibility, individuals themselves, the broader society does, the government does, and we’ve decided to exercise our responsibility when it comes to children.
What Craigslist did in the United States is remove these listings so they could not be used for any wrong purpose. And all we’ve called on them to do is the exact same thing as they’ve done in the United States. And it’s just concerning that they haven’t done that.
Xtra: Why stop at Craigslist? The internet is full of sexual material.
Bentley: Well, they’re the ones who’ve taken the steps. They’ve voluntarily removed this material, and it seems to me they would want to do the same in the province of Ontario. I don’t think that they would believe that the people of Ontario are so fundamentally different than those of the United States. Kijiji, for example, took the step of removing this material, from my understanding.
Xtra: So, that doesn’t answer my question of why stop at Craigslist. You say Craigslist is a good place to start, because they’ve already offered to take down this material in other jurisdictions —
Bentley: Done it. Not offered, done it —
Xtra: Done it —
Bentley: That makes it a great place to start.
Xtra: And from there, would you move on to moving sex work ads off other places?
Bentley: I don’t know what we’ll do after that. We’re focused on Craigslist right now because they’ve voluntarily taken these steps in the United States, and I think it’s a good place to start.
Xtra: So we’re not going to see more plans to censor the internet from your government.
Bentley: Well, I don’t think I would accept your premise of your question.
Xtra: Are you not asking for —
Bentley: I think we’re asking that all individuals take steps to make sure that children are as protected as they can be. Those steps have been taken in the United States, and I congratulate Craigslist for doing that. I’m not sure why they won’t take those steps in the province of Ontario. And we’re not the only ones in the country; the federal minister of justice has asked them to do the same thing across the country.
Xtra: In the face of that, is there legislation coming?
Bentley: The federal government has actually taken steps to produce legislation. It’s unfortunate that it’s come to that.
Xtra: I understand that there’s a big difference between a voluntary code and the heavy hand of the law.
Bentley: The hand of the law. Sometimes it’s heavy, sometimes it’s not.
Xtra: Okay, let’s turn to one of the areas where it certainly seems to be the heavy hand of the law, and that’s prosecutions on HIV nondisclosure. I understand that there’s a campaign underway, postcards, directed at your office, from people who are calling for prosecutorial guidelines on HIV nondisclosure, so that poz folks know what to do in advance to keep from running afoul of the law. What do you think of that?
Bentley: Well. We have the Criminal Code of Canada to apply. The Criminal Code has been interpreted in relation to a number of these issues and applied. Now, in applying the Criminal Code, we have an ongoing process of engagement with members of this and other communities. And to the issues, we need to make sure we adhere to, what is to be done, what is the appropriate measures to take? And I think education is part of it —
Xtra: Educating who?
Bentley: Educating all about the provisions of the Criminal Code. It certainly is part of it, and we’re getting advice on what other steps need to be taken. But we’re engaging with members of the community on an ongoing basis and getting advice on what they would like to see. Now, you mentioned guidelines, what do you mean by guidelines? What issues would you like to see referred to?
And the cases have spoken to this in a number of different ways.
Xtra: That’s the point. The point is, there isn’t the clarity in the law. People don’t know when they are or aren’t running afoul of it.
Bentley: I don’t know that I would necessarily accept that there isn’t clarity in the law. I think there are quite a number of provisions that have been interpreted that make it quite clear.
Xtra: Oral sex, is that in or out?
Bentley: As to the steps — it’s not for — I don’t want to get into a situation where there’s a laundry list of what you can and can’t do and do the wrong thing. But, you know, the law has taken a number of steps, and the cases have made quite clear the types of issues you should be aware of and averred to in engaging in conduct. And I think we want to be sure we have the strongest possible guidelines, or approaches — let’s say approaches — but we also want to provide the kind of protection that people expect the law to provide.
Xtra: Right. Well, in fact, this campaign is a significant compromise on the part of HIV activists who have been, for two decades, saying that the criminal law has no place in interpersonal sexual relations that are consensual. So, to be honest, I feel like some of this is even a little desperate, because there’s a fear that if there’s a change of government this term, then it won’t get done.
Bentley: Why would that be?
Xtra: There could be change of government, fine, but there could also simply be a change in attorney general.
Bentley: So what would that mean?
Xtra: Would it be as bad? Would it be worse? Ontario right now leads the country when it comes to prosecutions of this kind, including for oral sex, including for where there was no significant risk and no actual transmission.
Bentley: I won’t comment on your characterization one way or another, and I won’t comment on what might happen in the future — no one can predict that. We interpret and apply the Criminal Code. Police will investigate, and where they find that there are reasonable and probable grounds to believe that offences have been committed, they will forward that to the ministry of the attorney general for prosecution. Now, issues such as the ones you raise can be informed by advice and an ongoing process of engagement with members of the community. If there is other engagement that people wish to provide, then that is good too. We will continue to get the best advice possible, to benefit from the best possible advice. And I think people being aware of what cases have said are acceptable, and what cases have said are not acceptable is very important. It’s always going to be — you mention consent, it’s always —
Xtra: The law has certainly been expanded over the last seven years. What used to be simple assault is sexual assault, aggravated sexual assault, and now there are two first degree murder convictions —
Bentley: Which I think are under appeal.
Xtra: Well, it wouldn’t surprise me —
Bentley: I can’t comment on cases that are still before the courts.
Xtra: Okay. The Liberals have been in power for seven years and haven’t provided the kind of clarity to say what’s in, what’s out.
Bentley: [Sighing audibly]
Xtra: And I know you don’t want to create a laundry list, but prosecutorial guidelines would undoubtedly clear the air at least. People who are at risk of blackmail for what was consensual sexual activity.
Bentley: Well, I think you’re winding up a number of things in conclusions. Whether the elements of an offence have been made out in any particular case is dependent on the facts as found by either the jury or the judge. What police do is investigate, and where they find there is reasonable and probable grounds that there is a case to be made out, they provide it to the Crown. And the Crown, if there is a case to be made out, under the Criminal Code — which has got nothing to do with the province — then they present it to either the judge or the jury. And they make the decision as to whether an offence has been made out or not. And if there are issues in there in which individuals would like to weigh in on, and provide imput to those who invesigate — the police — and those who prosecute — the Crown — there is an ongoing process where we are always looking for ways to make things clearer for members of the public. But every case is dependent on its facts, and it’s very difficult when you have a Criminal Code statute that’s related to the offence, cases that get prosecuted under any one section, it’s very difficult to know how the case will turn out, because you need to assess what the actual facts are as found by the judge or the jury, as opposed to what people say the facts were at the start. So there are some general markers out there as to what’s appropriate and what’s not, and if I think that if people are engaged in sexual conduct of any type, we want to make sure it’s consensual in every way, shape or form. And that goes for every type of sexual conduct. We have seen cases arise in every type of sexual conduct, and that places extra burdens on those who wish to engage in it, and that’s just the way it is.
Xtra: Will we see prosecutorial guidelines in the short term?
Bentley: Well, we prosecute where the cases are provided by the police and the offence, there’s a prima facie offence that could be made out in the Criminal Code. So we really take our direction from the case law and the Criminal Code as it exists. If there is new information that we can gather or glean from members of the community, or others out there, about information that we should have, we have an ongoing process to get that. Extra information can’t hurt. It can only help.
Xtra: So, prosecutorial guidelines—
Bentley: It’s an ongoing process of engagement.