Justice Committee on March 15th, 2012

[Prof. Amir Attaran]

It's not a problem. We have many such extraterritorial offences.

Of course, Rosalind mentioned the child sex laws, which are extraterritorial, but there's also torture, hijacking, certain terroristic offences, attacks on internationally protected persons, and offences involving the nuclear trade—plutonium and that kind of thing. In all of those cases you've at least got some or even maybe total invocation of universal jurisdiction, which hypothetically can lead to the sort of conflict with other countries wishing to prosecute that you raise.

That being said, in reality, it is not a frequent issue. We have enough experience with that type of situation to know how to resolve this conflict.

[Françoise Boivin, NDP, Gatineau, QC]

Therefore, it would not allow somebody to... so that, this case would not go on forever, because these two countries would be competing with each other to know which one will lay charges against this offender.

[Prof. Amir Attaran]

I think, this is academic. In reality,we do not have this problem.

[Rosalind Prober]

I want to add that in general there are only so many dollars to go around, there are only so many prosecutors, etc. The general principle is that wherever the person was caught, that country—say, for example, a Canadian in Bangkok, Thailand....

And we have one in Bangkok, Thailand, haven't we? You all know of Christopher Paul Neil, Mr. Swirly, who thought he was going to outfox the German police? He was caught in Bangkok.

He didn't make it home to Canada. He would have tried, but he wouldn't make it. So they tried him there. Had they said they were shipping him off to Canada, Canada would have picked it up.

But generally, the principle in child sex tourism is that if they're caught, for example, in Cuba or the Dominican Republic, and if they want to try them for crimes against their citizens, they have the right to do it. If they don't, then they ship them home. It's very simple.

[Françoise Boivin, NDP, Gatineau, QC]

Excellent. That's a great answer. Thank you. That's what I wanted to hear.

Am I already done?

[The Chair, Conservative, Dave MacKenzie]

Yes.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

I would like to personally thank Joy Smith for her work on this. Like my colleague, Mr. Seeback, I was very proud to co-second this bill. I think it's a remarkable thing that in the 21st century we are still having to talk about an issue like this and call it what it is: slavery. We have a different idea of ourselves from that, so it's great to get this out in the open.

If I can be permitted a moment of levity, I would like to thank Professor Attaran. I think that of all the academics I've had the opportunity to hear at this committee, you're the first one who has said “that's only a theoretical problem, so let's not worry about it”. Every other academic I've heard has been happy to go on at great length about theoretical problems, so I appreciate your candour.

I would like to pick up on the question Madame Boivin raised. Before I do, I'll recognize for the record that I want everyone to know that parliamentarians have been very supportive of your efforts, Ms. Smith, including the former Bill C-268 and motion M-153, which was unanimously adopted by the House of Commons in February 2007, calling on the government to adopt a comprehensive strategy to combat trafficking in persons worldwide.

Dealing with the sovereignty of foreign countries and also with the issue of individuals who are charged with offences, Madame Boivin asked what would happen if two or more countries wanted to prosecute the same person.

I think it's eminently sensible that the country in which the individual happens to be is going to do the prosecution. But from a legal perspective, is there anything to prevent a second country from undertaking a prosecution as well?

I'll put it in the most commonly presented way. For example, if someone were prosecuted in the United States for an offence relating to trafficking and, let's say, was acquitted and came back to Canada, would the defence of autrefois acquit apply, or would Canada be able to prosecute for those facts?

Or let's say that someone was convicted overseas and then came back to Canada. Would that conviction legally prevent a prosecution? I imagine there would always be discretion in our prosecutors, and maybe it comes down to that. But I'm also imagining that the Supreme Court would have something to say from a charter point of view, if there were a duplicate prosecution.

These are legal kinds of questions; you'll have to forgive me for that. I'll start with Ms. Smith, and then if others want to add to it, I would appreciate hearing from them.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

There are two things I want to bring out. I think it's highly unlikely that you could prosecute that person again if they've gone through a trial in another country. You'd have to have a darn good lawyer, Mr. Woodworth. It could happen, but you never know what can happen in the courts. I don't know of a case where this has happened.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Even if there was an acquittal on the charge in the other country, we wouldn't do it here?

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

No, not to my knowledge.

I will defer to the lawyers on the panel to answer that because they have far more expertise in a court of law than I have.

Maybe I'll defer to that to you. Maybe there's more you can add to that.

I'm asking both of you.

[Prof. Amir Attaran]

You have to be a fool as a lawyer to speculate on this, so allow me to be a fool.

Probably if you've been acquitted in another country as a Canadian or permanent resident charged with trafficking in that country and you return to Canada, first of all, it's unlikely that prosecutorial exercise in Canada would be used to prosecute you again. If it did happen, and if you had a good defence lawyer, you can enter the plea of autrefois acquit.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Even though it's a foreign acquittal?

[Prof. Amir Attaran]

Yes. There would be a question—a very interesting question of law, and I don't actually know this off the top of my head—about whether the legal standards used in the country where you were acquitted were comparable enough to Canadian legal standards that the acquittal would stand and your plea of autrefois acquit would work.

That's going to be fact-dependent. I think you really can't make a general prediction about it.

[The Chair, Conservative, Dave MacKenzie]

Okay. Ms. Prober, go ahead.

[Rosalind Prober]

I'm overtalked. Our lawyer here knows about this.

[Dr. Mark Erik Hecht]

It would be an interesting test, I agree.

What I can say is that it happens in civil litigation all the time. With multinational corporations, it happens all the time. They're held to a different standard in different jurisdictions.

The U.S. has the Alien Tort Claims Act, which specifically allows, in the area of human rights, for a multinational corporation to be sued in various jurisdictions for basically the same human rights crimes. It would be novel to see how it would work in criminal law, but it definitely works on the civil litigation side.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

So it's complicated. I'll take it at that. But I do—

[The Chair, Conservative, Dave MacKenzie]

Thank you. We're over time.

Ms. Freeman, go ahead.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Thank you, Mr. Chair.

I will ask one question, and the reminder of my time will go to Mr. Harris.

Professor Attaran, in speaking to this committee, you seem to want this Parliament to be more forward-thinking. Indeed in Canada, aboriginal women and aboriginal girls are disproportionately victims of human trafficking for the purpose of sexual exploitation.

Given this reality, what could this Parliament do to make provisions in the law to address the specific needs of aboriginal women in this country?

[Prof. Amir Attaran]

I don't feel qualified to single out exactly what legal provisions are needed for aboriginal women, per se.

I hope you have another—

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Domestic, perhaps.

My interest is in aboriginal women, but just generally domestic—

[Prof. Amir Attaran]

On domestic, I mentioned in my main testimony that the difficulty is that in these busts, too often handcuffs do go on the victim.

Timea is saying it's getting better—it is getting better—but to take her own statistics, she said that 60% to 65% of the time that doesn't happen. Well, do the arithmetic. It means that over a third of the time it does happen.

In any other context, if a third of the time we were arresting the victim, there would be an outcry. We shouldn't be doing it a third of the time; we shouldn't be doing it 1% of the time.

There is a very long way to go there. There are needs for mental health services to be provided to women when they're domestic victims. That's all the more important for the foreign victims. The foreign victims can get temporary resident permits, but they don't get housing. They don't necessarily get translation services. The temporary resident permit does not automatically come with work permission; you probably need a lawyer to help you apply for that.

This is on the face of the current policy: CIC's guide IP 1 in this area, section 16. I recommend that you look at it.

More needs to be done to make the process more sensitive, whether you are domestic or foreign. That's my point.

[The Chair, Conservative, Dave MacKenzie]

Ms. Nagy had some comments there.

[Timea E. Nagy]

It's just that you actually don't need a lawyer to get a work permit. It's included in your temporary work permit.

[Prof. Amir Attaran]

It's not.