Bill C-350 (Historical)

An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking and transplanting human organs and other body parts)

This enactment amends the Criminal Code to provide for the imposition of penal sanctions for persons who, in Canada or outside Canada, are knowingly involved in the medical transplant of human organs or other body parts obtained or acquired as a consequence of a direct or indirect financial transaction or without the donor’s consent. It also amends the Immigration and Refugee Protection Act to impose sanctions on individuals in respect of whom there are reasonable grounds to believe that they were engaged in the trafficking and transplanting of human organs or other body parts by providing that they are inadmissible for the purposes of entering or remaining in Canada.

Criminal Code

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Madam Speaker, I want to talk about sections 36 and 37 of the Immigration and Refugee Protection Act in my speech, which already address inadmissibility grounds with respect to criminality, serious criminality and organized criminality. That will be the majority of what I will be speaking about in my speech.

I am pleased to be able to take the floor to discuss Bill S-240, an act to amend the Criminal Code and the Immigration and Refugee Protection Act, which proposes new criminal law responses to tackle the issue of organ trafficking.

I would like to spend my time discussing the bill's proposed changes to the Immigration and Refugee Protection Act.

Members will likely be aware that the Immigration and Refugee Protection Act sets out a number of rules governing who is and who is not admissible to Canada. In particular, division 4, part 1 of the act specifies a number of situations where a foreign national or permanent resident will be inadmissible to Canada for reasons of security, for reasons of criminality of various types, or for having engaged in human or international rights violations.

Section 35 specifically articulates the grounds upon which a permanent resident or foreign national would be inadmissible for reasons of violating human or international rights, such as where the person has engaged in genocide or war crimes. Bill S-240 proposes to amend this section to provide that a permanent resident or foreign national would be inadmissible to Canada for having engaged in conduct that would constitute an offence captured by any of the four new offences proposed in this bill. This amendment raises interesting issues that I look forward to hearing more about during our debates here in the House.

In determining whether someone is inadmissible, Bill S-240 would require the minister to be satisfied that the individual engaged in conduct that is captured by the bill's proposed new offences. In the summary of the bill, it notes that the minister who would be responsible for making such determinations would be the Minister of Citizenship and Immigration. However, it is my understanding that the minister who is responsible for the inadmissibility sections of the Immigration and Refugee Protection Act is the Minister of Public Safety. It is unclear to me whether the sponsor of the bill is proposing that the ministerial responsibility for this new ground of inadmissibility be different than what is currently the case. It is important to ensure that the bill would not result in a situation where ministerial responsibility is either misunderstood or inconsistently applied in this act.

I would also be interested to hear more from the bill's sponsor in the House of Commons as to whether amending section 35 of the Immigration and Refugee Protection Act is appropriate, given the focus of the section is on international rights violations. It is not clear to me why the amendments are proposed here, rather than in sections 36 and 37 of the act, which deal with inadmissibility on the grounds of criminality, serious criminality and organized criminality.

I would also like to note that another private member's bill, Bill C-350, introduced by the sponsor of Bill S-240 in the House, dealing with the same issue, would amend section 37 instead of section 35. There appears to be some uncertainty as to where this kind of change should be made, and I am interested in hearing more about this in the House.

More fundamentally, I wonder whether this type of amendment is even needed. The Immigration and Refugee Protection Act already contains a number of different grounds upon which a person may be found inadmissible to Canada. Specifically, sections 36 and 37 of the act already address inadmissibility on grounds of criminality, serious criminality and organized criminality. These provisions, in my view, are broad enough to capture the conduct targeted by the proposed amendment. For example, permanent residents or foreign nationals are inadmissible to Canada for engaging in serious criminality. While “serious criminality” is not defined, the provision makes clear that it includes engaging in conduct abroad that was an offence in the place where it occurred and that if it had been committed in Canada it would constitute an offence punishable by a maximum penalty of at least 10 years' imprisonment.

Under this rule, a foreign national or permanent resident who engages in conduct that would be criminalized by the offences proposed in Bill S-240 would be inadmissible. I wonder then what the rationale is for specifically enumerating a new ground of admissibility.

The same holds true for subsection 36(2), which states that a foreign national is admissible to Canada for having been convicted of an offence outside of Canada that, if it were committed in Canada, would have constituted an indictable offence.

Beyond the question I have already raised concerning the need for specific amendments of the Immigration and Refugee Protection Act, I would like to spend a few moments talking about what may be unintended consequences of Bill S-240.

As has already been discussed in previous speeches, one of the proposed new offences will criminalize any person who obtains or facilitates obtaining an organ from the body of another person where he or she knows or was reckless as to whether the organ was obtained for consideration. Others have spoken about how this would capture individuals who travel abroad to obtain an organ that was purchased in a country where it would be legal to do so. However, it is not only limited to this conduct.

For example, proposed subsection 240.1(3) will also criminalize medical practitioners who participate in the organ transplant surgery in the country where it is legal to do so. Under Bill S-240, that person will also be inadmissible to Canada. I wonder if this is an appropriate outcome.

I raise these questions because I strongly believe we need to fully appreciate the implications of any legislation that is brought before us. I do not believe that to this point, Bill S-240's proposed changes to the Immigration and Refugee Protection Act have benefited from the kind of detailed debate that is required. In fact, based on my review of the parliamentary record, I could not find a single question raised in the other place about the implications associated with Bill S-240's immigration-related proposals.

There can be no doubt that the issue of illicit organ trafficking is a serious one. There equally can be no doubt that we, as parliamentarians, are united in our concern and commitment to identifying appropriate solutions to address the behaviour of those who would seek to exploit the vulnerable, with no regard for their health or well-being.

Nevertheless, we should not let the seriousness of the issue detract from our responsibility to closely examine and, where possible, improve upon legislation that is brought before us. A number of issues have been identified with Bill S-240 that require more detailed examination, and I look forward to our continued consideration of them.

Human Organ Trafficking

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, the last petition I present this afternoon goes to the issue of ending the horrific practice of organ trafficking. There have been many petitions in this place on this point. The petitioners call on this place to accept Bill C-350 in the House of Commons and Bill S-240 in the Senate.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Mr. Speaker, I am pleased to rise and present this petition signed by many across the greater Toronto area who are basically calling for parliamentarians to support Bill S-240 and Bill C-350 to impede the trafficking of human organs obtained without consent or as a result of a financial transaction.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I am presenting petitions from people from across Canada who ask that Parliament move quickly on Bill C-350 and Senate Bill S-240 that deal with the harvesting of organs.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Mr. Speaker, I rise to present a petition on behalf of Canadians who are asking the government and all members of Parliament to support Bill C-350 as well as Bill S-240, which would deal with the horrific practice of organ trafficking, human organ removal and international trafficking. It is clear that this is an issue that resonates right across the country and many people are concerned about this. They want us to take action to protect the victims.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, the second petition deals with the issue of organ harvesting. Other members have raised similar petitions today.

Bill C-350 and Bill S-240 in the Senate are both designed to deal with trafficking and travelling for the purpose of human organ transplants. This is important legislation to end this quite atrocious practice.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, I am pleased to rise today on behalf of my constituents in Calgary Shepard to present three petitions on three different subjects.

The first is on the trafficking of human organs. The petitioners are asking for the government and all members of the House of Commons to support Bill S-240 and Bill C-350.

[Bruce Stanton, Conservative, Simcoe North, ON]

Mr. Speaker, the second petition is on behalf of dozens of citizens to bring attention to Parliament in respect to concerns about the international trafficking in human organs and the fact that there are two bills before Parliament at the moment, Bill C-350 and Bill S-240 in the Senate.

The petitioners are seeking Parliament's quick attention to this proposed legislation and that it be passed as soon as they possibly can.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Mr. Speaker, I, too, am presenting a petition signed by residents of Ontario in favour of Bill S-240 and also Bill C-350, which covers much of the same terrain. This is essentially about organ harvesting from people who do not want to have their organs removed from their bodies. This amounts, in essence, to the murder of one person in order to facilitate surgery to benefit another. Canada should not participate in this. When I chaired the Subcommittee on International Human Rights, all parties agreed that this is a barbaric practice that ought to be stopped. The petitioners, of course, agree with that conclusion.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Speaker, I rise to table a petition by three dozen Canadians. It is specifically drawing the attention of the House to the practice of illegal organ trading. They are asking parliamentarians to support the penalties in Bill C-350 and Bill S-240.

[John Nater, Conservative, Perth—Wellington, ON]

Mr. Speaker, I am pleased to present this petition signed by many residents of Ontario on the subject of international organ harvesting without consent. The petitioners call on the government to pass both Bill C-350 and Bill S-240.

Criminal Code

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

, seconded by the member for Victoria, moved that Bill S-240, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs), be read the second time and referred to a committee.

He said: Mr. Speaker, two well-known Canadians, David Matas and David Kilgour, have uncovered something shocking. Their painstaking research has unearthed that between 60,000 and 100,000 human organs are being transplanted in Chinese hospitals each year, with virtually no system of voluntary donation in place. Most of the organs come from prisoners of conscience, primarily Falun Gong practitioners.

I make this speech today in the presence of people who have been arrested in China, and had their blood tested in prison. It may have been that the only thing that prevented their victimization was that they did not match a potential recipient. They understand, more than anything else, the importance of what is happening on the floor of the House today.

Today, I am moving a Senate bill to ask the House of Commons to rule on a fairly simple proposition, that the removal of vital human organs from living patients without their consent is morally unconscionable and must be stopped.

About a similar bill in the past, the parliamentary secretary has said that this bill raises some complex legal and social policy issues. There can be no doubt, though, that the moral issues raised by the bill are quite clear cut. On the legal side, the bill has been well studied by the Senate. I believe it significantly improves on Bill C-350 that I proposed, and also on the original Bill S-240, which was subsequently amended by the Senate committee to bring us the version we have today.

The legal issue is not particularly complex, but in an effort to stop this horrific practice, it does invoke the idea of extraterritoriality. This is where the state seeks to punish someone for a crime he or she committed elsewhere. This is relatively uncommon, although morally necessary in cases like this. Generally, states do not see it as their affair to prosecute crimes that take place elsewhere, because the government of the state in which the crime occurs is best positioned to undertake that prosecution. The government ought not to be indifferent to serious crimes committed by Canadians abroad, but it is generally wise to leave the prosecution of those crimes to the state where they took place.

However, the normal practices should clearly not apply in cases where the local government is indifferent to, is unable to respond to, or is directly facilitating a grievous violation of fundamental human rights. In such cases, Canada can and must prosecute Canadians who go abroad to abuse human rights. Human rights do not apply any less to human beings in other countries. Nation states provide the practical framework through which rights are generally identified and preserved, but this should not be an excuse for allowing their own people to be complicit in grievous violations of human rights.

In 1997, during the tenure of Liberal justice minister Allan Rock, Canada explicitly made it a criminal offence in Canada for a Canadian citizen or permanent resident to engage in so-called child sex tourism; that is, to go abroad and participate in the sexual exploitation of children. Exactly the same principle applies in this case. One notable difference, though, is that offences related to organ harvesting are probably easier to prosecute. Unlike someone who engages in the despicable practice of child sex tourism, someone who benefits from organ harvesting will have follow-up medical needs in Canada.

This bill is morally necessary and it follows a well-established legal track.

A brief word on the legislative history of this initiative. My friend, the member for Etobicoke Centre, began this process on February 5, 2008, with a very similar bill, Bill C-500. He is, for those who do not know, a Liberal. Bill C-561 was proposed by former Liberal justice minister Irwin Cotler in December of 2013. I proposed Bill C-350 in this Parliament before Bill S-240 was proposed by the very excellent Senator Salma Ataullahjan in the Senate.

We have had four bills in 10 years, and now we have less than one year until the next election. When the next election is called, every bill will die and we will go back to the beginning. Four bills, 10 years, and fundamental human rights are at stake. If we do not proceed to a vote on this as soon as possible, I fear we will significantly reduce our chances of getting this done this Parliament. There have been four bills, 10 years and cross-party co-operation and engagement up until now. Let us not force the victims to wait any longer. Let us pass the bill as soon as possible.

Human Organ Trafficking

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

Mr. Speaker, I have the honour to table a petition once again, recognizing the scourge of human organ trafficking. The petitioners are looking for quick passage of Bill C-350 and Bill S-240.

Organ and Tissue Donation

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, it is a pleasure for me to rise today to discuss another initiative dealing with the issue of human organs and organ transplantation. By my count, there are five initiatives that have been or are before us that deal in some sense with the issue of organ transplantation. There were private members' bills put forward by my colleagues from Edmonton Manning and Calgary Confederation; we have the motion before us tonight; and we also have a number of legislative initiatives, one of which I have sponsored and which deals with the issue of illicit organ harvesting. That is, organs taken without consent, which is obviously a very different issue but is one that might be worth reflecting on in the context of some of the discussion that is happening tonight.

What we are debating tonight is Motion No. 189, which says:

That the House: (a) reiterate its commitment to facilitate collaboration on an organ and tissue donation and transplantation system that gives Canadians timely and effective access to care, since every year more than 250 people, out of the 4,500 on waiting lists, die without receiving a transplant; and (b) urge the government to support national efforts with provincial and territorial authorities and stakeholders to increase organ and tissue donation rates in Canada through public education and awareness campaigns, ongoing communication and the exchange of information, including best practices.

It is important to underline that when we debate a motion, it is essentially the House of Commons participating in a communications exercise. That is, we are all together, expressing a sentiment through endorsing an idea. In plenty of cases and in this case, it is a thing worth doing, given the motion is before us. I am going to be voting in favour of this motion.

However, I will also challenge members that the primary objective that we should pursue, as legislators, is not just to look for opportunities to put forward communication pieces on vital issues like this, but to actually look for opportunities to change the law in ways that actively increase the rate of organ donation and also that compel the government to take specific action to move these things forward. If a motion is a way of starting a conversation, that can be very worthwhile, but if a motion is a substitute for legislative action then it is perhaps not desirable. What we need to be doing is looking for opportunities, as legislators, to legislate to take the vital steps that need to be taken now to move this issue forward. I certainly commend the mover of this. I am, again, pleased to support this motion. However, there is such an urgency when it comes to moving forward and addressing, as the motion says, the number of people on waiting lists who die without transplants, that legislative changes are urgently required.

I was pleased to speak in favour of and support a bill by my colleague, a concrete legislative initiative by the member for Edmonton Manning, that would have created a national organ donation registry. Unfortunately, this bill was voted down. It was one of the first private members' bills that was put forward in this Parliament and it was defeated. A national system of national collaboration, which is indirectly hinted at by this motion, would have made the concrete difference. It would have taken far more steps in the right direction than this motion does tonight. It is with regret that I note the defeat of that bill because, had it passed, it would be saving lives today as we speak.

We had another bill put forward, by my colleague from Calgary Confederation, and this added the very helpful step of saying that when persons fill out their income tax forms they should be able to indicate on there whether they wish to be an organ donor, so it would be another opportunity for people to give information and hopefully this would increase the number of people who are saying they would like to be an organ donor. Again, it is a legislative initiative concretely moving things forward, compelling the government to action instead of simply participating in a communications exercise.

These were both good bills. I was pleased to see Bill C-316 pass.

In light of where we are in the electoral cycle and that we are likely less than a year until the next election, members should be seized with the urgency of moving forward good private members' bills that are currently before committee.

Bill C-316 passed the House at second reading. From what I understand of the process, it will need to complete the committee study, complete third reading and make its way through the Senate. There is an urgency to moving that bill forward. If all we do in this Parliament is pass this motion but not pass legislative action, that will have been a failure, a missed opportunity. I hope we will all be able to work together on that legislative initiative.

I would note the mindset and strategy behind Bill C-316. I am reading a fairly well-known book called Nudge by two behavioural economists, Thaler and Sunstein. It talks about this idea of something called libertarian paternalism, which is that governments, businesses, institutions that are shaping the architecture within which people can make choices can preserve complete liberty for the individual while still aligning the circumstances of that choice to try and bring about a socially desirable outcome.

In the case of organ donation, many people likely do not sign their donor cards not because they are choosing not to be an organ donor, but because it is simply that they are not confronted with a situation where they have to make a choice either way. They might be willing to be an organ donor, but they are just not thinking of it, and then something happens to them and they have never gotten around to signing their donor card. The idea of thinking about the choice architecture is to create the conditions in which people still have complete liberty to decide where their organs are going, but the circumstances increase the chances that they will make a choice that is in a broader sense socially desirable.

In the case of Bill C-316, it is about putting people in situations where regularly they are seeing the choice option in front of them, a way of nudging people toward making the choice one way or the other. If someone does not want to be an organ donor, absolutely the individual should have that freedom. However, it is useful for the person to be given that choice in as many contexts as possible so he or she at least is given the greatest opportunity to say yes or no. Hopefully, the individual would say yes so that again we do not have people who are not organ donors even if they thought about it they would be willing to be an organ donor, but they just never got around to signing the card or having that question in front of them.

In the context of discussion about organ donation, I want to talk briefly about Bill C-350 and Bill S-240. Tomorrow night we are going to be debating Bill S-240, which is from the Senate. It would make it a criminal offence for someone to go abroad to receive an organ for which there has not been consent. This is such an important and obvious bill. There are countries, one country in particular, where organs are taken from people without consent, often because the people are seen as politically undesirable by the government.

Anecdotally, Canadians have a sense that some people in other countries will travel to receive an organ that was taken without consent. That should be a criminal offence because being complicit in this terrible practice of organ harvesting is wrong and Canada should do everything it can to try to stop that practice. We should note in that context as well that people who are in that situation face a level of desperation because they know they need an organ and they are on a wait-list. One thing we can do is address that act specifically and address the fact that some people might go abroad to receive an organ that was harvested without someone's consent. At the same time, we can work to increase the level of organ donation here in Canada so that people no longer find themselves in that desperate situation. We can and we should do both.

By passing legislation like Bill C-316, we can ensure that people do not have to be in the desperate situation where they are on a wait-list and even where they may make a choice that they would not make under other circumstances that ends up harming someone else's life in another part of the world. With that in mind, I am very hopeful that we will be able to move forward quickly on the legislative initiative in Bill C-316 as well as Bill S-240 which we will be debating tomorrow.

I am pleased to support this motion, but the House must do more to make the vision behind this issue a reality.

Human Organ Trafficking

[John Nater, Conservative, Perth—Wellington, ON]

Mr. Speaker, I am pleased to table a petition signed by many residents of Ontario regarding the forced harvesting of organs internationally.

The petitioners call on Parliament to pass both Bill C-350 and Bill S-240.