Thank you for having me.
I will deliver my presentation in French.
The Quebec Council on the Status of Women is an advisory and review body that has sought to promote and defend the rights and interests of Quebec women since 1973.
As such, we have developed an expertise on prostitution and human trafficking. Last June, we published an in-depth research study in which I took part. I have it here with me. If you are interested, it is available. It is an opinion urging authorities to take action and help human trafficking victims and prostitutes leave the unhealthy environment in which they are exploited.
From a legal standpoint, we maintain that the Criminal Code must apply to pimps and johns because demand for sexual services encourages trafficking and prostitution. However, we believe that it is time to stop criminalizing prostitutes, victims of trafficking and non-victims, because in most cases, they sell their bodies after having suffered all sorts of abuses in their childhood. We will come back to that.
Given our bias for women, and specifically for exploited and vulnerable women, the council has been publicly supporting Maria Mourani's Bill since October. We feel that society must have powerful disincentives to try and put a stop to human trafficking. We think human trafficking is a serious crime that affects many parts of the world, as well as young Canadian girls who may be our neighbours or even members of our own families.
The changes set out in Bill ensure that police officers are better equipped. Other witnesses, like Detective Sergeant Monchamp, presented those arguments to you. In terms of principles, the bill also sends a clear message to those who might be tempted by this seemingly easy way to make money at the expense of naïve and renewable prey, since those people are a renewable resource as far as the pimps are concerned. The message is that crimes of exploitation and human trafficking will be fought and punished in Canada to the full extent of the law. Since these crimes represent a grave violation of fundamental human rights, the changes proposed by the bill would show to the whole world that Canada’s criminal system is exemplary in combatting trafficking.
The proposed changes include consecutive sentences for procuring and human trafficking offences. The council supports this tougher punishment, because a number of violent crimes are also often committed in trafficking cases. Let me give you one example from Montreal. Marie—that is not her real name—was a dancer in strip clubs for six years. She told me that she was in the clutches of a violent pimp. Not only was she locked in her home, beaten and raped by her pimp who would take all her earnings from lap dancing, but this same pimp took out his anger on her by burning her hand with his cigar butt and strangling her cat before her eyes. The cat was the only comfort she had left. This level of mental cruelty and control is difficult to imagine in a free country, but it does exist. This young, fragile woman was duped when she was 17 by a violent man who promised to take care of her. She did not dare report him because she was afraid her family would pay the price since he threatened to go after her mother or sister if the victim did not obey him. She only co-operated with the police once her pimp was arrested.
Bill is a major change in our way of doing things, but we don’t believe that the clause on consecutive sentences ties judges’ hands and prevents them from assessing cases individually. The bill provides new benchmarks, but nothing prevents judges from exercising their discretion in applying the principle of proportionality and imposing a sentence that is deemed fair for the accused, based on the circumstances.
Another notable change in the bill is the reverse onus. You talked about it here. The accused will have to prove that they do not make a living by exploiting someone else when a trafficking victim is present. This measure is another way to make prosecutors’ work easier, given that traumatized victims are often afraid to testify against their aggressors or are actually suffering from the Stockholm Syndrome.
As part of our research, we talked to a number of people involved, police officers and lawyers who explained that prosecutors were often happy to use the section against procuring, and not against trafficking, because it was harder to get evidence against trafficking. Yet, in most cases, trafficking is involved. By reversing the onus, the burden is partly placed on the accused. Given the long police surveillance operations that lead to arrests, we think it is appropriate to require the accused to prove, through financial records or otherwise, that they have their own sources of revenue. Let us not forget that, by definition, revenues from prostitution are not declared and are done in cash. So that complicates the work of the authorities a fair bit.
Finally, the bill states that proceeds of crime can be confiscated in procuring and trafficking offences. That's great. We think it is only fair that those found guilty can no longer enjoy the proceeds of their crimes.
Here are some numbers. In 2012, 56 trafficking cases went to court, involving about 85 accused and 136 victims. Of course, that does not seem like a lot, but that is only the tip of the iceberg, because it is difficult to measure the scope of illegal activities. My colleague Ms. Dionne will give you a bit more information about this later.
We often think that trafficking only happens to women from poorer countries who end up in our strip clubs. That is not true. Domestic trafficking, meaning trafficking between places and provinces within Canada, represents 90% of all cases that end up in court. People in the know told me about victims of domestic trafficking at the Centre jeunesse de la Montérégie in Longueuil. The way they operate is well-known and widespread. Young men belonging to street gangs hang around subway stations in Longueuil and even around schools. Young girls are seduced by gang members who, at first, vow to love and protect them and smother them with attention. Then the climate changes. The guys need money and ask the young girls to help them; they desensitize them with gangbangs, which are group rapes, before forcing them to become strippers and prostitutes.
We are talking about trafficking because those girls are dragged from apartment to apartment and lose their means of escape, because they may be beaten or drugged. Some girls from Quebec end up in Ontario. I am sure you have heard about this problem in the clubs close to the border, particularly in Windsor. Yes, those young girls are often runaways and come from dysfunctional families, but the pimps take advantage of them. In fact, they are not always runaways, because seduction is a weapon that can be used against teenage girls who may simply want to cut loose.
I will briefly take this opportunity to tell you about one of my concerns. It is important that the issue of trafficking does not overshadow the issue of prostitution. The two issues are closely connected, because, according to the Fondation Scelles, most prostitutes worldwide fall prey to human trafficking rings. I am very aware that it is easier to have a social consensus on an issue such as trafficking because the topic itself takes us back to slavery and the lack of consent. However, across Canada, we also have prostitution without trafficking, which is a more complex issue, less cut and dry, and no doubt more widespread, in terms of the number of victims. So we should not forget about this issue. Prostitution is not always linked to trafficking, whereas human trafficking for the purposes of sexual exploitation always leads to prostitution.
Let me explain. Some prostitutes who do not have a pimp are increasingly selling their services on the Internet. They tell their stories in the media and talk boldly about their life choices. In short, those are not trafficking cases. But does that mean that those voices that claim that women can choose to become prostitutes represent the majority of women who sell their bodies to survive? No, absolutely not. It may be comforting to think so, but it is wrong to believe that this freedom of choice is the norm. Even according to the lawyers representing those who call themselves sex trade workers and who have gone to Ontario courts, only 5% to 20% of prostitutes can make a profit from this lucrative business and do in fact make an informed choice.
The others, the vast silent majority, find themselves being exploited in violent situations that they did not choose and from which they cannot easily escape without outside help. They are vulnerable women who, in 70% to 84% of cases, have experienced abuse in their youth and have drifted into prostitution, often getting into drugs as a way to endure this type of exploitation. I have met with some of those women.
That is why we are against the decriminalization of clients advocated by the sex trade worker lobby. In fact, that would only further trivialize and increase this trade that objectifies women. That is actually what happened in places like the Netherlands.
In addition to the issue you are examining today, I would like to share with you our broader perspective on the matter, since you are in a position to ask for changes to the Criminal Code. One single model around the world has proven successful in protecting women against this fundamental violation of their right to equality. In Sweden, only the pimps and johns are criminalized. The penalties and consequences are harsh. The prostitutes are not prosecuted. They are provided with significant social services so that they can leave that environment and find a job. The Swedish model has worked.
Ladies and gentlemen, I encourage you to think about those issues. Beyond this bill on trafficking, which is important, there is the whole issue of the women who are trapped in prostitution.
Thank you, Mr. Chair and committee members. My name is Michael Maidment. I'm the federal government liaison officer for the Salvation Army in Canada.
I'd first like to thank you for the opportunity to present to you this afternoon on the issue of human trafficking and, more specifically, on Bill .
I'd like to begin by commending Madame Mourani for her work in this important legislation and for her commitment in presenting complex solutions to the issue of human trafficking in this country. I am delighted today to be joined by Naomi Krueger. Naomi is the manager of one of Canada's first shelters dedicated exclusively to caring for the victims of human trafficking. Deborah's Gate, which opened in 2009, aims to provide confidential, professional, and culturally sensitive community-support networks for survivors of this terrible crime.
The case management team at Deborah's Gate coordinates appointments with law-enforcement officials, immigration officials, legal counsel, trauma counsellors, and other service providers. Additional programs provide residents of the shelter with access to income assistance and/or sustainable income, addiction-treatment programs, health and dental care, and community-integration programs.
I want to frame my comments this afternoon by saying that the Salvation Army appears before you today in our capacity as Canada's largest social-service provider and with our 130 years of service-delivery experience, which includes, of course, programs such as Deborah's Gate. I hope to convey the perspective of our organization, as the leading social-service provider, on this legislation.
First off, I want to say that the Salvation Army wholly supports legislation that strengthens the ability of the criminal justice system to respond to the crime of human trafficking. Just as we supported Bill and Bill , we, too, support Bill . We believe the bill will provide law-enforcement officials with more tools to prosecute those who commit this heinous crime and that it is essential to preventing future victims.
With specific reference to the proposed amendments in the bill, we believe that allowing consecutive sentencing for offences is positive in two ways. First, a significant sentence is important to victims of human trafficking in so far as it provides a period of safety during which a victim doesn't need to worry about their trafficker being at large. This period is critical to a victim's ability to access restorative resources and engage in a long-term healing process.
The effects of violence and exploitation on a victim do not disappear when the trafficker is arrested. Instead, fear, anxiety, and hopelessness often increase, at least until the victim knows the trafficker will be held in custody for a designated period of time.
Second, we think this proposed amendment would strengthen the deterrent for perpetrators of human trafficking who believe the financial gain of the exploitation outweighs the loss experienced during shorter prison sentences. One such victim and resident of our shelter estimated that her trafficker earned $620,000 over a two-year period through her sexual exploitation.
I would like to raise one area of consideration regarding this amendment, that we're seeing more and more situations where victims who were once trafficked themselves have turned to aiding their traffickers with procuring and grooming other victims. This is generally a strategy that victims of human trafficking use to improve their own circumstances in an attempt to escape the exploitation they have undergone. Providing the courts with flexibility in the application of consecutive sentencing may prevent victims of human trafficking from being punished by the criminal justice system for attempting to escape from their exploitation.
With reference to adding the term “domestic” to the charge of human trafficking within the Criminal Code, the Salvation Army feels that this proposed amendment provides important clarity to the code. Human trafficking is a domestic issue. We've already heard that this afternoon. Yet the myth that trafficking is exclusively an international issue persists among many Canadians. Accurately describing human trafficking as a domestic issue will aid in correcting this long-term myth.
Deborah's Gate opened in 2009. Over half its residents have been victims of domestic trafficking, Canadian residents trafficked within Canadian cities, most often for sexual exploitation by Canadian men. Furthermore, our organization has found that women in our shelter systems were targeted as children as young as 12 years old, many from reserves in northern B.C., Alberta, and Manitoba, both by traffickers with gang affiliation and by individuals working alone.
The change this bill offers—the reversal of the burden of proof for the charge of human trafficking—is an important recognition of the devastating impact that sexual exploitation has on its victims. This reversal will not only make it easier to prosecute traffickers but will also protect victims who are struggling with the effects of being exploited.
With reference to extending the human trafficking charges to those who harbour a person who has been exploited, the Salvation Army is pleased that this proposed legislation considers the reality that many different individuals can play a role in the crime of human trafficking without ever meeting the conditions set forth by the legal definition.
While many individuals can share responsibility for holding a victim captive, it is rare that all parties involved are prosecuted. In our experience, traffickers are aided by multiple associates, each of which plays a role in facilitating their exploitation. While none of the associates may profit directly from a victim's exploitation, they supervise the victim's sexual services, assault victims when they fail to comply with their traffickers' orders, and coordinate travel from one abuser to another.
The proposed amendment would better equip law-enforcement officers to respond to the severity and complexity of trafficking operations holding all those involved accountable for the crime in its entirety.
It should be noted, though, that while this amendment in general enables effective enforcement of the offence, unintended consequences of the wording and the absence of evidence to the contrary may arise.
In particular, information that victims communicate to the police, health care practitioners, and other front-line service providers while they are in a state of fear or as a means to survival could be used as evidence to contradict exploitation or facilitation of exploitation at a later date. Victims have repeatedly reported that they were at times coached on what to say when questioned by authority figures.
Many times this coaching has led to the gathering of contradictory statements that could be used as evidence to the contrary if needed. A provision preventing the use of statements made by victims while in a state of trauma or coercion might help to avoid this unintended consequence.
In conclusion, while it is important to strengthen the tools available to prosecute those who commit the terrible crime of human trafficking, it is equally important, if not more so, to consider strengthening our ability to prevent human trafficking from occurring in the first place.
Thank you again for the opportunity to address you this afternoon and for your commitment to eradicating human trafficking in Canada.
I will do the first part of the presentation describing CATHII, and Ms. Dionne will do the second part.
I would like to thank the members of the committee for giving us an opportunity to testify.
The Comité d'action contre la traite humaine interne et internationale, or CATHII, has worked since 2004 to address the issue of human trafficking, whether for the purposes of sexual exploitation or forced labour. Since its inception by religious communities in Quebec, CATHII has become a major player in the fight against exploitation and the violation of fundamental rights.
CATHII's members are involved in three types of activities: research on the reality of trafficking and on Canadian and international laws on trafficking; training with a view to action; and, finally, giving priority to providing shelter and support to victims of human trafficking.
CATHII also wanted to contribute to an understanding of the issue. One of its activities was the release of a research study carried out in partnership with anthropologist Aurélie Lebrun in order to better understand prostitution from the standpoint of its clients. The organization also published a reflection paper entitled “Acting Against Human Trafficking”.
In 2006, CATHII organized a one-day conference. That meeting brought together the main community, government, police and academic players to define the needs of victims. A number of organizations pointed out that there were not enough services for human trafficking victims, an observation reiterated at the consultation meeting with the members of the Sous-comité interministériel sur la traite des femmes migrantes du Québec, which we organized in 2007. Another meeting in April confirmed the need to take concerted action, making sure that victims are the focus of concerns and initiatives.
Recently, CATHII started a Quebec coalition against human trafficking with over 25 organizations working for human trafficking victims.
Human trafficking, especially of women and children, is a violation of fundamental human rights. It has become an increasing issue in Canada and around the world. Canada is a source country, a transit country and a destination country all at once.
In 2005, Canada amended the Criminal Code to include human trafficking. Since then, it has added minimum sentences for traffickers of minor children, followed by human trafficking in the form of offences committed abroad for which Canadian citizens and permanent residents can be prosecuted in Canada. So the Criminal Code has been amended to specify some of the factors that courts can take into consideration when determining what exploitation means.
Bill is one of the measures intended to provide tools to legal and judicial stakeholders who are fighting against human trafficking.
We believe that Bill , introduced by Maria Mourani, will help to counter procuring and human trafficking in Canada. This bill provides solutions to the limits of the justice system while responding to some of our concerns about the needs of victims. It also will also go some way to providing the social and economic measures necessary to support those who have been exploited.
In our opinion, trafficking for the purposes of sexual exploitation and forced labour is a troubling phenomenon that affects Canada both internationally and nationally. In that context, we support the addition of the domestic dimension of the problem, which is often forgotten. Certainly, Canada is a destination and a transit country for victims of trafficking from other countries, but there are also human trafficking situations between Canadian provinces and between rural and urban areas. That is particularly true in the trafficking of aboriginal women.
Nevertheless, we would like to express some concerns. The bill seeks to provide a deterrent to the crime of human trafficking. We are in favour of the desire to deter the traffickers. But our fear is that this may adversely affect some victims, because the provisions may well not take into account a criminal’s degree of responsibility. Human trafficking is a complex problem, as is the path of the victims. Sometimes, victims become traffickers themselves in order to avoid exploitation or to make it stop. The desire to put such a deterrent in place leads to a real risk of penalizing some victims. How do we make sure that victims do not become targets of the bill?
We are in favour of the principle of the culpability of those who harbour trafficking victims or who are found with them. That presumption of guilt will make the role of police and prosecutors easier, no doubt. But it seems to us that this section should be applied prudently. In fact, we feel that it must not be applied at the cost of those in vulnerable situations who may simply be living with those being exploited. Access to justice in this country is not equal for all. Unfortunately, it is often the case that the most vulnerable are the most affected. This includes victims of trafficking. They may not be in a position to be able to prove their innocence because they do not have the means to do so.
The bill proposes a definition of sexual exploitation that draws its inspiration in large part from article 3 of the Palermo Protocol. The definition makes it possible to identify two distinct aspects of human trafficking: forced labour and sexual exploitation. Trafficking for the purposes of prostitution is the more widespread in Canada, and this article allows us to clearly include sexual services in the broader context of trafficking for the purposes of sexual exploitation. This addition must not allow us to forget the importance of the fight against forced labour, of which a victim of sexual exploitation may well be a victim as well. Recent international reports attest to a significant increase in this neglected reality of human trafficking.
The inclusion of procuring and human trafficking in the list of crimes that can lead to the confiscation of assets provides a way for exploited persons to be supported. This also corresponds to the recommendations made by the United Nations Office on Drugs and Crime about the use of the United Nations Convention against Transnational Organized Crime, as the first paragraph of article 12 of the Convention states.
However, we must not lose sight of the second paragraph of article 14 of the same convention that suggests that signatories “give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party so that it can give compensation to the victims of the crime”.
We have one final concern. Once more, it asks that attention be paid to the path taken by the accused, who are generally women, and to the circumstances that led them to become involved in trafficking.
In 2012, the federal government announced the National Action Plan to Combat Human Trafficking. It brought together all Canadian initiatives that were part of the fight against human trafficking. Among its strong points was the consolidation and bringing together of government action into the same department: Public Safety Canada. It also had the merit of focusing on the traffickers’ main targets, women and children. Those affected by human trafficking are generally the most vulnerable: migrant workers, undocumented immigrants, youth in distress, and aboriginal women and girls.
Although prosecuting criminals is an important element of the fight against human trafficking, Canada has done little following its international commitment to victim protection. Among the effective measures established for the protection of victims, one is to focus on a global and coordinated approach on several fronts: prevention, gathering reliable information, intersectoral coordination, victim identification and supporting community initiatives.
In protecting victims and protecting victims' rights, we recommend that Canada be more proactive in addressing the causes of human trafficking, poverty, discrimination, racism, and supply and demand. Among the paths to a solution that will counter trafficking for sexual exploitation, the Swedish approach is often held up as a model because it attacks the demand by penalizing those who purchase sexual services. Penalizing the johns goes hand in hand with public advertising campaigns aimed at men, awareness programs aimed both at youth and at those who are the normal targets of criminals, and assistance programs aimed at women who wish to get out of prostitution.
Part of our approach should be to assist women to get out of violent situations, such as prostitution and to provide them with various services: shelters, legal and social advice, education, and professional training.
We should also mention that one of the concerns about human trafficking often overlook one major element. That is forced labour. We remind you that Canada should ratify the international conventions on migrant workers and review the temporary foreign worker programs, particularly those that target so-called unskilled workers.
My thanks to our six witnesses for appearing before the committee today.
My questions are for you, Ms. Miville-Dechêne.
First of all, I would like to congratulate you for your document “Prostitution: Time to Take Action”. Anyone who is interested in the subject would do well to read it. In a way, we have no choice. Whether because of Ms. Mourani's bill or because of the decision in the Bedford case, which is going to be upon us soon, we are going to have to deal with it at some stage.
I would really like Bill to change things but I am not sure that that will be the case in practical terms. I do not think that victims are going to stop being afraid to come forward and that crown prosecutors and defence lawyers are going to stop reaching deals. Even if the intent is for harsher penalties, there is nothing to say that things will work that way.
I am not an expert in this area. After all your work in this area, you are probably a bigger expert than I am. When I read sections 212 and 279 of the Criminal Code, the sections that deal with procuring and human trafficking, I have a little difficulty seeing what makes them different from each other. Perhaps one of you can explain it to me. I find that they look pretty much the same.
In the Bedford case, the Court of Appeal had made its ruling. The Supreme Court is going to render its decision this summer, I think, although it may take another six or seven months, if not more. At that point, all this great work could end up in the recycling and we would be back at square one.
What do you think?
To all the witnesses, thank you being here today. Certainly, this bill has gotten a thorough amount of witnesses and testimony, but I found that all three groups had very important things to say today, so I thank you for your presence.
It does seem to me, Mr. Chair, that we're receiving a large amount of support for the bill, in that it does stiffen and send very clear signals that the perpetrators of these crimes against.... Again, the case before us, as we hear, is that it's mainly men, but I'd also like to talk about other measures that the government either has put in place currently or will be putting in place over the next few years.
For example, last June, the Conservative government launched a national action plan to combat human trafficking: to enhance our ability to prevent this crime, to better support victims, and to ensure that traffickers are held accountable. The government has directed this and is planning to spend more than $25 million over four years to implement this plan.
Furthermore, the victims fund has supported trafficking in persons projects, including partnerships with Public Safety Canada's contribution program to combat child exploitation and human trafficking, as well as various community workshops to raise awareness of trafficking in persons.
First of all, I'd like to ask all three groups, do you support these initiatives? Also, why do you think it's important not only to support this piece of legislation with some amendments, but to also continue to work on this issue?
(On clause 1)
The Chair: On the first clause, there are amendments from the Liberal Party and amendments from the Conservative Party.
The clerks have informed me that the four Liberal amendments are actually out of order, but I will let the Liberal Party speak to the amendments. Then I will read why, based on the clerk's information, they are out of order, and we can go from there.
For that, if you disagree, then you have to challenge the chair, and then there will be a motion to sustain the chair, blah blah blah.
Voices: Oh, oh!
The Chair: But we won't worry about that until we get there.
At any rate, for clause 1, the first amendment is from the Liberal Party.
Mr. Casey, I'll turn the floor over to you, if you'd like to move your amendment.
Thank you, Mr. Casey. I will rule on that amendment.
Bill amends the Criminal Code to provide for consecutive sentences for offences related to procuring and trafficking in persons. This amendment proposes to include a provision whereby the sentences for those offences could be served concurrently.
As House of Commons Procedure and Practice, second edition, states on page 766, “An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.”
In the opinion of the chair, the inclusion of a provision that could permit sentences for these offences to be served concurrently would be contrary to the key element of the bill and therefore is inadmissible. As amendment Liberal-4 is consequential to this amendment and contains the same provision, it is also inadmissible.
I'm ruling that it is out of order. Are there any questions or comments on that?
Seeing none, we will move on. Shall clause 1 carry?
(Clause 1 agreed to)
(On clause 2)
The Chair: Clause 2 has amendments.
On government amendment G-1, we have Monsieur Goguen.
I want to start by thanking all of my colleagues for letting me be here today to discuss the proposed amendments. I could have commented more, but unfortunately, I did not receive them until this morning.
I fully appreciate my colleague Mr. Goguen's position. But what is being added here does not have to do with extraterritorial jurisdiction. It addresses a point that was repeatedly brought to my attention: as things stand now, be it prosecutors or the police, when deciding whether the offence constitutes human trafficking or not, they do so more or less as they see fit.
When it involves foreigners coming to Canada, the trafficking is truly considered international, but when we're talking about domestic trafficking, between cities or provinces, for example, there is a subjective element there. In some cases, it's considered trafficking and in others, it's seen as procuring, if there's sexual exploitation involved. So this doesn't pertain to extraterritorial jurisdiction, which is already dealt with in the Criminal Code. It was Ms. Smith who introduced the measure, for that matter. The purpose is merely to clarify that, in cases where individuals are moved from one city to another or from one province to another, the offence constitutes trafficking and isn't necessarily just a matter of procuring.
The witnesses we heard from today said that, because of the technicality, the Criminal Code could be interpreted differently in some cases, depending on the individuals involved. All this does, then, is make things clear.
I'm just kidding, Mr. Chair.
We propose that subclause 2(2) be amended.
This clause proposes to add a presumption that an accused is exploiting a trafficking victim if they are shown to be habitually in the company of that person.
Our proposed amendment would ensure that the clause creates a true presumption, consistent with the existing Criminal Code presumptions, such as that found in subsection 212(3) of the code. Presumptions enable prosecutors to prove a required element of the offence by proving a fact related, which is not an element of the offence.
As currently worded, the proposed presumption does not accomplish this objective, primarily because the presumed fact that the accused is exploiting the victim, is not actually an element of the trafficking offence.
Our amendment would also ensure that the proposed presumption applies equally to the child trafficking offence in subsection 279.01(1), as enacted in June 2010 by Joy Smith's private member's bill, Bill .
I have some submissions with respect to it. I'm satisfied with the answer to the question, but I have some concerns about the amendment. Bear with me, Mr. Chairman. In my submissions there are a couple of hypotheticals, so it's a bit lengthy and it's been prepared in advance.
This amendment replaces the key provision providing the presumption that one who lives with a person being exploited is deemed to have exploited or facilitated for the purposes of trafficking in persons.
The committee will know that we have also submitted an amendment to this section that may or may not be brought up or debated. It specifically references “living off the avails”, which we believe is an important element that should be incorporated. My concerns with respect to the proposed amendment G-2 will necessarily reference the fact that we feel “living off the avails” should be there.
The first general concern is that the presumption here applies to a person who is not exploited, but who “lives with or is habitually in the company of a person who is exploited”. This raises the issue of minors whose parents may be human traffickers or who are unaware of what is occurring. It would also apply, for example, to teachers who may not know that a child in their classroom is the victim of exploitation, as teachers would arguably meet the definition of “habitually being in the company of”.
Certainly, we want to facilitate the prosecution of traffickers, but not at the risk of casting too wide a net. As such, I hope that if amendment G-2 passes, Liberal 3 will be given strong consideration to exempt minors from the operation of this provision. If that language is not acceptable to the government, I hope that it will propose a subamendment to G-2 to address this problem.
My second concern relates to the specifics of the presumption at issue. In Bill , the proposed presumption deems someone living or habitually in the company of an exploited person as exploiting them or facilitating their exploitation. Amendment G-2 stipulates that evidence that someone is in this situation is proof that the person exercises control, direction, or influence over the movements of the exploited person. I believe this presumption is problematic and counterproductive to our shared goal of enhancing the prosecution of human traffickers.
In the presumption in Bill , what is rebuttable is whether or not someone has exploited or facilitated exploitation. This is a different presumption to counter and one that goes to the heart of the matter, namely, exploitation. The wording in this amendment seems to suggest that we are concerned about who exercised control, direction, or influence over the movements of the exploited person or persons.
Let's imagine a scenario where two brothers live together and run a trafficking ring from their house. While one brother who interacts with the exploited individuals would surely be caught by this presumption, the sibling who does only the financing and who has no real interaction with those being exploited may raise arguments that his actions do not control or influence the movements of the persons. He may not be caught by this presumption, whereas the mere fact of his shared residence would be sufficient for a presumption of his involvement under both the bill unamended and under the bill with the Liberal amendment.
While that example illustrates the narrowness of the presumption after amendment under G-2, in some cases it may also be over-broad. For example, women working together as sex workers may not know the extent to which one may be controlled by her pimp, financially or otherwise. But a broad reading of this presumption would operate to target all of the sex workers in habitual contact with her as facilitating her exploitation. I don't believe that's our intention.
We're all aware that a similar presumption, relative to prostitution-related cases, is under review by the Supreme Court in the Bedford case. I don't wish to prejudice their analysis in any way, but I believe that this presumption may operate in a wholly undesirable, if not unconstitutional, way.
Thanks for your patience, Mr. Chairman.
I want to thank my colleague for that amendment. I think it provided more teeth. In the French version, however, if possible, I would like to add the word “et” after “exploitée” so that it reads “qui n'est pas exploitée et vit”. That reads better than “qui n'est pas exploitée vit avec une personne”, which sounds a bit funny to me.
In addition, I'd like to ask Ms. Levman a question about adding “proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation”. Won't that makes things harder for the police who have to collect the proof, even though the onus is reversed? Under the original clause, as soon as a person who is not exploited lives with a person who is exploited, that person is deemed to be exploiting the person being exploited, in the absence of evidence to the contrary. That is very broad, making the police's job much easier in terms of proving the offence beyond a shadow of a doubt using other methods of investigation.
So doesn't adding the words “control”, “direction” and “influence” create obstacles for police, who have to prove the offence? With the amendment, won't they have to first prove the person exercised control, direction or influence before the reverse onus can be applied?
Mr. Chair, you have Bill before you. I referred to this in my intervention with respect to amendment G-2. Essentially, this adds in the provisions with respect to living off the avails of human trafficking or exploitation, so it deals with the example I referred to in amendment G-2, the example of the two brothers, where one would have the availability of the presumption. One would be forced to deal with the rebuttable presumption, but the financier wouldn't. This would catch him.
I do share the concern of the sponsor of the bill and the witnesses over low prosecution rates for trafficking offences and agree that the presumption provisions may be beneficial. Such provisions, while not unprecedented in the Criminal Code, are limited in number, and rightly so, given the presumption of innocence. The committee has heard testimony that this reversal would help convict offenders when the victims of exploitation are too frightened to testify. This is a worthy goal, and I'm not seeking to do away with the reversal of the burden of proof.
I am, however, seeking to ensure that this extraordinary measure will not unintentionally lead to the conviction of a person who is not guilty. The current wording of the bill applies this provision to anyone who is “habitually in the company of” an exploited person, which is overly broad. The amendment would require someone to be living off the avails of the exploitation in order for the reversal of burden to apply.
Given the importance of these reverse onus provisions to the presumption of innocence, I think it's extremely important that we get it right. On the suggestion that the example may be off the wall, I don't think the example of the two brothers is. I heard Mr. Calkins referring to the availability of the aiding and abetting provisions within the Criminal Code, which would provide some assistance with respect to the actual offence, but in terms of the rebuttable presumption that we're now building in, it wouldn't.
I would ask that this be considered. Thank you.
I am going to rule now that this amendment proposes to introduce an exception to the provisions of presumption by limiting its application to that of persons over the age of 18, and of course, the House of Commons Procedure and Practice, second edition, again, on page 766—I should read that page more closely, I guess—reads, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.”
In the opinion of the chair, by limiting the application of this section, the amendment would be seeking to introduce an exception where none currently exists. This is a new concept that is beyond the scope of the bill, and therefore inadmissible.
(Clause 2 as amended agreed to)
(On clause 3)
The Chair: On clause 3, we have G-3, the third amendment from the government side.
The floor is yours, Monsieur Goguen.
There are subclauses 3(1) and 3(2), and what we're proposing to do is delete 3(2) so there will no longer be a 3(1), there will just be a clause 3. Those are the two parts of it.
Now I'll give you the rationale for why we're proposing to delete subclause 3(2).
This clause would create a new definition of exploitation for the purposes of trafficking offences, which would include specified means such as the use of force, fraud, deception, and abuse of authority, or a situation of vulnerability. Subclause 3(2) is vague and includes concepts that have not been interpreted by Canadian law, and is therefore likely to confuse. Moreover, the issue that this amendment proposes to address was already clarified by Joy Smith's Bill , which enacted an interpretive provision that stipulates factors the court may consider in determining whether an accused exploited another person for the purposes of the trafficking provisions.
These factors include whether the accused used force, or deception, or whether the accused abused a position of trust, power, or authority.
But there's another point I want to raise concerning the amendment.
An hon. member: The government is here to help.
Some hon. members: Oh, oh!
Ms. Maria Mourani: The other thing the amendment is doing is deleting subsection (1.1), which was added to refer specifically to sexual exploitation. It was added because, as the Criminal Code currently stands, labour is defined as follows: “For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service [...]”. Prostitution and sexual exploitation aren't, however, services. We have to be careful here.
Every women's group I consulted with is asking that, under the Criminal Code, prostitution cease to be considered labour or a service. It is neither. It's sexual exploitation.
Actually, nothing in subsection 279.04(1) is changing. We're merely adding a subsection (1.1) to set out as clear of a definition as possible of all the methods that procurers can use to trap victims and exploit them. We're proposing this new subsection, in the context of sexual exploitation, to try to provide for all possibilities, whether it's providing, or offering to provide, sexual services by the use or threat of force, by fraud, deception, manipulation, by obtaining the consent of a person or by whatever means it may be. We tried to provide for all possibilities because I was even told that, in some cases, procurers were able to argue that they had never given the money to the victims. That's why we added the idea of the promise even without the acceptance of payments. It's so comprehensive that it covers, to the extent possible, all the cases I was told about.
So I urge my government colleagues to rethink their amendment. I believe it's paramount that we distinguish between sexual exploitation, services and all the details that go along with that.
Let's take a vote on amendment G-3.
All those in favour of G-3?
(Amendment agreed to)
An hon. member: We're running out of time, Mr. Chair.
The Chair: I'm going to get to it as soon as we're done here.
We're on clause 3 as amended.
All those in favour?
(Clause 3 as amended agreed to)
The Chair: We are about seven or eight minutes past the normal end of the meeting. The rule is that we can extend the meeting with a majority vote.
I can tell you, just so you have an understanding of where we are, that we have clause 4 with no amendments, clause 5 with one amendment, and clause 6 with one amendment. We're at least halfway through if not more. If you want to continue, I'd be happy to continue, and I can ask the question again at 6 o'clock if we're not there by 6 o'clock.