Bill S-223

An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs)

This enactment amends the Criminal Code to create new offences in relation to trafficking in human organs. It also amends the Immigration and Refugee Protection Act to provide that a permanent resident or foreign national is inadmissible to Canada if the appropriate minister is of the opinion that they have engaged in any activities relating to trafficking in human organs.

[The Chair, Liberal, Ali Ehsassi]

As you're well aware, and as was explained to you, Mr. Genuis, the clerk did change that last Monday, and that was out of a concern to make sure that the committee's time is being used efficiently, because as you know there are many issues the members would like to consider.

Yes, that did change, and Bill S-223 is now scheduled for Wednesday.

[Dr. Miriam Cohen]

In fact, Bill S‑223 would establish a separate criminal act. Trafficking in human organs would be established as a criminal act in itself, without necessarily being a consequence of human trafficking. What is already a criminal act is trafficking in persons. That is my answer.

As I said, the study I conducted recently outlined the current trend in international law: according to the reports, these crimes can be separated. There was concern expressed about treating trafficking in human organs as part of trafficking in persons, without seeing the distinctions that can exist when trafficking in persons is not present.

This would therefore follow the trend of the convention I mentioned, but also other trends that trafficking in human organs should be treated as a separate and distinct crime from the crime of trafficking in persons for the purpose of removing organs.

[Stéphane Bergeron, Bloc, Montarville, QC]

I will try to be brief, Mr. Chair.

I would like to speak to an issue that Ms. Cohen mentioned a few moments ago.

Section 279.04(3) of the Criminal Code defines exploitation for the purpose of trafficking in persons as including the removal of organs and tissue “by means of deception or the use or threat of force or any other form of coercion [...]”.

In addition, section 279.02(1) makes it a crime for an individual to receive “a financial or other material benefit knowing that it is obtained by or derived directly or indirectly from the commission of an offence”, which is trafficking in persons for the purpose of exploitation.

To be clear, what actions does Bill S‑223 wish to prohibit that are not already prohibited under the Criminal Code?

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

I will follow up on Ms. Bendayan's lead with questions for Ms. Cohen.

Ms. Cohen, I must say that I was looking forward to hearing one of the witnesses say a few words in the language of Molière. It's not something that happens very often at this committee. I imagine that if I ask you questions in the language of Molière, we will have the pleasure of hearing you answer us in that language.

Bill S‑223 contains the following provision:

Everyone commits an offence who [...] obtains an organ to be transplanted [...] carries out, participates in or facilitates the removal of an organ [...] knowing that the person from whom it was removed or a person lawfully authorized to consent on behalf of the person from whom it was removed did not give informed consent to the removal, or being reckless as to whether or not such consent was given.

How will it be established that the persons involved knew or did not care that the removal was done without the informed consent of the donor?

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you. I believe that is a very good thing.

Can you elaborate on some of the mechanisms that are in place in Bill S-223 to track and monitor—

[Rachel Bendayan, Liberal, Outremont, QC]

—which would be implementing legislation of an international convention.

Would Canada, in fact, become a leader then in proposing to do this, as Bill S-223 does?

[Dr. Miriam Cohen]

Mr. Chair, I would add then to my initial comments the need to tackle organ trafficking specifically, and the criminalization of trafficking an organ. That is a different crime from the trafficking of a person for the purpose of harvesting or removing their organs, which is already criminalized in the Criminal Code. This proposed legislation disconnects organ trafficking from human trafficking, making it a separate offence. It also focuses on consent and informed consent, which addresses the situation of children who are victims of forcible organ removal.

Also, the text of Bill S-223 seems to apply solely to organs, exclusive of tissues and cells.

These are the main points that I did not address in my opening remarks.

Thank you very much.

[Dr. Miriam Cohen, Associate Professor, Faculty of Law, Université de Montréal, As an Individual]

Mr. Chair and members of the Standing Committee on Foreign Affairs and International Development, it is an honour and a privilege to appear before you today as part of a panel of witnesses in view of the consideration of Bill S-223, an act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs). Thank you for inviting me to appear before you today.

I'm an associate professor at the Faculty of Law at Université de Montréal, where I hold the Canada research chair on human rights and international reparative justice. My areas of teaching and research are international criminal law and human rights.

I will focus my remarks today on legal questions and more precisely on international law frameworks relating to the trafficking in human organs.

My opening statement will be in English, but I will be pleased to answer questions in both languages.

As for the context, as noted by various international reports, the commercial trade in human organs has developed into a global concern. Human organ trafficking causes grave human rights violations. It often involves transnational criminal activities committed by an organized complex network of criminal groups. Trafficking in human organs has become a highly profitable industry and, according to the United Nations Office on Drugs and Crime, organ trafficking remains among the most difficult crimes to detect.

The trafficking of human organs often involves the trafficking of human beings for the purpose of harvesting their organs. The United Nations Office on Drugs and Crime has recently deemed human trafficking for the purpose of organ removal one of the fastest-growing forms of human trafficking.

The flagship 2020 “Global Report on Trafficking Persons” indicated increasing reported cases of trafficking for the purpose of organ removal. Very recently, the United Nations Office on Drugs and Crime launched the toolkit on the investigation and prosecution of trafficking persons for organ removal.

Turning to the international legal framework of trafficking human organs, in considering the global impact of trafficking organs, there have been several initiatives under international law to combat organ trafficking. I will briefly review the most relevant ones.

The first is the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime”, also known as the Palermo protocol, with a September 29, 2003, entry into force.

Trafficking in persons for the purpose of organ removal is clearly defined in the Palermo protocol. Article 3a states:

Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons...for the purpose of exploitation. ...Exploitation shall include, at a minimum, the exploitation of the prostitution of others [and] other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

Canada ratified this protocol in May 2020. It is the first binding instrument under international law that defines trafficking of human beings and includes trafficking in persons for the purpose of removing organs. Canada changed its laws after the ratification of the protocol, a point to which I will refer later in my presentation.

Adopted in 2008, the “Declaration of Istanbul on Organ Trafficking and Transplant Tourism” is not a legally binding instrument under international law, but it does, however, provide some guidelines to states concerning organ transplantation. In 2010, the Declaration of Istanbul Custodian Group was formed, with the task of overseeing the dissemination of the declaration.

The preamble of the declaration refers to “exploitative practices that have harmed poor and powerless persons around the world”. The declaration has been endorsed by various national and international medical societies, including from within Canada.

I now turn to the World Health Organization's “Guiding Principles on Human Cell Tissue and Organ Transplantation”, the WHO guiding principles. The WHO has expressed concern with the commercialization of organs and adopted 11 guiding principles concerning transplantation programs. They aim to provide “an orderly, ethical and acceptable framework for the acquisition and transplantation of human...organs”. The guiding principles mention “informed” consent and the “prohibition“ of monetary payment.

There also have been United Nations General Assembly resolutions that have referred to trafficking in organs.

UN resolution 71-322 is entitled “Strengthening and promoting effective measures and international cooperation on organ donation and transplantation to prevent and combat trafficking in persons for the purpose of organ removal and trafficking in human organs”. Dated September 8, 2017, it “Urges Member States to prevent and combat trafficking in persons for the purpose of organ removal”. It further urges member states to consider adopting “Strengthening legislative frameworks, including by reviewing, developing or amending them, as appropriate, to prevent and combat trafficking in persons for the purpose of organ removal” and “Adopting appropriate legislative measures necessary to guarantee that the donation of organs is guided by clinical criteria and ethical norms”.

In the interest of time, I will move on to the Council of Europe Convention against Trafficking in Human Organs, which was entered into force on March 1, 2018. It is the first international legally binding instrument that is specifically dedicated to trafficking in human organs. As of this date, it has received 14 ratifications. The treaty is open to Canada for ratification, which has not yet occurred.

As per article 1, the purposes of the convention are as follows:

(a) to prevent and combat the trafficking in human organs by providing for the criminalisation of certain acts;

(b) to protect the rights of victims of the offences established in accordance with this Convention;

(c) to facilitate co-operation at national and international levels on action against the trafficking in human organs.

Within the legal framework in Canada, the Criminal Code criminalizes trafficking in persons and trafficking in persons for the purpose of organ removal—

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair. I was wondering if my turn would come at some point today.

I am very happy to be part of this exchange.

I thank the witnesses for joining us today to discuss this bill.

I would like, first of all, to discuss the procedural aspect that Mr. Genuis mentioned. I must say that I am sensitive to the point he made that it was already 15 years ago that this Parliament, and not just this legislature, was considering a law to prohibit organ trafficking.

In light of what we have seen in relation to what is happening in Xinjiang, it is clear that we cannot stand by and do nothing.

On the other hand, I must say that I feel a certain discomfort at the idea of assuming that, in this Parliament, we are at exactly the same point as we were in the previous Parliament and that, consequently, we must eliminate the clause-by-clause study of Bill S‑223, on the pretext that the exercise has already been carried out in a previous Parliament. I confess to some discomfort with this idea, especially as it is not entirely accurate to say that the bill is 100% identical to the previous one and that there is no difference between the two.

I'll give you an example, and it was our analysts who submitted it. The summary of Bill S‑204 stated that the proposed amendments to the Immigration and Refugee Protection Act gave the Minister of Citizenship and Immigration the power to remove and declare inadmissible to Canada a permanent resident or foreign national who engaged in activities related to human organ trafficking. According to the summary of the current bill, Bill S‑223, this power is now vested in the appropriate minister.

Why did we go from a power vested in the Minister of Citizenship and Immigration in Bill S‑204 to a power vested in the appropriate minister in Bill S‑223, if the two bills are identical?

[Senator Salma Ataullahjan, Senator]

Thank you.

Good afternoon, honourable members.

Thank you for giving me the opportunity to appear before this committee as a witness and as a sponsor of Bill S-223, an act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs).

Bill S-223 proposes to strengthen Canada's response to organ trafficking by creating additional Criminal Code offences in relation to such conduct and extends extraterritorial jurisdiction over the new offences. It also seeks to amend the Immigration and Refugee Protection Act to provide that a permanent resident or foreign national is inadmissible to Canada if the Minister of Citizenship and Immigration finds that they have engaged in trafficking of human organs.

Currently there are no laws in Canada banning Canadians from travelling abroad, purchasing organs for transplantation and returning to Canada. This is shameful, especially when we have joined most of the world in condemning the sale of organs and transplant tourism.

Over 100 countries, including the United Kingdom, Norway and Portugal, have passed legislation banning the trade of organs. Additionally, several countries have responded with legislation strengthening existing laws that ban organ trafficking and sales. There are a number of governmental and professional bodies with initiatives to regulate domestic and international organ transplantation and tackle organ trafficking, including, for example, the Council of Europe Convention against Trafficking in Human Organs.

In 2012, the World Health Organization claimed that an illegal organ was sold every hour. Overall, the number of illegal transplants worldwide is believed to be around 10,000 a year. It is important to note that this is a conservative number, as many illegal organ sales remain unreported.

Despite our inability to eradicate human rights violations around the world, we can enact change at home. It is entirely within our power to avoid complicity with transplant tourism within our own borders.

Sadly, an illegal organ transplant is not a lifeline for Canadians needing a vital organ. Instead, the recipient can often suffer from surgical complications, infections and poorer outcomes overall. These patients experience loss of the organ and death at higher rates than domestic organ transplant recipients.

Despite the growing body of information on the ramifications of transplant tourism, Canadians continue to travel abroad for commercial organ transplants. Doctors have reported that three to five people a year still arrive at St. Michael's Hospital having obtained a kidney in countries such as China, Pakistan or India. St. Paul's Hospital in Vancouver also reports seeing three to five returning organ tourists a year.

A study on the clinical outcomes of patients treated at an Ontario transplant centre after receiving organs through commercial transactions abroad found that most of the patients needed follow-up care on an urgent basis and some required lengthy hospital stays. This not only puts Canadian citizens at risk, but also contributes to burdening our already-struggling health care system.

To make matters worse, my entire allotted speaking time could be spent recounting story after story of victim organ donors, such as the missing six-year-old boy who was found alone in a field crying, with both of his eyes removed, presumably for their corneas. There was the young girl who was kidnapped and taken to another country for the sole purpose of harvesting her organs. There was the group of terrified women and men who were found locked inside an apartment, being held through deception and threats, waiting to be taken to a clinic to unwillingly have a kidney removed.

As a prosecutor in the Kosovo case said that organ trafficking is “the exploitation of the poor, the indigent, the vulnerable and the marginalized in our society”. He said that the recipients of those organs are wealthy, influential citizens from foreign countries and largely western countries, who should be held criminally responsible.

Trafficking in human organs is indeed a cruel harvest of the poor.

Thank you.

[The Chair, Liberal, Ali Ehsassi]

I call the meeting to order.

Welcome to meeting number 37 of the Standing Committee on Foreign Affairs and International Development.

Today's meeting is taking place in a hybrid format. Members are attending in person in the room, as well as remotely using the Zoom application.

I would like to take a few moments to provide some explanations for witnesses and members.

First, please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking.

Interpretation for those on Zoom is at the bottom of your screen, and you have a choice of either floor, English or French. Those in the room can use the earpiece and select the desired channel.

In accordance with our routine motion, I'd like to inform members of the committee that all witnesses have completed the required connection tests in advance of our meeting.

Pursuant to the order of reference of Wednesday, May 18, 2022, the committee will commence consideration of Bill S-223, an act to amend the Criminal Code and the Immigration and Refugee Protection Act.

With regard to the drafting of amendments, I would like to remind members to contact Alexandra Schorah, the legislative counsel, should there be any amendments to the draft or should there be anything that they would like to bring to her attention and ask for her guidance on.

Now it is my pleasure to welcome our two witnesses on this specific bill. We have the Honourable Salma Ataullahjan, senator; as well as Mr. Garnett Genuis, who is well known to you all, the MP for Sherwood Park—Fort Saskatchewan. You will each be provided five minutes, after which we will proceed with questions from the members.

Senator, you have the floor. You have five minutes. When you only have 30 seconds left, I will put this up to provide you with some context. Please do proceed. The floor is yours.

[Stéphane Bergeron, Bloc, Montarville, QC]

Mr. Chair, first, I must say that I'm a bit uncomfortable. We were supposed to hear from other witnesses on Bill S‑223. If we are planning to do that, I wonder if we wouldn't be better off thanking these witnesses and letting them go because the discussion on our colleague Mr. Genuis's motion seems to be dragging on.

With respect to the motion, and in response to Mr. Oliphant's remarks, with which I largely agree, I would say that it was appropriate for this committee to address the decision made by the Government of Canada. The decision did put us at odds with the Ukrainians, as well as the Germans and many other Europeans.

From the outset, I thought that it must not have been an easy decision for the government to allow this turbine to be returned to Europe. We wanted an opportunity to let the government explain its decision, which it did. For quite some time now, we've felt we should end this turbine study because there's no need to debate the issue any longer, for a number of reasons.

First, we've called Mr. Putin's bluff. Whether or not we return the turbine, we realized that the Kremlin had no intention of continuing to supply Germany or any other European nation via the Nord Stream 1 pipeline, which the Russians likely bombed themselves.

When she appeared before this committee, the German ambassador herself alluded to Canada suspending the permit given that the bluff had been called. The turbine was no longer relevant, and leaving the permit open when the government had planned to be able to revoke it is not only inappropriate, it's bordering on laughable, absurd, ridiculous.

For the sake of credibility, the committee must end its work on the turbine issue. If it were up to us, we would have stopped working on this a long time ago. It was our Conservative friends who insisted that we add witnesses. However, as Mr. Oliphant pointed out, the additional hearings did nothing to further fuel the debate.

It's very clear from our perspective. While controversial, the government's reasons for allowing the turbine to go back to Europe seemed to us to be justified in the circumstances. They are no longer justified, they haven't been for some time, and we should have come to an agreement on that long ago.

That's why, despite Mr. Oliphant's reservations, which I mostly agree with, we have to conclude that the government needs to suspend and revoke the permit, and we need to move on.

Again, I regret that this debate has somewhat dragged on and kept our witnesses waiting.

Because you momentarily refrained from speaking when I was talking about this, Mr. Chair, I would again suggest that we thank the witnesses, let them go and call them to appear at a later date.

Thank you.

Human Organ Trafficking

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Madam Speaker, I have two petitions I would like to present. The first is in support of Bill S-223. It is a bill that seeks to combat forced organ harvesting and trafficking. The bill has passed the Senate twice and the House once in its current form. It is currently stalled before the Standing Committee on Foreign Affairs and International Development, and petitioners hope it will soon be passed. The families of victims of forced organ harvesting and trafficking have now waited almost 15 years for Canada to pass this legislation. Let us end the delays and get this law passed.

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

If it's helpful, I will just make a comment on Bill S-223. I am of the view that this bill can be studied and proceeded with relatively quickly because it's been studied on multiple occasions by committees in the House and the Senate. This committee and the House previously studied this bill and amended it. The form in which we are receiving it from the Senate in this Parliament is identical to the form amended by a previous version of the House foreign affairs committee.

I'm a little biased. It's a bill that I am sponsoring, but this bill has gone through about five different versions and different Parliaments over 15 years. I think the argument for a somewhat more expedited timeline around hearings on this is that there's been extensive testimony and discussion in previous Parliaments.

While I would generally agree with the principle of the argument that Mr. Bergeron is making in the context of a new bill, I think the process makes sense in the context of a bill that, frankly, every time it's been voted on, everybody has agreed to. It has nonetheless not managed to complete its legislative journey in 15 years.

[The Chair, Liberal, Ali Ehsassi]

Fair enough. We could just proceed with that.

There is one more issue, and we don't necessarily have to do this in camera. I just want to confirm that it is the will of the committee that in the context of Bill S-223, the deadline for the submission of amendments to the clerk of the committee be no later than noon on Thursday, November 10, 2022.

Is everyone in favour? Are you unanimous on that?

Go ahead, Mr. Bergeron.