Bill S-224

An Act to amend the Criminal Code (trafficking in persons)

This enactment amends the Criminal Code to specify what constitutes exploitation for the purpose of establishing whether a person has committed the offence of trafficking in persons.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 73 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on March 22, the committee is meeting in public to continue its study of Bill S-224, an act to amend the Criminal Code, trafficking in persons.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I'd like to take a few moments for the benefit of the witnesses.... Actually, I'll pass. I think you are all well experienced, and so are Mr. Caputo and the analysts online. I think we're good to pass on Zoom instructions.

I welcome the officials from the Department of Justice, who will help us by answering technical questions about this bill and the amendments. We have with us Nathalie Levman, senior counsel, and Ellen Wiltsie-Brown, counsel, both from the criminal law policy section.

Welcome, both of you.

We're ready to start clause-by-clause. I'd like to provide members of the committee with some reminders on the process.

Members should note that new amendments must be submitted in writing to the clerk of the committee. During debate on amendments, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment.

All of you received the agenda and the amendments package again yesterday. Let's now proceed with the clause-by-clause study of the bill.

I will now call clause 1 and Bloc amendment 1, number 12547306.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Thank you.

I'll stay with Ms. Way.

It seems that one of the goals—perhaps not the main goal—of this Bill S-224, this amendment, is to make it easier to obtain convictions for trafficking offences. I'm just wondering, Ms. Way, if you could comment on whether that would be the case. Also, what are the other factors that might be causing lower rates of convictions for this crime?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

Bill S‑224, which I assume you read, replaces subsection 279.04(1) of the Criminal Code. The proposed new subparagraph 279.04(1)(b) introduces the notion of “any other similar act”. Do you think it's too vague, or is it a good addition? I'd like you to give me a quick answer; there's only 30 seconds left.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Ms. Way.

If I could follow up with you, we also know that the Criminal Code broadly interprets the human trafficking provisions to hold to account those who are trafficking and those who have also engaged in psychological forms of coercion.

Maybe this is for all the witnesses, but we'll start with Ms. Way.

Can you please give us any ideas for how could we ensure that prosecutors keep the tools that are currently in place if Bill S-224 was to pass?

[Wendy Gee, Executive Director, A New Day - Youth & Adult Services]

I want to thank the standing committee members for the opportunity to speak today about Bill S-224, an act to amend the Criminal Code, trafficking in persons, to remove the unfair burden placed on exploited individuals who must prove there was an element of fear in their abuse to obtain a conviction in court.

My name is Wendy Gee, and I am a mother of a daughter who was sex-trafficked as a teenager here in Ottawa. In my professional life, I'm the executive director of a charitable organization that provides long-term restorative housing and programming for young women who have been sex-trafficked throughout Canada. I also chair the Ottawa Coalition to End Human Trafficking, a steering committee of 40-plus frontline human trafficking organizations in Ottawa and the region.

When young people come to A New Day, they want to move forward and start their recovery. Many have spent months, if not years, living with sexual violence and physical abuse. The result is horrific trauma, PTSD, and addiction challenges. They have missed most of their formative adolescent lives, which should consist of attending school, making friends and learning life skills that prepare them for adulthood. Instead, they're forced into a life of sexual violence, 10 or more dates per day with strangers who have purchased them for their sexual fetishes, and physical violence, beatings and torture if they do not perform and make money for their traffickers.

Amid this deranged lifestyle is a person, a trafficker, who controls every movement of that victim. This victim becomes dependent on their trafficker for everything from tampons and toothpaste to food and clothing. They develop a trauma bond, where the victim now believes that the trafficker is their protector. They may fall in love with them and feel that the trafficker holds their best interests at heart, including keeping them safe.

The victim is indoctrinated to believe in an “us against them” mentality, meaning the trafficker and the victim are together against the rest of the world, which wants to pull them apart. Is this logical reasoning? Of course not, but a trafficker knows his business, which is manipulation and coercion.

A trafficker will use any tactics to keep making money from their victim, even if that means keeping their victim in love with them. You can understand how challenging it is for a victim to come forward and provide a statement to the police. Even though their situation was horrific, the victims still had their basic needs met, and they found it challenging to believe they were being exploited.

My daughter told me that she loved her abuser, that she only did what she did to help him because he had an addiction. She thought she was complicit, and consented. Now she knows this is not true. She still has days when she struggles with what happened, and very rarely will she discuss it. Honestly, I can't blame her.

The young people I work with say the same thing. They want to move on. They don't want to discuss it anymore because it hurts. They feel shame. They feel stupid. And they believe they consented to the situation.

Throughout my tenure as the executive director of A New Day, only two young women came forward and provided a statement to law enforcement about their trafficking situation. It takes incredible strength to do so. They have to relive their sexual abuse, addiction and violence, and the shame of a horrific lifestyle they were forced to endure. They know that if they provide a statement, they will face their abuser in court and all those repressed feelings will overwhelm them. They also know that they will have to explain why they participated in a lifestyle that put them at risk and why they simply didn't leave. Why should a victim have to explain why someone abused them?

The burden of someone's violent, coercive behaviour and control should not be placed on the victim who has suffered. I see first-hand what a trafficker's violent behaviour leaves behind: broken noses and bones that were not medically set back in place, fertility issues because of botched abortions, multiple miscarriages, chronic STIs, not to mention the violence of repeated and daily...let's call them “rapes”, because that's what they are. There are also nightmares, trust issues, low self-esteem and self-worth, depression and anxiety, and self-harm in the form of cutting, where wrists, arms, inner thighs, vaginas and necks have been repeatedly slashed to release the mental pain they're enduring, or they can't do it anymore and they return to the life because they feel that's where they belong—overdosing on drugs, and death.

Eliminating the burden of proving they were fearful while they were exploited tells a victim that we believe them, that what they have endured was not a measure of their worth or value, was not indicative of the type of treatment they deserved and was not the result of poor decision-making, and that their victimization will not be continued by our justice system.

Thank you.

[Casandra Diamond, Founder and Executive Director, BridgeNorth Women’s Mentorship & Advocacy Services]

Good afternoon members. Thank you for inviting me to share with you today. It is a privilege to be here and to have the opportunity to speak not only as the founder of BridgeNorth, but also as a survivor.

I would like to share why I believe Bill S-224 would help trafficked persons.

It would combat trauma bonding, a known psychological impact that people who are trafficked experience as a result of a trafficker’s manipulative tactics. Under the proposed amendment, the requirement to prove a reasonable expectation of fear would be removed.

When I was trafficked, I was not afraid all the time, but when I was, it was overwhelming horror. For example, I recall a time when I overheard my trafficker speaking to one of the girls on the phone whom he sent out after a 13-plus hour shift to a so-called after party. I could hear her in the background saying my trafficker’s name. She was crying, sobbing, and begging for him to send somebody to come to get her out of there.

There were approximately eight to nine men in that room. They were taking pictures. They were recording, and they were using her in the most violent of ways. They gang raped her, and she called him, “My boyfriend, my trafficker”. You see, she was no longer afraid of my trafficker anymore. She saw him as someone who could offer help, and who could keep her safe. It was lost on her that he was directly responsible for the unimaginable sexual violence she suffered at the hands of so many men that night.

She called him and asked, “Could you make them stop?” His answer was, “It will be over soon.” This woman didn't fear my trafficker, or her trafficker anymore. She feared the customers who were doing all of those brutalizing things to her.

This woman’s story, though, is not unique. I have a similar story of my own, and so do the many whom we serve today. This is why removing the requirement to prove reasonable fear from the definition of exploitation is so very important. The many girls I know who have gone to court have said that proving fear, as is currently required, would hinder their from coming forward.

In trauma bonding, we start to view the trafficker who facilitates violence as someone who is offering help, and this has been proven over and over again. When many of the girls I know see their trafficker in court, they feel love towards their trafficker, and all of their feelings of fear just go out the window because of trauma bonding.

Bill S-224 would support victims by reducing the burden they experience when testifying and trying to prove they feared their trafficker. The proposed amendment would eliminate the difficult requirement that the Criminal Code currently places on prosecutors to show that there was reasonable basis for the survivor to fear for her safety. This would account for situations, like mine, where my trafficker had manipulated me to see him as someone who offered safety and protection, rather than the one who facilitated brutal sexual violence against all those he trafficked, me included. This bill would support victims in coming forward in the court process and reduce barriers, which would allow more victims to feel safe to share their allegations over time.

Bill S-224 would allow us to assist people who are trafficked in licensed systems, whether for sex, labour, or organs. Based on my knowledge and experience in the sex industry, girls are being exploited from region to region, municipality to municipality, and in massage parlours and the like across the GTA. These women are forced to sell sexual services six to seven days a week.

Typically, there is one girl who monitors the phone and who speaks more English than any of the other girls. She is tasked with supervising the other girls who are also being trafficked there. They all live together in the same house. They go almost everywhere together, commuting together and eating together, as they have extremely limited other options.

This tactic can be related to debt bondage, an all too common method traffickers use to reduce one's ability to leave. The girls in these situations are being controlled, directed, and coerced by third party traffickers to engage in these brutally dangerous situations with men who purchase sex, while hiding behind the veneer of offering safety, security and a licensing system that keeps them bonded to their traffickers.

The proposed amendment would help people who are trafficked into Canada from another country, such as those who see their trafficker as someone helping them with language interpretation or helping provide their basic needs, like food and shelter. It will help people who are the most vulnerable in society who are being trafficked and were targeted due to their cognitive impairment, neurodivergence or other impairments that impact their ability to understand and process fear.

In summary, Bill S-224 would make trafficking in persons easier to prove as survivors would not have to prove their state of mind, which is inherently subjective. It would provide survivors with fewer barriers to seeking justice. It would remove the tool of manipulation from the trafficker's arsenal, meaning that the trafficker could not hide behind a carefully manufactured lie that he offers to the women that he exploits, even if he succeeds in convincing his victims of that lie. Very importantly, it's trauma-informed and it's “survivor first” legislation.

Canada's trafficking survivors deserve better than what we currently have, and Bill S-224 is that better.

Thank you for your time. I look forward to your questions.

[The Chair, Liberal, Randeep Sarai]

I'll make a couple of comments for the benefit of witnesses. Please wait until I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking. For interpretation for those on Zoom, you have the choice at the bottom of your screen of English, the floor or French. For those in the room you can use the earpiece and select the desired channel. For members in the room, if you wish to speak, please raise your hand. For those on Zoom, please use the “raise hand” function.

The clerk and I will do our best to accommodate you in the rightful order.

Welcome, everyone. We are studying Bill S-224, an Act to amend the Criminal Code, trafficking in persons.

For today's meeting we have with us, via video conference, Dawne Way, barrister, and Wendy Gee, executive director, A New Day Youth and Adult Services. In person, we have Casandra Diamond, founder and executive director, BridgeNorth Women’s Mentorship and Advocacy Services.

We will go to you, Ms. Diamond, for five minutes. I have a little cue cards, so could you just pay attention when you are about 30 seconds away and then when your time is up, I won't have to interrupt you?

Perfect, over to you, Ms. Diamond.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 72 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order adopted in the House on March 22, 2023, the committee is meeting in public to continue its study of Bill S-224, an act to amend the Criminal Code, trafficking in persons.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23. Members are attending in person and remotely using the Zoom application.

Before I go into that, I believe I have consent from everyone, even though the bells are ringing, that we'll go until maybe 10 minutes before the vote. That way we'll get all of the witnesses to speak for their five-minute time and then we'll do the round of questions after the vote, if that's okay.

Is that okay? Good.

Yes, Mr. Fortin.

[The Vice-Chair, Conservative, Rob Moore]

Is there any discussion on that?

We are scheduled to hear Bill S-224 on Monday, and then we can do clause-by-clause on Wednesday.

Is there any issue with that? Is there any discussion?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

With respect to Bill S-224, we have witnesses next Monday. My suggestion would be that we do clause-by-clause on Wednesday.

In the interim, can we have the deadline for the submission of amendments at midday on Tuesday? Is it too tight...or Monday at 5:30?

[Sandra Ka Hon Chu]

Thank you.

As we noted in our joint submission, I would like to reject the bill in its entirety. In 2012 there was a subjective requirement with regard to human trafficking. That was changed to this reasonable person standard because of the notion that it was too hard to convict if you required complainants' testimony.

I can't emphasize this enough: You do not require complainants' testimony under this current version of the law. Reject Bill S-224 in its entirety. You need to support, as Elene said, non-carceral forms of safety. People do not require more policing. We put hundreds of millions of dollars into human trafficking initiatives, and we have allowed more police and prosecutors to flourish in this anti-human trafficking world, but that hasn't translated into more safety. We care about the safety of migrant workers and people who are experiencing exploitation and abuse, but you need to support them so they can obtain decent housing, access to income supports, access to child care, access to housing—all the things that, as I'm sure the other witnesses will agree, are helpful in terms of supporting people.

I also want to provide my time to Elene to share more of the experiences of Butterfly, their first-hand experiences of policing in the context of human trafficking.

[Dr. Janine Benedet]

I'll just say that while I appreciate very much the work that Ms. Wood is doing, I certainly don't agree with her analysis that 80% to 90% of the sex trade involves people who are not exploited. Whether a third party is involved or not, there's still a considerable amount of exploitation that typically pushes people into prostitution. That's the reason we have such an overrepresentation of indigenous women and girls in the sex trade.

In direct answer to your question, which is, “What else can we do?”, here I would encourage the committee to look at some of the initiatives that have been brought forward by member states in Europe. In particular, the Organization for Security and Co-operation in Europe, the OSCE, has a bureau to combat the trafficking of persons. It does a lot of really excellent monitoring. I would say that of all the member states, France is the country that by far has gone the furthest with this. It's really about bringing our domestic laws into line with our international obligations. We have an international obligation to punish human trafficking, and we have a definition internationally that speaks about the exploitation of a condition of vulnerability.

My worry with Bill S-224—it's an improvement, certainly—is that still we've just moved the focus on coercion, physical force, fear and threats into the definition of exploitation. We got rid of the reasonableness requirement—that's a step in the right direction—but the question will be, well, how do the courts interpret “any other similar act”? Are they going to recognize threats to report you for welfare fraud? Are they going to recognize threats to disclose pornographic photographs to your family members? Are those going to be seen as forms of coercion? Are they going to recognize that kind of emotional manipulation? We had a notorious trafficker in Vancouver who bought a small dog. If the girls were good, they got to take the dog for walks. If they were bad, he would abuse or threaten to abuse the dog.

These are all very effective techniques for keeping women in line. We just have to make sure we're not narrowing the definition in a way that's artificial. To me, the way to do that is to look to our international commitments.

[Dr. Janine Benedet]

Just to be clear, as I said in the beginning, this applies only where there's a third party involved. Prostitution, the commercial sex trade, can be very exploitative even without a third party involved. Many of the circumstances that drive people into prostitution are hallmarks of exploitation, but what we have here is a situation in which you have to prove that the individual knowingly and intentionally did one of a number of listed acts that caused another person to enter into, or to remain in, the sex trade. There's already a considerable amount of actus reus or mens rea before we even get to the question of whether the circumstances of those acts are exploitative.

The proposed definition in Bill S-224 says it is a situation in which you cause that person “to provide or offer to provide labour or a service”, and you do so with “the use or threatened use of force...another form of coercion...deception...fraud, the abuse of a position of trust, power or authority, or any other similar act.” I think it's important to understand what we're talking about here and what has to be proven. This is still not going to be an easy offence to prove, but it's one that will be simpler and more straightforward, and it involves less judgment of whether victims feared for their safety and indeed whether those fears were reasonable.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In that case, do you think that, if we remove the notion of threat to safety and broaden the definition of exploitation, Bill S‑224 will reinforce the perception that sex work is a form of exploitation?

[Sandra Ka Hon Chu]

Thank you, Elene.

My name is Sandra Ka Hon Chu. I'm co-executive director of the HIV Legal Network.

I have two main points to add about Bill S-224. First, the removal of the threat to safety requirement will capture cases where no exploitation exists. Proponents of this bill describe difficulties obtaining direct evidence from a potential complainant, but the test today is already an objective one and does not require a complainant's testimony. Removing this requirement merely gives more power to police and prosecutors to define, and often wrongly define, violence and exploitation for communities. In the case of sex work, violence and exploitation are assumed. For example, Professor Roots has documented how police pressure sex workers to take on the trafficking victim label despite their rejection of this label. Without the threat to safety requirement, determinations of coercion or exploitation are made through biased perspectives of sex work.

Second, as Elene described, the amendments risk capturing all third parties in sex work, including those who provide supportive services to sex workers. Butterfly and the HIV Legal Network have been consistently told by law enforcement that any third party involvement of sex workers suggests exploitation that warrants investigation. However, researchers have documented how police and prosecutors insist that pimping is a major problem, focusing their attention on young, poor, racialized men, and particularly Black men, despite sex workers' more nuanced accounts of third parties as protectors and intimate partners. As Elene mentioned, many sex workers also take on third party roles. Migrant, Asian and other racialized communities rely on family members and community for work support, but they are often swept up in anti-trafficking efforts.

Butterfly members have been charged with third party sex work offences for merely assisting with client communication, scheduling, advertising and screening. While the punishments for third party sex work conviction are already severe, third parties convicted of human trafficking are subject to a four-year mandatory minimum sentence, which could result in the removal of status and deportation for those who are not Canadian citizens.

If you truly wish to support people at risk of exploitation and abuse, you must listen to sex workers and reject Bill S-224 in its entirety; fully decriminalize sex work by removing all sex work-specific criminal offences; remove immigration regulations that prohibit migrants from working in sex work; stop surveillance, raids, detention and deportation of sex workers; support non-carceral forms of safety, such as decent work, health care and housing for all; and invest in grassroots communities so that they can support each other.

Thank you.