Paul MacKlin

[Criminal Code, September 27th, 2005]

Mr. Speaker, the principle being advanced here is very clear and distinct in what we are really trying to say. I agree with the hon. member to the extent that if we can take the profits out of crime, then there really is not any particular reason for pursuing that sort of activity.

With respect to the member's specific concerns about the ability of our legal system to trace money and to hold money, there are in place already certain provisions that will permit that money to be held, and even if it could be shown to be in the lawyer's hands, to be held pending the hearing process.

The other option that is offered in this legislation that is of some interest to the member is that first of all, in order for the reverse onus to apply, the Crown would first be required to prove, on a balance of probabilities, either that the offender engaged in a pattern of criminal activity for the purpose of receiving a material benefit or--and here is the one that likely comes closer to fitting the member's concern--that the legitimate income of the offender cannot reasonably account for all of the offender's property.

This is broad and far-reaching. It goes well beyond the present legislation where we are limited really to the proceeds of that particular act of criminality, unless we can prove beyond a reasonable doubt that something did come from and can be identified as proceeds of crime by itself.

The member's concerns are legitimate. It is something that should be raised at committee. We should ask the experts to make sure that they have the tools in place to allow for the tracing and following of moneys. I believe that this new bill will really go a long way toward taking profit out of crime. Then I think we will see some positive results in terms of our law enforcement.

[Criminal Code, September 27th, 2005]

Mr. Speaker, I am pleased to rise today in debate on Bill C-53, An Act to amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another act.

First and foremost, this bill seeks to amend the Criminal Code to put in place a reverse onus with respect to certain proceeds of crime applications. The new measures would apply to those convicted of a criminal organization offence or a serious drug offence and will provide that, subject to certain conditions, the property of such an offender identified by the Crown can be forfeited by order of a court unless the offender proves that the property is not the proceeds of crime.

In effect, these new provisions would add a new, more aggressive forfeiture method to the Criminal Code, in addition to the proceeds of crime forfeiture provisions that already exist.

This legislation also makes a number of corrective amendments to the current forfeiture of crime provisions for the purpose of ensuring clarity in these provisions.

The proposed new reverse-onus forfeiture power under Bill C-53 builds upon the current proceeds of crime scheme in the Criminal Code.

The current provisions originate from legislation put in place in 1989. They are part of the criminal process that comes into play when a court is imposing sentence on an offender. At their core, they are fundamentally designed to put in practice the straightforward principle that crime ought not to pay.

By allowing the government to claim the proceeds of crime, these provisions directly attack the illicit economic gain that is the prime motivation of many types of criminal activity, especially organized crime activity.

As such, proceeds of crime legislation is absolutely vital in helping to deter this type of crime and to undermine the criminal groups that are responsible for it.

These proceeds of crime provisions are found at part XII.2 of the Criminal Code. They allow for the forfeiture of proceeds upon application by the Crown after a conviction for an indictable offence under federal law, other than a small number of offences exempted by regulation. These offences, for which this current procedure is available, are referred to as designated offences under the code.

Currently, in order to obtain forfeiture the Crown must show on a balance of probabilities that the property is the proceeds of crime and the property is connected to the crime for which the person was convicted. Alternatively, the Crown can also obtain forfeiture even if no connection between the particular offence and the property is established, provided that the court is nevertheless satisfied beyond a reasonable doubt that the property is proceeds of crime.

Attached to these existing forfeiture tools are other related powers. These include, for example, powers allowing special search warrants to find property that may be proceeds of crime; the powers of restraint and seizure of property pending resolution of criminal proceedings to ensure that the property does not disappear before a possible forfeiture order; and provisions for court proceedings to permit relief from forfeiture where appropriate in order to ensure the protection of legitimate interests in property, including third party interests.

These existing proceeds of crime measures have proven to be fair and effective powers under the Criminal Code. However, there are strong arguments that they have not been effective enough.

While Canadian authorities have managed to seize, restrain and ultimately forfeit substantial suspected criminal assets, these amounts are believed to represent a relatively small proportion of the total amount of proceeds of criminal activity in Canada.

Organized crime groups in particular are believed to have control of sizeable financial assets that are the product of illicit financial activity that have not successfully been recovered by Canadian authorities. There is a substantial international dimension in this as well, as criminal groups transfer illicit gains out of the country, or indeed, transfer illicit gains from activities in other countries into Canada.

While our current proceeds of crime provisions are effective, the government is of the view that they can and should be improved upon, especially in relation to organized crime. We must build upon the current provisions in order to make them more effective. In particular, there are limitations in the way the current provisions operate that create barriers for police and prosecutors.

While criminal organizations are believed to be involved in numerous offences leading to substantial illicit material gain, convictions are typically obtained only with respect to a small number of offences. It is not always the case that these offences have associated proceeds.

For example, if such a criminal is convicted of murder, no particular proceeds will in general be associated with that one offence. Even for other types of offences that often do involve economic gain, such as drug trafficking, it frequently is the case that arrests will take place just before a major drug transaction takes place. While the organization itself likely will have been involved in numerous other trafficking activities, the particular offence for which the person is charged in that case would have involved an offer to traffic, for which there may be few or no related proceeds. Even where conviction does take place for an offence for which there are related proceeds, and forfeiture of these proceeds is possible, the particular offence and associated proceeds will very often only represent a small proportion of the total offences and illicit accumulation of property for which the criminal organization is responsible.

This means that the Crown often has to rely on the second branch of the current proceeds test, requiring proof beyond a reasonable doubt that the property is nevertheless the proceeds of criminal offences. This often means that even after a successful prosecution, there is a prospect of substantial additional proceeds litigation with sometimes doubtful prospects of success to obtain property, which in the organized crime context very much appears from the outset to be proceeds of crime.

It is for this reason that a new reverse onus proceeds of crime forfeiture power is needed. It is the view of the government that there are certain criminal circumstances under which it is legitimate to presume that the identified assets of an offender are proceeds of crime. Of course, it should still be open to an offender to prove on a balance of probabilities that assets are in fact not proceeds of crime. However, failing such proof, the property should be forfeited by the order of the court. This is the basis of the proposed new power under Bill C-53.

This is a type of procedure that has already been adopted in a number of other democracies in respect of proceeds of crime. It is a power that federal, provincial and territorial ministers responsible for justice have identified as needed in Canada as well.

I believe that this initiative has considerable support within this House. I urge all members to work together to ensure that it is passed as soon as possible.

[Criminal Code, September 26th, 2005]

Mr. Speaker, I am very interested in the very positive approach taken by the member to this subject matter which is obviously very troubling to those who are aware of it. It is very important that others be made aware of this problem as it exists within our society.

I would like to ask the member if he would agree with me that it is not only legislation that we need to bring forward but we also need to ensure that with that legislation there is a great deal of education to ensure not only that this subject matter is recognized as being within our country but also that it needs to be dealt with in a most severe way.

[Criminal Code, September 26th, 2005]

Madam Speaker, as has been mentioned in the House today, Canada does have other laws that have been applied to human trafficking but not necessarily domestic laws that have been as precise as what are being proposed in Bill C-49.

I wonder if the hon. member, who I know is well versed in matters of justice and sits as the chair of the justice committee, might be able to comment on how effective Canada has been in terms of bringing human traffickers to justice using the existing methods that we have at our disposal.

[Criminal Code, September 26th, 2005]

Madam Speaker, I was very pleased to hear the hon. member make his remarks with respect to Bill C-49. He has caught the true flavour and feeling that all of us have when it comes to dealing with this subject matter.

I am wondering whether he agrees with the approach of dealing with the bill in a way that we deal with exploitation as being a key element. Does he believe that is the proper approach and the approach that really goes to the essence of this issue?

[Criminal Code, September 26th, 2005]

Mr. Speaker, there is no question that everyone within this country, both at the provincial and federal levels, mutually understand that this is something on which everyone would work together and try to implement. This of course is within the criminal jurisdiction of the federal government. We are trying to set out the appropriate type of offence that we believe can be properly prosecuted and that there will be convictions within the provincial sphere of the administration of justice. I think this would actually help the provinces carry out their duties because it is more precise and hopefully should lead to convictions that will be relatively easily obtained because of the nature of how we have described the offence within the bill itself.

I believe that there will be no problem with working with the provinces. I believe that this is a process that will be effective and that as and when we come up against these individual cases, we will find the provinces will be able to achieve their goals of effective prosecutions.

[Criminal Code, September 26th, 2005]

Mr. Speaker, the member does raise an interesting perspective to the issue at hand. When we look at it, we see first and foremost what we would refer to as the three p's of this process: the prevention of trafficking, the protection of victims and the prosecution of traffickers.

However, as I was trying to point out in my thoughts today, what we also need to do is educate the public because for the most part the public simply does not recognize that this exists. Our judicial system is part of the public and, quite frankly, they need to be equally informed of the nature of the problem that we have and the response that we believe is appropriate.

How we as a Parliament send the message to those who work within the justice system is usually through defining the nature of the penalty and, in particular, when we talk about the maximum of life imprisonment being one of the utmost of penalties that one can give within our system, we are bringing the message home that when judges examine all of the facts before them they take into consideration the way Parliament views this type of activity.

As I have mentioned before, it is fundamental to all of us that human rights protection, in particular the security of person, is absolutely essential. As we look at the broader picture throughout the world, we will do everything that we possibly can on an international stage, through the UN and through the various protocols that we have adopted, to work together with the international community to achieve the goals of reducing as much as possible this type of activity and if possible to try to eliminate this type of activity.

However on the domestic level this particular bill is extremely important because there are issues where within our own country we need to have the appropriate penalties and the appropriate charges that can be laid and the bill would create those offences that are appropriate. I believe that this would be helpful in bringing forward to the attention of all those involved within the justice system that this is an area where we no longer wish to have this carried out within our country, and that we want these penalties to be meted out appropriately and to bring this matter to an end.

[Criminal Code, September 26th, 2005]

Mr. Speaker, the hon. member raises a very good point. Because of the very clandestine nature of the activity of human trafficking, it is impossible to get a full appreciation of the scope and impact of the problem, both internationally and at the domestic level.

However, as I mentioned in the speech, a couple of estimates that have been provided seem to give us some understanding of how broad-reaching this problem is in an international context.

According to the figures that I have, the United Nations estimates that over 700,000 people are trafficked each year. In accordance with the International Labour Organization, the estimates are that at any given point in time there will be just under 2.5 million people who are in forced labour situations as a result of human trafficking. Clearly, no country is immune from this and yet it is such a fundamental violation of human rights.

I do not think we can say that within Canada we have resolved the problem at this point which is why we want to bring forward for domestic purposes, as well as to work internationally, this legislation to deal with the problem that we know exists. We think it is fundamental. We think we have to do everything possible to give our authorities the ability to track down, properly charge and convict these individuals who would deem themselves appropriate to participate in this type of activity.

Second, the legislation would target those who would try to profit from this type of activity.

When we start hearing about some of the aspects in human trafficking, especially when it gets into not only the sex trade but also into human organs removal, the whole idea and concept of human trafficking and its results is something that is so abhorrent to us as a society and so against everything that we as Canadians believe in, I believe it is important that the legislation be adopted as quickly as possible to assist our officials in being able to bring about enforcement, prosecution and sentencing of these individuals.

[Criminal Code, September 26th, 2005]

Mr. Speaker, it is a pleasure to be here at the opening of this session of Parliament to participate in the debate on Bill C-49, an act to amend the Criminal Code, trafficking in persons.

Trafficking in persons is sometimes described as the new global slave trade—no country has been left untouched by this terrible scourge. In a recently released report, May 11, 2005, by the International Labour Organization, it is estimated that the total number of people who are in situations of forced labour as a result of human trafficking is at least 2.45 million people around the world.

Who are the primary victims? Women and children. UNICEF estimates that 1.2 million children are trafficked around the world each year.

When we hear numbers like this we get a better appreciation of both the magnitude and urgency of strengthening domestic and international measures to combat human trafficking. We must ensure that we have the best response possible to a crime that is such a horrible violation of human rights, a crime that disproportionately impacts the most vulnerable in our society.

Bill C-49 does that. It is undoubtedly an important step toward strengthening our ability to protect the vulnerable, an ongoing priority for the government, and it reflects the government's commitment to ensure that Canada's legal framework clearly recognizes and strongly denounces and deters human trafficking.

It does this by proposing the creation of three new indictable offences to better address human trafficking—in whatever form it may manifest itself. The main offence of “trafficking in persons” would prohibit anyone from engaging in specified acts, such as recruiting, transporting, harbouring or controlling the movements of another person for the purpose of exploiting or facilitating the exploitation of that person. This offence is punishable by up to life imprisonment reflecting its severity and its harmful consequences to its victims and Canadian society.

Second, Bill C-49 proposes to deter those who seek to profit from the exploitation of others by making it an offence to receive a financial or material benefit knowing that it results from the trafficking of persons. This offence is punishable by up to 10 years' imprisonment.

Third, Bill C-49 proposes to prohibit the withholding or destroying of travel or identity documents in order to commit or facilitate the trafficking of persons. This offence is punishable by a maximum of five years' imprisonment.

Human trafficking is all about the exploitation of its victims. The very thought of being denied one's right to life, liberty and security of the person and to being treated as a commodity to be bought, sold and used for whatever purpose is unimaginable and yet it is the reality for so many.

Bill C-49 recognizes this exploitation in a very real and concrete way and would make exploitation a key element of the offence. As defined by Bill C-49, exploitation means causing people to provide labour or services, such as sexual services, by engaging in conduct that could reasonably be expected to cause those people to fear for their safety or that of someone known to them. It also could mean removing a human organ or tissue from victims through the use of force or deception.

Bill C-49 would strengthen Canada's legal framework by building upon the existing domestic and international responses to human trafficking.

There are many international instruments that address human trafficking, but the most recent one is the United Nations Convention Against Transnational Organized Crime and its supplemental protocol to prevent, suppress and punish trafficking in persons, especially woman and children, which offers a widely accepted international framework for addressing the issue. Bill C-49 more clearly reflects this framework. In keeping with this framework, Canada's approach, as reflected in Bill C-49, focuses on the prevention of trafficking and the protection of its victims and the prosecution of the offenders.

The proposed reforms in Bill C-49 send a very clear message to those who seek to exploit the most vulnerable members of society through this form of criminal conduct will be brought to justice.

Bill C-49 would strengthen our current responses to trafficking by building upon existing provisions of the Criminal Code that address trafficking related conduct and would complement the provisions in the Immigration and Refugee Protection Act that seek to safeguard Canada's border against human trafficking and human smuggling. The new criminal offences proposed by Bill C-49, together with the existing legal framework, will provide criminal justice personnel with a significantly enhanced ability to ensure that the offence charged is the one that best responds to the facts of the specific trafficking case.

The government is also addressing human trafficking through other non-legislative measures, a reflection of the reality that an effective response to such a problem requires not only a strong legal framework, but also multi-sectoral collaboration to enhance our awareness and understanding of the problem and to facilitate effective and meaningful implementation of targeted responses.

The government recently has undertaken numerous measures for this end. For example, a website on trafficking in persons was launched in April 2004 and can be accessed through the Department of Justice Canada website. The website provides useful information for the public, describing the problem and related links.

Public education and awareness is being fostered through the development and broad dissemination within Canada and to Canadian embassies of a poster and an information pamphlet—available in 14 languages—to help prevent human trafficking victimization.

Professional training and education about human trafficking and enforcement related issues is underway and began with a training seminar in March 2004, co-hosted by the Department of Justice Canada and the International Organization for Migration. A similar seminar was held in May 2005 in Vancouver, hosted by the RCMP.

I support Bill C-49 because it is an important step toward strengthening Canada's ability to prevent human trafficking, to better protect its victims and to hold traffickers accountable. I hope all members of the House will be able to support the expeditious passage of this important legislation.

[Civil Marriage Act, June 28th, 2005]

She wants it passed? Well, then I misunderstood, if that is the truth. I think she indicated that she did not want to see this pass.

The law has already been changed in nine provinces and territories to the extent that it will allow now for equal access to civil marriage for same sex couples, meaning that the law has already changed for a majority of the Canadian populace, and thousands of couples have legally married.

Now the choice, I submit, for this Parliament is either to go forward and make the law uniform for all of Canada or to go back to the past using the notwithstanding clause. I do not think there is any middle ground here. Either same sex couples can marry civilly or they cannot. So if this bill is defeated, what do we gain?