Bill C-452 (Historical)

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

This enactment amends the Criminal Code in order to provide consecutive sentences for offences related to trafficking in persons and create a presumption regarding the exploitation of one person by another.
It also adds the offence of trafficking in persons to the list of offences to which the forfeiture of proceeds of crime apply.

Criminal Code

[Gabriel Ste-Marie, Bloc, Joliette, QC]

Madam Speaker, before I begin my speech, I want to commend the hon. parliamentary secretary for giving so much of his speech in French. That takes effort and the results speak for themselves. I want to congratulate him on that.

This bill “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.” As my hon. colleague from Saint-Jean said a few sitting days ago, the Bloc Québécois supports the principle of this bill.

It is imperative that we discuss all of the tools that could help authorities combat this scourge, which is getting worse with population movement and the growing number of refugees. This bill also responds to the demands of several human trafficking survivors' groups and would make the definitions of exploitation and human trafficking more consistent with those set out in the Palermo protocol, which Canada signed at the beginning of the millennium.

The bill is very simple but very important. It removes a phrase from the Criminal Code so that an accusation under these provisions must be based on the fact that the victim believes that a refusal on their part would threaten their safety or the safety of someone known to them.

According to the International Justice and Human Rights Clinic at the faculty of law at the University of British Columbia, asking victims to demonstrate that they have reasonable grounds to fear for their safety may be an obstacle to obtaining convictions for human trafficking.

Elements of the offence of human trafficking are more difficult to prove than those of other similar offences. For example, the Immigration and Refugee Protection Act, which prohibits human trafficking, does not require the person involved to prove that they fear for their safety. This standard is no longer appropriate.

Let us look at the chronology of legislation against human trafficking. In 2002, Canada ratified the Palermo protocol, a “protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime”.

Article 3 clearly defines trafficking in persons as follows:

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

That is the definition.

That is how human trafficking came to be added to the Criminal Code in 2005. The Canadian definition, however, is different from the Palermo Protocol definition in that the issue of consent or the victim's sense of safety is taken into consideration. Thus, the victim must prove that they were in danger if they refused to be exploited.

In human trafficking cases, regardless of whether the victims were initially willing or felt safe, victims should never have to justify the circumstances under which they were lured into the situation in order to prove they were trafficked. Human trafficking is not limited to sexual exploitation, as we have already heard. Traffickers exploit their victims in many ways, including for forced labour. It is important to remember, for example, that even if victims did consent to come to Canada, they did not consent to the forced labour or sexual exploitation to which they may have been subjected afterwards, especially if they end up being dependent on someone because of isolation, lack of resources or language barriers.

Section 118 of the Immigration and Refugee Protection Act, passed in 2002, makes it a criminal offence to “organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion”. Although human trafficking and human smuggling are two different concepts, the act also prohibits human smuggling into Canada.

In 2005, Bill C-49 added three offences related to human trafficking to the Criminal Code, as well as a definition. The offences include trafficking in persons; receiving a financial or other material benefit from the commission or facilitation of trafficking in persons; withholding or destroying a person's identity documents, such as a passport, whether authentic or not, for the purpose of committing or facilitating trafficking in persons; and exploiting another person in the context of trafficking in persons offences.

In 2008-09, the first case involving a charge of human trafficking under the new law was ruled on in adult criminal court.

In fall 2008, a 20-year-old woman went to Peel Regional Police to report that a 22-year-old Ontario man named Vytautas Vilutis was using intimidation and threats to sexually exploit her. She said that she made $10,000 for him in just a few weeks through online Craigslist classified ads. She added that he took her phone calls, set up her “dates” and kept track of her appointments, so he knew how much money she owed him each morning. It was not until he threatened her for not leaving all the cash out for him one morning that she reported him to police. Vytautas Vilutis pleaded guilty in April 2009 to charges of human trafficking and receiving a material benefit from human trafficking.

He was convicted under both provisions and was the first person in Canada to be convicted for benefiting from human trafficking. In 2010, another section was added to the Criminal Code, setting out a mandatory minimum sentence for persons charged with trafficking of persons under 18. That was Bill C‑268.

In 2012, the Criminal Code was amended to allow the prosecution of Canadians and permanent residents for the offence of trafficking in persons committed outside Canada, and added factors that judges may consider when determining whether exploitation occurred. That was Bill C‑310.

In 2015, mandatory minimum sentences were imposed for the main trafficking in persons offence, receiving a material benefit from the proceeds of child trafficking, and withholding or destroying documents to facilitate child trafficking. Bill C‑452 was put forward by my political party.

In 2019, the Hon. Ralph Goodale, Minister of Public Safety and Emergency Preparedness, released the national strategy to combat human trafficking 2019‑24. With $75 million in funding over 6 years, this strategy followed the Palermo protocol. The national strategy to combat human trafficking 2019‑24 was adapted from the previous five-year plan.

It was adapted due to some deficiencies identified during policy assessment, namely that most of the resources were being allocated to the fight against sexual exploitation whereas forced labour is a growing issue. This is nothing new, but it is being increasingly recognized and discussed.

Bill S-224 is part of a long legislative quest to combat human trafficking, which is extremely important. In closing, I would like to paraphrase author Ralph Champavert and say that the stigma of human trafficking will disappear when the sun of human dignity rises in all hearts.

Human Trafficking

[Monique Pauzé, Bloc, Repentigny, QC]

Mr. Speaker, this week again I am presenting a petition calling on the Prime Minister to sign the order to bring into force Bill C-452 to crack down on pimps. Last week, I presented e-petitions. Today, I am presenting a paper petition signed by 649 petitioners. How many young girls have suffered from this government's complacency on this file? Again, we are calling on the Prime Minister to pick up his pen and sign the order. That is four times now that we have asked for that.

Justice

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

Mr. Speaker, since this government took office in 2015, it has been dragging its feet and refusing to crack down on pimps. Bill C-452, which would require pimps to serve consecutive prison sentences for their crimes, received royal assent three years ago. Prevention and intervention are not enough. Punitive measures and deterrents are needed to protect our young people, but no, it seems this government would rather protect their abusers.

After three years of dilly-dallying, will the Prime Minister finally decide to sign the order to bring Bill C-452 into force?

Criminal Code

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, I am not sure what point my colleague is trying to make. However, he talked about the legislative agenda to some degree, and one of the things I can talk about in that regard is that a former colleague of his, the NDP member Maria Mourani, introduced a bill over five years ago. That bill was passed in a previous Parliament and was to come into force. The Liberals said they were going to bring it into force. That was five years ago. It is finally being addressed in this particular bill. While most of the tools in her bill, Bill C-452, are coming in, the Liberals have removed consecutive sentencing from the bill. While to some degree that proves that the human trafficking angle is definitely a non-partisan thing, it is also very frustrating that the Liberals cannot get on board with it.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Speaker, I rise today to express my support for Bill C-75. I would like to use my time today to discuss the proposed changes to this bill that would affect the LGBTQ2 community, human trafficking and the victim surcharge.

As special adviser to the Prime Minister on LGBTQ2 issues, I am particularly proud of the work of our government in advancing the rights of LBGTQ2 Canadians and the work of the Standing Committee on Justice and Human Rights in making concrete, tangible legislative changes that would improve the lives of lesbian, gay, bisexual, transgender, queer and two-spirit Canadians.

Today, on the the International Transgender Day of Remembrance, when we pause to reflect on the lives of transgender people here in Canada and around the world that have been lost to murder, suicide, hatred and discrimination; the lives diminished due to overt transphobia and misogyny; and the daily discrimination faced by trans children, siblings, parents and their loved ones, I am proud, as the first openly gay MP elected from Alberta to the House, that Parliament passed Bill C-16 to protect trans persons in the Criminal Code and the Canadian Human Rights Act. I am particularly proud that our government led this charge.

I am also proud of the work of our government in passing legislation to enable Canadians who have criminal records for same-sex consensual activity to have these records expunged, and I acknowledge the leadership of the Minister of Public Safety and Emergency Preparedness on this file.

I would also like to thank the Minister of Justice and Attorney General of Canada for including in Bill C-75 the removal of section 159, which discriminates against young gay or bisexual men. That would now be removed from the Criminal Code with the passing of Bill C-75.

I also applaud the work of the committee and the ministry in responding to expert testimony for the repeal of the bawdy house and vagrancy provisions that were used by police forces to arrest gay men who frequented gay clubs and bathhouses. Men arrested in these police raids, many now in their 60s, 70s and 80s, still face criminal records as a result of these charges. We heard the testimony, and the committee and the ministry responded. Should Bill C-75 pass, these odious provisions in the Criminal Code would be removed and amends could thus be made.

Parts of the bill pertain to human trafficking and the victim surcharge.

I think it is very important to clearly state that human trafficking cannot be tolerated and that our government sees it as a very serious concern. That is why we continue to work closely with the provinces, territories, law enforcement agencies, victim services groups, organizations representing indigenous peoples, and other community groups, as well as our international partners. We are working together to combat all forms of human trafficking in Canada and abroad, to provide victims with special protection and support, to bring the perpetrators of these crimes to justice and to ensure that their punishment reflects the severity of the crime.

Human trafficking is a very difficult crime to detect because of its clandestine nature and victims' reluctance to report their situations out of fear of their traffickers. We heard testimony about that when the Standing Committee on Justice and Human Rights travelled across the country to listen to victims of human trafficking and to see how we could change the Criminal Code to provide more opportunities for police to work with those organizations that work with victims.

The legislative changes within Bill C-75 would provide police and prosecutors with additional tools for investigation and prosecution. These measures would bring the perpetrators of human trafficking to justice so they can answer for the severity of their actions.

The amendments proposed in Bill C-38 would bring into force amendments that have already been passed by Parliament, but were not promulgated in the former parliamentary initiative, Bill C-452. They would also strengthen the legislation to combat all forms of human trafficking, whether through sexual exploitation or forced labour, while respecting the rights and freedoms guaranteed in our Constitution.

We heard of heinous crimes being committed not just against those who are unknown to the perpetrators, but also against family members. Family trafficking exists in this country, and we must make sure that police forces are armed with the tools they need to be able to put an end to such heinous crimes.

More specifically, the proposed changes will make it easier to prosecute human trafficking offences by introducing a presumption that will enable the Crown to prove that the accused exercised control, direction or influence over the victim's movements by establishing that the accused lived with or was habitually in the company of the victim.

In addition, these changes would add human trafficking to the list of offences to which the provisions imposing a reverse onus for forfeiture of proceeds of crime apply.

I would now like to discuss the changes that would affect the victim surcharge. Bill C-75 proposes to restore judicial discretion to waive the victim surcharge by guiding judges to waive the victim surcharge only when the offender is truly unable to pay. For certain offences against the administration of justice, where the total amount would be disproportionate in certain circumstances, the bill would also provide for limited judicial discretion to not impose a federal victim surcharge amount per offence.

The federal victim surcharge, which is set out in the Criminal Code, is imposed on a sentencing basis, and revenue is collected and used by the province or territory where the criminal act was committed to assist in the sentencing process for funding victims services. Bill C-75 would maintain that the federal victim surcharge must be imposed ex officio and must apply cumulatively to each offence. However, to address concerns about the negative impact of current federal victim surcharge provisions on marginalized offenders, the bill would provide limited judicial discretion regarding the mandatory and cumulative imposition of the surcharge in certain circumstances.

Bill C-75 would provide clear direction as to what would constitute undue hardship. These guidelines would ensure that the mandatory exemption, or waiver, would be applied consistently and only to offenders who were truly unable to pay the surcharge. In addition, the bill would state that undue hardship would refer to the financial ability to pay and was not simply caused by harm associated with incarceration. We are trying to avoid the criminalization and over-criminalization of people simply because of their inability to pay a federal victim surcharge.

For certain offences against the justice administration, in the event that the cumulative surcharge was disproportionate to the circumstances, Bill C-75 would contain provisions allowing an exception to the victim fine surcharge ratio. This exception would apply to two types of offences against the administration of justice: failure to appear in court; and breach of conditions of bail by a peace officer or court order, and only when said breach did not cause any moral, bodily or financial damage to the victim.

Studies show that marginalized offenders, especially indigenous offenders and offenders with mental health and addiction issues, are more likely to be found guilty of offences against the administration of justice.

Under the existing victim surcharge provisions, it is unlikely that much of the money collected in the federal victim surcharges that are paid out to the provinces and territories comes from groups of offenders who are unable to pay the victim surcharge or who are only able to pay part of the surcharge because of their personal situation or because of their multiple offences against the administration of justice.

In addition, offenders who suffer undue hardship as a result of the mandatory victim surcharge are, by the current application of the provisions, hampered in their ability to regain financial stability. This places them in a situation where the surcharge does not allow them to successfully reintegrate into society after serving their sentences or paying their outstanding fines, and they risk reoffending. These types of situations do not help survivors or victims of crime or the provision of services to help them. This proposed exception would be consistent with the principles of fairness and equity.

I am confident that by maintaining a higher mandatory surcharge, this proposed legislation would support the objective of the victim surcharge to provide a source of funding for provincial and territorial victim services while strengthening offender accountability regarding victims and society in general. At the same time, the bill would be in keeping with the principles of proportionality, fairness and respect for the Canadian Charter of Rights and Freedoms.

Not having gone through law school, I can say that it is an honour to serve on this committee and to be part of making Bill C-75 appear in the House today.

Human Trafficking

[Monique Pauzé, Bloc, Repentigny, QC]

Mr. Speaker, I have the honour to table petition e-1673 on behalf of the Association féminine d'éducation et d'action sociale, better known as Afeas. The petition was signed by 639 people, and more signatures will soon be arriving on paper. This petition calls on the government to sign the order to bring into force Bill C-452, which seeks to combat human trafficking and sexual exploitation.

We are losing precious time. The bill was passed unanimously and has already received royal assent. Other petitions on this subject have been circulated over the past three and a half years, and the Quebec National Assembly passed a unanimous motion in this regard.

How long will it take and how many young girls will have to become victims before the Prime Minister signs the petition?

The purpose of the petition is to get the government to sign the order to protect teenage girls from criminal prostitution rings.

Corrections and Conditional Release Act

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Mr. Speaker, I rise in the House today to speak to Bill C-83, an act to amend the Corrections and Conditional Release Act and another act.

I do so because I have a duty to give a voice to the victims of crime and their loved ones here in the House because, ever since the Liberals came to power in 2015, the voice of the people has been growing weaker and weaker and their rights are being increasingly trampled.

The Canadian justice system is not perfect. A lot of work remains to be done to make it better, fair and equitable, and to ensure that it upholds the rights of victims of crime and their families. There is still a lot of work to do to make victims' rights equivalent to the rights of criminals.

Fortunately, the previous Conservative government took an honest look at the imbalances that persisted for many long years.

The excellent work done by former prime minister Stephen Harper for the advancement and respect of the rights of victims of crime resulted in the creation of the position of federal ombudsman for victims of crime, an end to prisoners serving only one-sixth of their sentence, the drafting of Bill C-452 to support victims of procuring, minimum penalties for certain sexual offences, a financial compensation program for parents whose children are missing or killed as a result of a criminal offence, a review of the faint hope clause bill and, finally, the victim surcharge bill.

Since 2015, the government across the aisle has not passed a single piece of legislation to support victims. Worse still, it has not introduced a single bill to improve the lives of victims of crime.

On top of that, even though the House unanimously voted in favour of Bill C-452 in June 2015, the government has backtracked and still refuses to sign the order in council to implement the act, which would protect young girls from sexual exploitation. It claims that the bill is too harsh on pimps.

The Liberals also want to eliminate the mandatory minimums in some acts. Further evidence that the Liberals would much rather support criminals than victims is that they took nearly a year to appoint a new federal ombudsman for victims of crime, but the new federal ombudsman for offenders was appointed in less than a month. Furthermore, they voted against my private member's bill, Bill C-343, which would have made the position of ombudsman for victims of crime the same level of authority as the corrections one.

Now, with Bill C-83, the government continues on its path, seeking to punish criminals as little as possible, even the most dangerous, aggressive criminals who pose serious risks to the safety of other offenders and corrections officers. The government wants to stop placing inmates in segregation, commonly known as the hole.

I must say that, these days, being sent to the hole is not the same thing as before. I come from a family that worked in the prison system for a long time, so I know what I am talking about. My father was a prison warden and my mother was a prison guard.

The Minister of Public Safety wants to replace the administrative segregation cells reserved for the most dangerous and problematic offenders with structured intervention units, which would separate these offenders from the rest of the prison population, when necessary, but continue to give them access to rehabilitation programs, interventions and mental health care.

We all agree that mental health issues must be treated. However, we also all agree that, when inmates are in solitary confinement, it is because they are endangering the lives of others. Because of that, I will have to vote against this bill. For me, victims of crime come well before criminals themselves.

[Maria Mourani]

Certainly.

As to the recommendations, let me repeat what victims and the police told me. Victims are waiting for Bill C-452 to come into force, which received royal assent in 2015. For three years, the government has refused to bring this law into force.

Having been a minister, Mr. Clement, you know that it takes more than a day for a ministerial order to be issued to bring a law into force. As you also know, the House voted unanimously twice, at second reading and at third reading of this bill. Even Mr. Trudeau, who is now the prime minister, voted for the bill.

The current Minister of Justice says Bill C-36 would create problems for consecutive sentences. I would like to take the opportunity to congratulate the previous government for passing this major piece of legislation on prostitution. You will recall that Bill C-36 received royal assent on November 6, 2014, while Bill C-245 received royal assent on June 18, 2015, nearly a year later.

Everyone voted for it. Why does Mr. Trudeau seem to be changing his mind now that he is prime minister? Victims are very frustrated by this, especially families with children who have run away or who are in prostitution networks, and who are told by police officers that they cannot take action without testimony or a complaint, even in the case of girls who are minors. The government must declare this act to be in force immediately without waiting for Bill C-75 to be passed or receive royal assent.

[Maria Mourani]

Very well. I will conclude.

My last point is about the need for sentences to be made stricter by introducing consecutive sentences. That is the objective of the amendments to the Criminal Code contained in Bill C-452. However, those amendments must be given effect by order in council, and the government is the entity that must do that. Unfortunately, I don't have enough time left to explain the saga that followed, but I am sure that in answering your questions, I will be able to set out my arguments.

Thank you very much.

[Maria Mourani]

Thank you Mr. Chair.

Good evening, everyone.

It's always a great pleasure to be with you. I thank the committee for its invitation. I also want to greet my former colleague Joy Smith, with whom I worked extensively on this issue when I was an MP.

As you can probably imagine, I will not discuss all of the provisions contained in Bill C-75, which is quite long. I will simply address the provisions that concern my bill on human trafficking, which is Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons). The bill was tabled for first reading on October 2012, and passed unanimously at second and third readings, as you know. It then passed all of the stages in the Senate and received Royal Assent on June 18, 2015.

I will focus more specifically on clause 389 of Bill C-75, since that clause establishes the coming into force of clauses 1, 2 and 4 of Bill C-452, and stipulates that clause 3 must be the subject of an order. Its coming into force is thus subject to an order, which is to say that this depends on the government's will to do so; the government clearly expressed its opposition to this clause at the time.

I know that several members around this table are new and were not members of Parliament during the previous Parliament. So I want to provide some explanation about how this bill came into being.

The bill was the result of a consultation that lasted several years. Many groups were consulted, including women's groups, victims' aid groups, victims themselves, and police officers—several police forces were consulted. The bill was also reviewed by criminal law jurists in Quebec. And so it was studied and studied again, and developed into the bill you see now.

A criminological analysis was also done of the phenomenon of trafficking in persons in Canada, which led us to understand that there were gaps in our Criminal Code that need to be filled in. Our observations led us to the following conclusions: first, trafficking in persons is very, very lucrative. People who pursue this criminal activity make a lot of money. The phenomenon is not unique to Canada; it is global. In fact, several experts believe that the proceeds from this criminal activity are second only to drug trafficking, and that it is even more lucrative than arms dealing. It's appalling!

Not only is human trafficking lucrative, it causes incredible suffering for the victims. I can tell you that in the course of my professional work, since the end of the 90s, I have met many, many victims. What they have to say, the suffering of these victims, is unimaginable, and defies description. It can sometimes even make you wonder if it is real. You react by thinking that this can't be, how can such things happen here, in Canada?

The most common form of trafficking in persons in Canada is internal trafficking. So this directly involves our girls, girls who are moved all over Canada to be subjected to the the most prevalent form of trafficking in the country: sexual exploitation. This is what I will focus on. There is also, of course, some trafficking involving forced labour. To my knowledge, organ trafficking is not happening in Canada, but it's possible that it is. It may simply be that we haven't caught the perpetrators yet; I don't know.

Trafficking in persons for the purpose of sexual exploitation is not only the most prevalent form of trafficking, but it generates billions of dollars for the sex industry. For instance, it has been determined that 11% of men in Canada have purchased the services of prostitutes. Comparison can be comforting, as the saying goes: in the Netherlands, that figure is 60%. In Germany it is 66%, and in Cambodia, 65%. In Sweden, where the approach is completely different, it drops to 8.5%. Don't forget that when prostitution is legalized, trafficking increases, as does consumption.

Human trafficking in Canada and internationally mostly involves women and children. The average age of entry into prostitution in Canada is about 14. I have met victims who became prostitutes at 13. Others were forced into prostitution at 10 or 11. The average however is 14, 15, and 16. And yet we aren't in Thailand, we are in Canada.

For a five-year period, from 2007 to 2013, 40% of victims identified as such in Canada were minors. This confirms the global trend, where an increase in the statistics involving minors has been noted. The victims are of course mostly girls rather than boys.

The cities that are reputed to be trafficking hubs are Montreal, Calgary, Vancouver and Toronto. Canada is recognized as a transit country, a country where recruitment takes place, and a sex tourism destination. These observations were made by the RCMP and the American State Department. What is very compelling is that on average, a perpetrator who exploits a victim sexually can make between $168,000 to $336,000 per year from one victim. These are RCMP figures, once again. As I said, trafficking is very lucrative.

Bill C-452 had two objectives: to make trafficking less lucrative, or not lucrative at all, and to protect the victims. Our consultation made us realize that trafficking is a crime that needs a victim; we need the testimony of a victim. However, as you know, the victims are either terrorized or in love with and under the spell of their pimps. They suffer from PTSD, Stockholm syndrome and all sorts of psychological ailments. But without victims, it is extremely difficult to conduct investigations.

We also saw that when we managed to get investigations done that led to convictions, the penalties did not fit the crimes. The victims said that quite often the traffickers were charged with three or four offences and were sentenced to the full extent of the law, as that is the system we had. The victims did not understand. A pimp was charged with trafficking, pimping, aggravated assault, attempted murder, and in the end, the offender was sentenced for the most serious offence, but this was a light sentence as compared to the gravity of all of the crimes committed. Consequently the victims felt that they were subjected to another injustice at the hands of the system. They wound up feeling that there was no point denouncing the trafficker and having to go through all of that judicial process.

So basically, we had to find a way to remedy all of this. I felt—and this was supported by my various partners—that if we could make trafficking less lucrative it would be less attractive, and involve a lot of risks for the traffickers. This would create a balance. First, we had to do something that still does not exist in our system, and that is an aberration, and that is to confiscate the proceeds of criminality. This is done in the case of big drug traffickers, but not for human trafficking. So we added that.

Someone who gets caught and is convicted must demonstrate that all of his assets are not derived from trafficking and the sexual exploitation of girls. On the one hand, the state may take away everything he owns. In addition, given the reversal of the burden of proof, investigations can be held without the need for the testimony of a victim. This is due to the victim protection process. They are not obliged to testify; the police officers are the ones who must gather the necessary evidence to charge a trafficker.

[Tony Paisana]

We made submissions in 2014, regarding the first incarnation of this, which was Bill C-452. You will see that some parts of that brief are reproduced in our brief here. The rebuttable presumption is vulnerable under paragraph 11(d) and section 7 of the charter, as a violation of the right to be presumed innocent.

We do not think it will be saved under section 1, because there does not exist enough evidence to show that the section 1 test will be fulfilled. If you are habitually in the company of someone who is exploited, it does not necessarily follow that you are responsible for the exploitation. In fact, you may imperil various people who are in the company of people who are exploited but who are not themselves exploited but who happen to be in the area.

We provided an example in our original brief about a worker who was being paid but whose co-worker is not being paid and is being exploited. That person could be at risk of a human trafficking conviction because of this rebuttable presumption.

[Kara Gillies, Canadian Alliance for Sex Work Law Reform]

Thank you so much.

Good afternoon and thank you for the opportunity to address you today.

The Canadian Alliance for Sex Work Law Reform is a coalition of 28 sex worker and allied organizations from across the country advocating for law reform that advances the rights and safety of people who sell or trade sex. Our member groups have expertise regarding the impact of criminal law on the lives and well-being of sex workers, so it's on those grounds that we submit our response to Bill C-75.

I'm going to be really frank and say that we are very disappointed and frustrated that the Criminal Code provisions targeting sex workers and their personal and work relations are not slated for repeal or meaningfully addressed in Bill C-75. The Liberal and NDP parties of Canada voiced staunch opposition to the Protection of Communities and Exploited Persons Act, or PCEPA, when it was introduced. In 2015, the justice minister declared that she was “definitely...committed to reviewing the prostitution laws”, yet this review has stalled.

This isn't just a matter of principle or a matter of promises unkept. Each day that passes, sex workers' rights, safety and dignity are violated through the individual and collective impact of laws prohibiting the communication for, purchase of, material benefit from, procuring of and advertising of commercial sexual services. We are past the time for review, and we need action.

We believe that excluding the repeal of PCEPA from Bill C-75 was a gross missed opportunity, given the overall alignment of many the bill's principles and elements with those of sex work law reform.

First, Bill C-75 rightly repeals several Criminal Code provisions ruled unconstitutional by Canadian courts. In 2013, the Supreme Court found in Bedford that several criminal prostitution laws caused harms that violated sex workers' charter right to security of the person. The subsequent Criminal Code provisions enacted by PCEPA replicate these harms, and their constitutionality is similarly impugned.

Second, Bill C-75 rightly repeals the offences of anal intercourse and abortion that targeted sexual or reproductive activities and autonomy and that disproportionately impacted LGBTQ2S communities and women respectively. Prohibitions on sex work activities similarly undermine the rights to liberty, autonomy and security of the person and disproportionately impact women, indigenous and migrant communities, and other marginalized groups.

Third, Bill C-75 correctly proposes to attend to the discriminatory treatment and overrepresentation of indigenous and marginalized peoples in the criminal justice system. Sex workers and/or personal and labour relations reflect the diversity and inequality of social locations in Canadian society. For many, sex work prohibitions represent the criminalization of their poverty and perpetuate the over-policing and over-incarceration of indigenous and black peoples.

Sex work laws continue to be employed and enforced in a racist and colonial manner. Indigenous women are over-policed and under-protected. Asian migrant workers are targeted for investigation and deportation, and young black men who happen to be boyfriends or associates of sex work workers are labelled and prosecuted as pimps.

We recognize that most of the PCEPA laws have been absented from Bill C-75 and thus cannot be repealed or otherwise altered through committee amendments. We note, however, that clause 111 reclassifies the material benefit offence as a hybrid offence and that clause 112 amends the sentencing provisions of the advertising offence. Because these two offences are addressed within the bill, if it's a procedural possibility, we strongly urge amending the bill to repeal these Criminal Code provisions in their entirety. By criminalizing the act of materially benefiting from another party's sex work, section 286.2 restricts sex workers' capacity to engage in supportive work relationships that enhance our safety and improve our work conditions. In fact, this provision reproduces the harms of the prior “living on the avails” offence that was struck down by Bedford for violating our section 7 charter rights.

Any proposition that the listed exceptions to the offence satisfy Bedford are false. All but one simply codifies jurisprudence that predates the Supreme Court's decision. Then there are exceptions to the exceptions, which further repress sex workers' autonomy and security. For example, paragraph 286.2(5)(e) prohibits a liability exception in the context of a commercial enterprise. This captures all escort agencies, massage parlours and any other sex work business that creates safe, structured indoor work environments.

While we appreciate that the exceptions may allow a worker to hire, say, a bodyguard or a receptionist, we are mindful that only a tiny number of highly privileged workers have the resources to do so. Instead, many of us seek out parlours and escort agencies because they offer services such as screening, secure venues and advertising without the upfront costs and overhead of independent work.

It is often the most marginalized and under-resourced workers, such as indigenous, poor, or migrant workers, who benefit from working for someone else. However, these same laws that prevent sex workers from ensuring our safety and rights are upheld, because we work for businesses, do so, ironically, because they effectively preclude us from accessing basic labour, occupational health and safety, or human rights protection. To make it worse, material benefits arising from the context of a commercial enterprise is considered an aggregating factor upon sentencing.

As with the former “living on the avails” provision, the material benefit sanction imposes an evidentiary presumption on anyone who lives with or is in the habitual company of a sex worker. In addition to reinforcing the false assumption that people, particularly women, who sell or trade sex can't be legitimate objects of affection, the threat of presumed criminality disrupts the security and autonomy of our personal relationships.

I will make a final comment on the material benefits offence. Although when we discuss it we typically describe it as benefiting from another party's sex work, the provision itself does not specify a third party benefit. Under the letter of the law, sex workers are ourselves captured in the material benefits provision. We are only granted immunity from prosecution via section 286.5. This is a clear illustration that PCEPA does indeed continue to construct those of us who sell or trade sex as criminal.

We therefore recommend that clause 111 of Bill C-75 be amended to call for the repeal of the material benefits provision, as a first step towards a more comprehensive sex work law reform.

Next I'm going to turn to Criminal Code section 286.4, which prohibits advertising paid sexual services. As with the prohibitions on communicating and purchasing, this provision undermines the safety benefits that sex workers derive from openly communicating terms and conditions with their clients, and establishing boundaries in advance of in-person contact.

Prohibiting advertising creates significant barriers to working indoors, which the evidentiary record in Bedford demonstrates is much safer than working on the street. Since the enactment of the advertising provision, many websites and newspapers will no longer publicize sex worker services. Those that do have often discontinued their virtual lounges that allowed workers to share safety and other valuable information with each other.

With these points in mind, we recommend that clause 112 of the bill be amended to call for the repeal of the Criminal Code section 286.4.

Continuing with the Criminal Code provisions addressed in the bill, we want to reiterate our opposition to Bill C-38 and Bill C-452, which is now incorporated into clause 389 of Bill C-75.

Bill C-452 introduced an evidentiary presumption that living with or being in the habitual company of an alleged trafficking victim is proof that the accused exercised control, direction or influence over the alleged victim's movements for the purposes of exploitation. Given the ongoing conflation of third party involvement with sex work and trafficking, we are concerned that, as with the reverse onus provision for material benefit, this presumption will further alienate sex workers from police and social services, as we continue to actively avoid implicating our colleagues and loved ones as traffickers.

We do support the bill's removal of consecutive mandatory minimum sentences for trafficking offences. However, like others who have responded to Bill C-75, we are perplexed as to why mandatory minimums have not been repealed across the board.

Other Criminal Code offences that are insufficiently addressed in the bill are the bawdy house, indecent acts and vagrancy sections. These have traditionally been used to condemn individuals and communities based on their sexual activities, relationships and identities, including people who sell or trade sex. The Prime Minister's 2017 apology to LGBTQ2S people should be buttressed by the repeal of these sanctions.

The alliance doesn't have a current position on the bill's Criminal Code amendments regarding intimate partner violence. However, we will note that intimate partner violence impacts our communities, not simply because sex-working women, like other women, experience intimate partner violence, but also because such instances of violence are often mislabelled and prosecuted as materially benefiting, procuring and trafficking. If criminal sanctions related to intimate partner violence were used instead of third party sex worker trafficking laws, where appropriate, we might be able to express support. However, we're concerned that they would be used as add-ons.

Additionally, we have potential concerns about increased sentences and reverse onus bail provisions, because we know only too well the effect of heightened criminalization and its disproportionate impact on the most marginalized among us. However, we have no specific recommendations on these points.

Finally, on a general note, we are concerned that elements of Bill C-75 will impede access to justice and fair treatment for people in and associated with the sex trade who come in conflict with the law for any reason, and who are further marginalized by their social or structural locations.

Increasing the maximum sentence for summary convictions risks the continued over-incarceration of marginalized peoples, both through the increased maximum sentence itself and by restricting access to agent representations.

Permitting the written admission of routine police evidence risks undermining trial fairness by complicating defence access to cross-examinations that can expose cases of police error, impropriety or actual abuse, and which are especially vital to protect the rights of indigenous and black defendants.

Those are our thoughts and concerns. Thank you for taking the time to hear them.

[Matthew Taylor, Acting Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

I'll take that question. Thank you.

As the charter statement outlines, the combination of the mandatory consecutive sentencing that exists for human trafficking offences and the requirement of the former private member's bill, Bill C-452, to impose mandatory consecutive sentencing is where the charter concern arises. It's the result of the stacking of consecutive sentences, which are also mandatory sentences, that raises the charter concerns.

I think I answered your question, but you mentioned something about presumption as well.

[Murray Rankin, NDP, Victoria, BC]

No, that's fine. Thank you. I appreciate that it's not easy to answer questions quickly.

I'd like to ask you about clause 389 of this bill, which deals with human trafficking. Bill C-75 puts in force provisions of Maria Mourani's private member's bill, Bill C-452, which got royal assent in June 2015 but was never put into force by order of the federal government. Some of that bill is back before us today.

In your opinion, does the combination of consecutive sentences, with the presumption of exploitation, violate any charter rights?

[Rhéal Fortin, Québec debout, Rivière-du-Nord, QC]

As far as I'm concerned, there is no problem.

According to what I understood, the government detected a potential problem following advice received from the Canadian Bar Association. The Barreau du Québec had provided positive advice according to which all of Bill C-452 could be brought into effect. For its part, the Canadian Bar Association said that there was no problem except for clause 3 regarding consecutive sentences. It said that this clause could run counter to the Charter and be considered as... I don't remember the term but it doesn't matter. The Canadian Bar Association thought there could be a problem with the Charter.

That is the pretext or the reason invoked by the government to justify its decision to withdraw clause 3 to be able to study it in committee and bring it in later after making sure that it was properly worded. As for clauses 1, 2 and 4, it said that they could come into effect immediately. That is what the government said in February 2017.

All I am saying is that if we agree that clauses 1, 2 and 4 do not pose a problem, I don't understand why they have not been brought into effect. At a minimum, this would reverse the burden of proof, the presumption. This seems important to fight against pimping and the prostitution of young girls.

My colleagues know this as well as I do, and people spoke to us about this in the House on many occasions; there were press conferences and all of that. We agree that this is urgent. In 2011, we were saying this was urgent. We are now in 2018. We recognize that this is urgent since we keep adopting bills that say the same thing. Let's stop saying the same thing and bring the law into effect.

I don't claim to be an expert on constitutional law, but I don't think there is any problem regarding the consecutive sentences. If the government thinks there is one, let's work on that, but let's do it now because this is urgent.

Every day we wait counts. Last year, some 900 young girls had prostitution-related issues. We all have young girls in our families, whether they are our daughters, granddaughters or nieces. Would we like to see them caught up in this type of situation? We mustn't think that we are immune. We are not. That is why it is urgent that we act.