Justice committee  Yes, it currently applies to both the domestic and the international cases. The other thing you might want to consider is whether or not there are other types of offences that have international aspects that you might want to add that phrase to. I say so because the court may consider, even if it were in all the trafficking offences, that there is a difference between trafficking offences and other offences that take place across Canada's borders.

Justice committee  I believe the (3) is in relation to where it would fall in the actual code—

Justice committee  “Harbours” is one of the actus reus verbs in the actual offence. Here, this is describing the related fact that the prosecutor would have to prove. So the prosecutor would prove “living with” or “habitually being in the company of” an exploited person, and once the prosecutor has done that, the prosecutor has made out an actual required element of the offence, which is exercising controlled direction or influence over the movements of that person.

Justice committee  The offence as currently drafted applies to cases that take place entirely within Canada and to cases that cross international borders. In that sense, this is not necessary. It already applies. The other concern is that this phrase is only added to section 279.01. We that know we have a child-trafficking offence as well as a financial benefit offence and a documents offence, which are equally trafficking offences.

Justice committee  I did at one time have a list. I may well have left it in my office. I did refer to aggravated sexual assault in my opening remarks, and I think that is what you are thinking of. In the aggravated sexual assault provision, section 273 of the code states that where “a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization”, the maximum is “imprisonment for life” and the minimum is “in the case of a first offence, five years, and...in the case of a second or subsequent offence, seven years”.

Justice committee  To my knowledge, six years is unprecedented, i.e., there isn't a precedent for having a six-year mandatory minimum penalty in the code currently. There are other numbers, but not six.

Justice committee  I would like to, if you don't mind, get my list of mandatory minimum penalties so I don't mislead the committee in any way.

Justice committee  Well, I'm not a charter expert. I want to put that out there, so I'm not misleading anybody. But I'm sure the committee members are aware that mandatory minimum penalties do pose a risk of violating section 12 of the charter, which entrenches the right not to be subjected to cruel and unusual punishment.

Justice committee  For me, there are different elements of the offence that need to be proven by a crown in a court of law. That's not to say that a given situation, a given fact scenario, might not equally fit under section 279.01 and subsection 212(2) or 212(2.1). They might equally fit and you might see charges, in fact, under both of those provisions, as we did in the Nakpamgi case.

Justice committee  Unfortunately, no. That's why I stressed to the committee that they were all a result of guilty pleas. Of course, we're anxious to have judicial interpretation of this new provision.

Justice committee  By challenges, do you mean the charter?

Justice committee  That is the legal test. Exploitation is defined in section 279.04, as I've just described.

Justice committee  There are a variety of different trafficking-related offences. They include charges for child prostitution, procuring, living off the avails of prostitution, assault, uttering threats, and extortion.

Justice committee  Some of them were. One has to remember that with case law these things aren't always noted. I can say that of the cases in the last period that we looked at--because we monitor these cases as best we can, so that would be spring of 2008 to spring of 2009--we are aware that at least nine of the victims were under the age of 18.

Justice committee  Would this cover a scenario like that? It's impossible for me to say, based on a hypothetical set of facts. What I can say is what the law says, which is that where a person engages in conduct that basically requires the other person to offer up labour and services under circumstances in which they apprehend that their safety would be threatened if they failed to provide that labour or those services, then the provision in section 279.01 would cover that given situation.