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.

Justice and Human Rights

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 24th report of the Standing Committee on Justice and Human Rights in relation to Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons).

The committee has studied the bill and has decided to report the bill back to the House with amendments.

[Françoise Boivin, NDP, Gatineau, QC]

This is a problem for me because, during the study of Bill C-452, we all agreed in saying that the offences in question were serious. I have seen government bills take up to a year or a year and a half to be passed. The argument related to provinces is not the problem here; this is a classic case of procrastination.

Sometimes, deciding when a piece of legislation should be implemented has to do with politics. This is absolutely not a problem for the provinces, which know very well what we look at when we study bills related to criminal law. Quebec's minister of justice is fully up to speed, and that is the case for all other bills. The same goes for all other provincial ministers of justice.

I understand the Supreme Court's argument. I absolutely don't want to have any problems—for instance, a case where one of the two parties appearing before the Supreme Court may use what we are doing to argue that this is a message from the government.

That being said, the message was clear. This piece of legislation will come into force 30 days after it receives royal assent. We know exactly when that will be. In short, either we are serious or we are not.

[Judy Sgro, Liberal, York West, ON]

Thank you very much.

Thank you for your indulgences. I'm filling in for Professor Cotler on an issue that I think is really important to all of our people, especially when, particularly, you say that.

The concerns that we have regarding the amendment are that it apparently changes what's caught by the “proceeds of crime” provision. The current wording in Bill C-452 adds “procuring or trafficking in persons”.

As much as we support the government's amendment, to the extent that it removes the phrase “procurement”, it certainly is a procurement offence in section 212 of the Criminal Code, which is before the Supreme Court—we all know that. We do not want to prejudice any of the parties or the court, in the determination of the case. Indeed, of particular concern is that the procurement offence contains the “living off of the avails” provision, to which applying proceeds of crime might prove problematic and undesirable, in relation to prostitutes who take measures for their safety and protection.

The concern we have with the rest of the government's proposed change is that specifying human trafficking offences, instead of using the phrase “trafficking in persons” might be far too narrow in the event, for example, if someone is charged with numerous offences related to trafficking, but perhaps the trafficking charge itself does not hold.

We certainly understand that from a legislative drafting perspective, clarity in the code is desirable, and we would not want to have extended discussions of what is, and is not, trafficking, relative to the proceeds of crime upon sentencing. With that said, we do have concerns that someone who has engaged in or assisted in human trafficking, but is not charged with that specific offence, would not be subject to the proceeds of crime provision.

[Françoise Boivin, NDP, Gatineau, QC]

Here's how I see things. When I mentioned the decision in the Bedford case, I simply wanted to argue that our whole debate on section 1 may have been pointless, since we don't know what position the Supreme Court will adopt. The amendment proposed in Bill C-452 does not affect the correction the trial judge asked parliamentarians to make. It was not related to types of sentences, but to the offence itself. I think that's more or less applicable.

However, I am always somewhat reluctant to amend a provision that has already been submitted to the courts. We may want to err on the side of caution and wait for the Supreme Court's ruling. I have no problem with that approach. However, I fully support the proposed amendment to section 212 of the Criminal Code concerning sentence types, provided that it is considered constitutional.

It's simply a matter of delaying the process. Mr. Seeback is right. If the Supreme Court concludes that those provisions are entirely constitutional, the issue will come before us again and we will have to consider it once more. Perhaps someone else could propose an amendment. Even the government could do that, since it really seemed to support this bill.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I have a motion, Mr. Speaker. It has been discussed with Madam Boivin, I believe, and the Liberal Party, perhaps not Mrs. Sgro.

We voted previously on clause 1. I seek unanimous consent to reopen the discussion on clause 1. Actually, Madam Boivin picked up on this during earlier discussions, and it has to do with the Bedford case, which is before the Supreme Court of Canada.

You'll recall that we voted in favour of clause 1. This bill would impose a mandatory consecutive sentence in cases where a person has been convicted under section 212 of the Criminal Code, the procuring provision, and any other offence arising out of the same events or series of events. You'll also recall that we addressed clause 1 in the context of Liberal amendment 1, but we did not discuss the substance of the clause.

As I say, there's the issue of the Bedford case before the Supreme Court of Canada. I know you're aware of this, and it's expected to be heard by the Supreme Court of Canada in June. The court will be considering the constitutionality of several of the Criminal Code's provisions regarding prostitution, including one of the procuring provisions, the procuring offence under paragraph 212(1)(j), living off the avails of prostitution, which this squarely deals with in clause 1.

In my view, this committee should carefully consider this matter and seek further input from the Department of Justice on the matter. For this reason, I would move a unanimous consent to reopen the discussion on clause 1 of Bill C-452 for further consideration by the committee. It may be appropriate to consult the expert here on this, Mr. Chair, if we do get the unanimous consent.

Trafficking in Persons and Sexual Exploitation

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, the second petition is in support of Bill C-452, which seeks to combat trafficking in persons and sexual exploitation.

[Nathalie Levman]

I can explain the amendment. It does create a separate legal test for exploitation, so the police would have to decide which definition they would go with. Previous witnesses have correctly pointed out that much of this language is derived from article 3 of the United Nations trafficking protocol and, as has already been pointed out, that language has not been judicially interpreted in Canada so there really is a problem with vagueness and potential overbreadth here with some of this language. It could confuse the operation of the law, and it raises potential charter considerations.

On the point of the words “labour services”, the current provision in section 279.04 is intended, of course, to cover all types of labour or services including sexual services. Bill C-452 does refer to sexual services in the separate legal test it provides and, of course, that relates back to the prostitution provisions, which also refer to sexual services.

This is a term that has meaning in our law, is intelligible, and has been judicially interpreted.

[Sean Casey, Liberal, Charlottetown, PE]

Yes, please.

Mr. Chair, you have Bill C-452 before you. I referred to this in my intervention with respect to amendment G-2. Essentially, this adds in the provisions with respect to living off the avails of human trafficking or exploitation, so it deals with the example I referred to in amendment G-2, the example of the two brothers, where one would have the availability of the presumption. One would be forced to deal with the rebuttable presumption, but the financier wouldn't. This would catch him.

I do share the concern of the sponsor of the bill and the witnesses over low prosecution rates for trafficking offences and agree that the presumption provisions may be beneficial. Such provisions, while not unprecedented in the Criminal Code, are limited in number, and rightly so, given the presumption of innocence. The committee has heard testimony that this reversal would help convict offenders when the victims of exploitation are too frightened to testify. This is a worthy goal, and I'm not seeking to do away with the reversal of the burden of proof.

I am, however, seeking to ensure that this extraordinary measure will not unintentionally lead to the conviction of a person who is not guilty. The current wording of the bill applies this provision to anyone who is “habitually in the company of” an exploited person, which is overly broad. The amendment would require someone to be living off the avails of the exploitation in order for the reversal of burden to apply.

Given the importance of these reverse onus provisions to the presumption of innocence, I think it's extremely important that we get it right. On the suggestion that the example may be off the wall, I don't think the example of the two brothers is. I heard Mr. Calkins referring to the availability of the aiding and abetting provisions within the Criminal Code, which would provide some assistance with respect to the actual offence, but in terms of the rebuttable presumption that we're now building in, it wouldn't.

I would ask that this be considered. Thank you.

[Nathalie Levman]

I believe so. I believe this accomplishes the same goal as is in Bill C-452, but it better reflects the type of language that's already used in the Criminal Code and that has been found to be constitutional, so it's safer. But it affects the same thing.

[Françoise Boivin, NDP, Gatineau, QC]

I just want to make sure my understanding of the burden of proof is correct as far as what the police, or rather the Crown, have to prove. It is, after all, the crown attorney who has to establish the proof. This doesn't make things harder for them than the original bill did. Unless I'm mistaken, we're repeating the language in sections 279.01 and 279.011 of the Criminal Code. We're doing somewhat the same thing when it comes to section 212 and the language regarding the presumption and evidence that the person lives with or is habitually in the company of a prostitute. So we're always repeating the language of the offence itself. That seems to make things clearer than they were originally in Bill C-452. That's what you're telling us, basically.

Using that language has absolutely no bearing on the strength of the burden of proof for the Crown. That's what the bill is trying to do, in other words, provide more tools to eradicate a scourge. That should be our focus. Indeed, if we want to send a crystal clear message that we have zero tolerance for human trafficking and we want to give police more tools, the language in question is perfectly fine.

Is my understanding correct? If so, then, I'm okay with it.

[Sean Casey, Liberal, Charlottetown, PE]

I have some submissions with respect to it. I'm satisfied with the answer to the question, but I have some concerns about the amendment. Bear with me, Mr. Chairman. In my submissions there are a couple of hypotheticals, so it's a bit lengthy and it's been prepared in advance.

This amendment replaces the key provision providing the presumption that one who lives with a person being exploited is deemed to have exploited or facilitated for the purposes of trafficking in persons.

The committee will know that we have also submitted an amendment to this section that may or may not be brought up or debated. It specifically references “living off the avails”, which we believe is an important element that should be incorporated. My concerns with respect to the proposed amendment G-2 will necessarily reference the fact that we feel “living off the avails” should be there.

The first general concern is that the presumption here applies to a person who is not exploited, but who “lives with or is habitually in the company of a person who is exploited”. This raises the issue of minors whose parents may be human traffickers or who are unaware of what is occurring. It would also apply, for example, to teachers who may not know that a child in their classroom is the victim of exploitation, as teachers would arguably meet the definition of “habitually being in the company of”.

Certainly, we want to facilitate the prosecution of traffickers, but not at the risk of casting too wide a net. As such, I hope that if amendment G-2 passes, Liberal 3 will be given strong consideration to exempt minors from the operation of this provision. If that language is not acceptable to the government, I hope that it will propose a subamendment to G-2 to address this problem.

My second concern relates to the specifics of the presumption at issue. In Bill C-452, the proposed presumption deems someone living or habitually in the company of an exploited person as exploiting them or facilitating their exploitation. Amendment G-2 stipulates that evidence that someone is in this situation is proof that the person exercises control, direction, or influence over the movements of the exploited person. I believe this presumption is problematic and counterproductive to our shared goal of enhancing the prosecution of human traffickers.

In the presumption in Bill C-452, what is rebuttable is whether or not someone has exploited or facilitated exploitation. This is a different presumption to counter and one that goes to the heart of the matter, namely, exploitation. The wording in this amendment seems to suggest that we are concerned about who exercised control, direction, or influence over the movements of the exploited person or persons.

Let's imagine a scenario where two brothers live together and run a trafficking ring from their house. While one brother who interacts with the exploited individuals would surely be caught by this presumption, the sibling who does only the financing and who has no real interaction with those being exploited may raise arguments that his actions do not control or influence the movements of the persons. He may not be caught by this presumption, whereas the mere fact of his shared residence would be sufficient for a presumption of his involvement under both the bill unamended and under the bill with the Liberal amendment.

While that example illustrates the narrowness of the presumption after amendment under G-2, in some cases it may also be over-broad. For example, women working together as sex workers may not know the extent to which one may be controlled by her pimp, financially or otherwise. But a broad reading of this presumption would operate to target all of the sex workers in habitual contact with her as facilitating her exploitation. I don't believe that's our intention.

We're all aware that a similar presumption, relative to prostitution-related cases, is under review by the Supreme Court in the Bedford case. I don't wish to prejudice their analysis in any way, but I believe that this presumption may operate in a wholly undesirable, if not unconstitutional, way.

Thanks for your patience, Mr. Chairman.

[Françoise Boivin, NDP, Gatineau, QC]

I don't know whether it's due to the fact that I'm not feeling well and my head is a bit foggy, but I'm having a hard time with the numbering for this clause.

If we adopt amendment G-1, basically, we will be deleting subclause 2(1) of the bill. That would mean that clause 2 would no longer contain subclause (1). I'm not sure that the numbering is right, but I might be the confused one. The amendment reads as follows:

That Bill C-452, in clause 2, be amended by replacing lines 1 to 7 on page 2 with the following: “(3) [...]

But it's no longer subclause (3). I assume it should be subclause (2).

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey. I will rule on that amendment.

Bill C-452 amends the Criminal Code to provide for consecutive sentences for offences related to procuring and trafficking in persons. This amendment proposes to include a provision whereby the sentences for those offences could be served concurrently.

As House of Commons Procedure and Practice, second edition, states on page 766, “An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.”

In the opinion of the chair, the inclusion of a provision that could permit sentences for these offences to be served concurrently would be contrary to the key element of the bill and therefore is inadmissible. As amendment Liberal-4 is consequential to this amendment and contains the same provision, it is also inadmissible.

I'm ruling that it is out of order. Are there any questions or comments on that?

Seeing none, we will move on. Shall clause 1 carry?

(Clause 1 agreed to)

(On clause 2)

Clause 2 has amendments.

On government amendment G-1, we have Monsieur Goguen.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

You have amendment Liberal-1 before you. Bill C-452 requires judges to issue consecutive sentences for offences under section 212 of the Criminal Code. This amendment would allow for exceptions if the judge deems consecutive sentences to be not in the best interests of justice, and would require a written explanation from a judge in such cases.

I wasn't here for the testimony, but I understand that you've heard compelling testimony that concurrent sentences for exploitation are presently the norm, and that this norm has to be reversed in order to create a disincentive for those committing exploitation to expand their operations. I believe that this can be done without compromising the proper role of the judiciary or charter guarantees such as those against cruel and unusual punishment.

As such, this amendment would preserve the bill's instruction to judges that sentences under section 212 of the code are to be served consecutively, while allowing for concurrent sentences in exceptional circumstances, thus retaining judicial discretion. Further, it would require judges to explain in writing their decision to provide concurrent sentences in such cases.

[The Chair, Conservative, Mike Wallace]

I call this meeting back to order.

I would also invite Madame Mourani to the table, if she'd like to come. It's a private member's bill, her bill, and I think that's only appropriate if she'd like to be here to take part in the discussion. As chair I think I'll honour that, as it's a private member's bill.

Ladies and gentlemen, I think we have nine amendments to the six-clause bill. We have set aside until 5:15, but we can go longer if needed, obviously, as we need to do this.

So we are doing clause by clause of Bill C-452. Put up your hand and we'll take notes and we'll recognize you. And if you want to ask the staff from the department a question, they'd be happy to do that—I'm not sure Nathalie's happy to answer, but she's here for that—or to deal with anything about the ruling. That's why I'm surrounded by clerks, because they don't think I know what I'm doing.