Bill S-224

An Act to amend the Criminal Code (trafficking in persons)

This enactment amends the Criminal Code to specify what constitutes exploitation for the purpose of establishing whether a person has committed the offence of trafficking in persons.

Justice and Human Rights

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Mr. Speaker, I have the honour to present, in both official languages, the 15th report of the Standing Committee on Justice and Human Rights in relation to Bill S-224, An Act to amend the Criminal Code regarding trafficking in persons.

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

[Nathalie Levman]

Well, that's true of the law right now. The appellate case law is quite clear that proof of actual fear isn't necessary. In fact, paragraph 15 of the Sinclair decision goes over a number of different factors that the courts ought to consider when determining whether the existing legal test is met. Certainly, in the world of Bill S-224 plus the Bloc's amendment, what the court would need to hear is whether the victim subjectively feared for their safety. That's how I read the Bloc's amendment, yes.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

That would require the victim to give evidence as to her or his state of mind. Is that correct? I understand, under the current legislation, and certainly under Bill S-224 without amendments, that would not require the victim to come to court to give evidence as to his or her state of mind.

[Nathalie Levman]

Yes, that is one of the appellate cases, but there are a number of them now not only in Ontario but also in Quebec and in B.C., and they all follow the Sinclair reasoning, so we know it is an objective test.

The difference between what's in the code now and what is proposed by Bill S-224, including with the Bloc's proposed amendment, is the bill would change the legal test. The legal test—the test that would need to be proved—would no longer be whether a reasonable person in the victim's circumstances would believe that their physical or psychological safety would be threatened if they failed to do what was being asked of them. The legal test would be whether the accused caused the victim to provide their labour or services through one or another of the illicit means.

Subsection (2) in the Bloc's amendment is an interpretive provision. It's not a legal test. In determining whether that legal test would be met if it was law, the court would then look at whether the victim subjectively feared for their safety. At least, that is the way I'm reading this amendment.

The fear for safety in the Bloc's amendment is different from what is currently in subsection 279.04 (1), which is an entirely objective test, meaning that the Crown does not have to prove the victim in that particular case actually experienced fear. Here, that would be required, and the judge would consider whether the victim experienced fear. Then, I assume if the judge or the jury were to find that the victim did experience fear, that would weigh in favour of the legal test being met.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I hope you can give me a little bit of latitude because it's hard to talk about the amendments without talking about the bill as a whole.

We heard two different perspectives from witnesses. One of those I found very persuasive. That was that this bill doesn't actually do anything that would make the struggle against trafficking more effective, that it won't actually provide more resources for targeted trafficking units and law enforcement. It won't actually provide more resources for those who are fleeing trafficking situations in the community. Those who have worked with trafficking issues know that those are the two most important things we can do to help combat trafficking.

In casting a broad net as the original bill does, we risk making the mistake that we've been warned against in all of our discussions about sex work. When you define something too broadly, you capture a lot of things that ought not be captured. I think Bill S-244 defines trafficking in such a way that many practices that are not in fact trafficking would get included under the bill. The danger there is when you make everything trafficking, you miss the real trafficking and you miss the most serious parts of the trafficking offences.

For that reason, I can't see that Bill S-244 is a useful bill. I understand Mr. Fortin's attempt to fix those problems. I think it's a goodwill attempt that he's put forward here in these amendments.

My problem at this point is that I know that I've received a petition signed by more than 60 organizations asking us not to proceed with this bill. They have not been consulted on anything that's being suggested by Mr. Fortin. I would be hesitant to vote for these kinds of amendments without hearing from witnesses on the specifics of this. I think we would be better off as a committee defeating the amendments because we haven't had input on the specifics of them, and then defeating the bill or recommending that the House not proceed with the bill in the future.

For that reason, Mr. Fortin, even though I think it's a very good effort to fix the bill, I won't be supporting your amendment and I won't be supporting the bill.

Thank you.

[Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Department of Justice]

Thank you, Chair.

I do have a comment to make on both 2(a) and 2(b). But I thought I would just back up so that I can make sure that we're all on the same page.

My reading of this amendment is that it would still replace the existing legal test, the existing definition for exploitation, with the one proposed by Bill S-224, which focuses on causing another person to provide labour or services through certain specific illicit means. The Bloc's amendment would further specify what “other similar act” means in terms of taking advantage of another person's vulnerability.

Sub 2 is more like an interpretative clause. There are factors as I understand it that a court could consider when determining whether or not that legal test is met in subsection 1. The first factor is whether or not the victim fears for their safety or the safety of a person known to them. While that is a little bit similar to the existing test in 279.04 (1) it differs because it's entirely subjective, whereas the current legal test in 279.04 (1) is an objective test. We know from appellate case law that it wouldn't determine whether or not the legal test was met but it would be something that a court could factor in, as would paragraph 2(b).

This is the one that causes me a little bit of consternation because it refers to consent. I'd like to bring the committee's attention to what is currently in subsections 279.01(2) and 279.011(2), “No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid." That is consistent with what the previous speaker said, which is where these illicit means are used, the law says it doesn't matter whether someone gave what courts call an apparent yes. The coercive practices used amount to human trafficking.

I would just point that out to you as a legal and a technical matter and a potential inconsistency between 2(b) and existing subsections 279.01 (2) and 279.011 (2).

Thank you.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

I understand the intent of Bill S‑224, but I found it a bit incomplete in its proposed form. We suggest some amendments, which you have received, and we would be prepared to vote in favour of Bill S‑224 if they were adopted.

First of all, our amendments pertain to the proposed paragraph 279.04(1)(b), which says “any other similar act”. That seems somewhat broad to me. So we want to limit the scope by saying that it has to be an act that takes advantage of the person's vulnerability. Thus, it should be established not only that the person who is accused of exploiting someone has committed an act similar to those mentioned, but also that he or she has taken advantage of the person's vulnerability.

The bill also proposes to repeal subsection 279.04(2) of the Criminal Code, which we thought was a bit bold, since it would eliminate, from the burden of proof, the need to show that the victim was, in a way, harmed by the act. We are proposing to add a criterion that says the victim fears for their safety. It is still different from the provision currently in the Criminal Code, but it would ensure that the Crown has a minimum of evidence against the accused. Our first criterion is that the victim fears for his or her safety.

The second criterion we propose regarding paragraph (b) is that the victim cannot give informed consent given their age or any aspect of their personal situation, including their financial or psychological situation. The victim is often a vulnerable person, either because they are too young, or because they are financially dependent on the person who is exploiting them, so to speak, or because they are simply under their psychological control.

We think those are important criteria. Before a person is convicted of a crime as serious as this one, it seems to us that the Crown should discharge a minimum burden of proof. We propose that you adopt this amendment as it is worded.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 73 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on March 22, the committee is meeting in public to continue its study of Bill S-224, an act to amend the Criminal Code, trafficking in persons.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I'd like to take a few moments for the benefit of the witnesses.... Actually, I'll pass. I think you are all well experienced, and so are Mr. Caputo and the analysts online. I think we're good to pass on Zoom instructions.

I welcome the officials from the Department of Justice, who will help us by answering technical questions about this bill and the amendments. We have with us Nathalie Levman, senior counsel, and Ellen Wiltsie-Brown, counsel, both from the criminal law policy section.

Welcome, both of you.

We're ready to start clause-by-clause. I'd like to provide members of the committee with some reminders on the process.

Members should note that new amendments must be submitted in writing to the clerk of the committee. During debate on amendments, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment.

All of you received the agenda and the amendments package again yesterday. Let's now proceed with the clause-by-clause study of the bill.

I will now call clause 1 and Bloc amendment 1, number 12547306.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Thank you.

I'll stay with Ms. Way.

It seems that one of the goals—perhaps not the main goal—of this Bill S-224, this amendment, is to make it easier to obtain convictions for trafficking offences. I'm just wondering, Ms. Way, if you could comment on whether that would be the case. Also, what are the other factors that might be causing lower rates of convictions for this crime?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

Bill S‑224, which I assume you read, replaces subsection 279.04(1) of the Criminal Code. The proposed new subparagraph 279.04(1)(b) introduces the notion of “any other similar act”. Do you think it's too vague, or is it a good addition? I'd like you to give me a quick answer; there's only 30 seconds left.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Ms. Way.

If I could follow up with you, we also know that the Criminal Code broadly interprets the human trafficking provisions to hold to account those who are trafficking and those who have also engaged in psychological forms of coercion.

Maybe this is for all the witnesses, but we'll start with Ms. Way.

Can you please give us any ideas for how could we ensure that prosecutors keep the tools that are currently in place if Bill S-224 was to pass?

[Wendy Gee, Executive Director, A New Day - Youth & Adult Services]

I want to thank the standing committee members for the opportunity to speak today about Bill S-224, an act to amend the Criminal Code, trafficking in persons, to remove the unfair burden placed on exploited individuals who must prove there was an element of fear in their abuse to obtain a conviction in court.

My name is Wendy Gee, and I am a mother of a daughter who was sex-trafficked as a teenager here in Ottawa. In my professional life, I'm the executive director of a charitable organization that provides long-term restorative housing and programming for young women who have been sex-trafficked throughout Canada. I also chair the Ottawa Coalition to End Human Trafficking, a steering committee of 40-plus frontline human trafficking organizations in Ottawa and the region.

When young people come to A New Day, they want to move forward and start their recovery. Many have spent months, if not years, living with sexual violence and physical abuse. The result is horrific trauma, PTSD, and addiction challenges. They have missed most of their formative adolescent lives, which should consist of attending school, making friends and learning life skills that prepare them for adulthood. Instead, they're forced into a life of sexual violence, 10 or more dates per day with strangers who have purchased them for their sexual fetishes, and physical violence, beatings and torture if they do not perform and make money for their traffickers.

Amid this deranged lifestyle is a person, a trafficker, who controls every movement of that victim. This victim becomes dependent on their trafficker for everything from tampons and toothpaste to food and clothing. They develop a trauma bond, where the victim now believes that the trafficker is their protector. They may fall in love with them and feel that the trafficker holds their best interests at heart, including keeping them safe.

The victim is indoctrinated to believe in an “us against them” mentality, meaning the trafficker and the victim are together against the rest of the world, which wants to pull them apart. Is this logical reasoning? Of course not, but a trafficker knows his business, which is manipulation and coercion.

A trafficker will use any tactics to keep making money from their victim, even if that means keeping their victim in love with them. You can understand how challenging it is for a victim to come forward and provide a statement to the police. Even though their situation was horrific, the victims still had their basic needs met, and they found it challenging to believe they were being exploited.

My daughter told me that she loved her abuser, that she only did what she did to help him because he had an addiction. She thought she was complicit, and consented. Now she knows this is not true. She still has days when she struggles with what happened, and very rarely will she discuss it. Honestly, I can't blame her.

The young people I work with say the same thing. They want to move on. They don't want to discuss it anymore because it hurts. They feel shame. They feel stupid. And they believe they consented to the situation.

Throughout my tenure as the executive director of A New Day, only two young women came forward and provided a statement to law enforcement about their trafficking situation. It takes incredible strength to do so. They have to relive their sexual abuse, addiction and violence, and the shame of a horrific lifestyle they were forced to endure. They know that if they provide a statement, they will face their abuser in court and all those repressed feelings will overwhelm them. They also know that they will have to explain why they participated in a lifestyle that put them at risk and why they simply didn't leave. Why should a victim have to explain why someone abused them?

The burden of someone's violent, coercive behaviour and control should not be placed on the victim who has suffered. I see first-hand what a trafficker's violent behaviour leaves behind: broken noses and bones that were not medically set back in place, fertility issues because of botched abortions, multiple miscarriages, chronic STIs, not to mention the violence of repeated and daily...let's call them “rapes”, because that's what they are. There are also nightmares, trust issues, low self-esteem and self-worth, depression and anxiety, and self-harm in the form of cutting, where wrists, arms, inner thighs, vaginas and necks have been repeatedly slashed to release the mental pain they're enduring, or they can't do it anymore and they return to the life because they feel that's where they belong—overdosing on drugs, and death.

Eliminating the burden of proving they were fearful while they were exploited tells a victim that we believe them, that what they have endured was not a measure of their worth or value, was not indicative of the type of treatment they deserved and was not the result of poor decision-making, and that their victimization will not be continued by our justice system.

Thank you.

[Casandra Diamond, Founder and Executive Director, BridgeNorth Women’s Mentorship & Advocacy Services]

Good afternoon members. Thank you for inviting me to share with you today. It is a privilege to be here and to have the opportunity to speak not only as the founder of BridgeNorth, but also as a survivor.

I would like to share why I believe Bill S-224 would help trafficked persons.

It would combat trauma bonding, a known psychological impact that people who are trafficked experience as a result of a trafficker’s manipulative tactics. Under the proposed amendment, the requirement to prove a reasonable expectation of fear would be removed.

When I was trafficked, I was not afraid all the time, but when I was, it was overwhelming horror. For example, I recall a time when I overheard my trafficker speaking to one of the girls on the phone whom he sent out after a 13-plus hour shift to a so-called after party. I could hear her in the background saying my trafficker’s name. She was crying, sobbing, and begging for him to send somebody to come to get her out of there.

There were approximately eight to nine men in that room. They were taking pictures. They were recording, and they were using her in the most violent of ways. They gang raped her, and she called him, “My boyfriend, my trafficker”. You see, she was no longer afraid of my trafficker anymore. She saw him as someone who could offer help, and who could keep her safe. It was lost on her that he was directly responsible for the unimaginable sexual violence she suffered at the hands of so many men that night.

She called him and asked, “Could you make them stop?” His answer was, “It will be over soon.” This woman didn't fear my trafficker, or her trafficker anymore. She feared the customers who were doing all of those brutalizing things to her.

This woman’s story, though, is not unique. I have a similar story of my own, and so do the many whom we serve today. This is why removing the requirement to prove reasonable fear from the definition of exploitation is so very important. The many girls I know who have gone to court have said that proving fear, as is currently required, would hinder their from coming forward.

In trauma bonding, we start to view the trafficker who facilitates violence as someone who is offering help, and this has been proven over and over again. When many of the girls I know see their trafficker in court, they feel love towards their trafficker, and all of their feelings of fear just go out the window because of trauma bonding.

Bill S-224 would support victims by reducing the burden they experience when testifying and trying to prove they feared their trafficker. The proposed amendment would eliminate the difficult requirement that the Criminal Code currently places on prosecutors to show that there was reasonable basis for the survivor to fear for her safety. This would account for situations, like mine, where my trafficker had manipulated me to see him as someone who offered safety and protection, rather than the one who facilitated brutal sexual violence against all those he trafficked, me included. This bill would support victims in coming forward in the court process and reduce barriers, which would allow more victims to feel safe to share their allegations over time.

Bill S-224 would allow us to assist people who are trafficked in licensed systems, whether for sex, labour, or organs. Based on my knowledge and experience in the sex industry, girls are being exploited from region to region, municipality to municipality, and in massage parlours and the like across the GTA. These women are forced to sell sexual services six to seven days a week.

Typically, there is one girl who monitors the phone and who speaks more English than any of the other girls. She is tasked with supervising the other girls who are also being trafficked there. They all live together in the same house. They go almost everywhere together, commuting together and eating together, as they have extremely limited other options.

This tactic can be related to debt bondage, an all too common method traffickers use to reduce one's ability to leave. The girls in these situations are being controlled, directed, and coerced by third party traffickers to engage in these brutally dangerous situations with men who purchase sex, while hiding behind the veneer of offering safety, security and a licensing system that keeps them bonded to their traffickers.

The proposed amendment would help people who are trafficked into Canada from another country, such as those who see their trafficker as someone helping them with language interpretation or helping provide their basic needs, like food and shelter. It will help people who are the most vulnerable in society who are being trafficked and were targeted due to their cognitive impairment, neurodivergence or other impairments that impact their ability to understand and process fear.

In summary, Bill S-224 would make trafficking in persons easier to prove as survivors would not have to prove their state of mind, which is inherently subjective. It would provide survivors with fewer barriers to seeking justice. It would remove the tool of manipulation from the trafficker's arsenal, meaning that the trafficker could not hide behind a carefully manufactured lie that he offers to the women that he exploits, even if he succeeds in convincing his victims of that lie. Very importantly, it's trauma-informed and it's “survivor first” legislation.

Canada's trafficking survivors deserve better than what we currently have, and Bill S-224 is that better.

Thank you for your time. I look forward to your questions.

[The Chair, Liberal, Randeep Sarai]

I'll make a couple of comments for the benefit of witnesses. Please wait until I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking. For interpretation for those on Zoom, you have the choice at the bottom of your screen of English, the floor or French. For those in the room you can use the earpiece and select the desired channel. For members in the room, if you wish to speak, please raise your hand. For those on Zoom, please use the “raise hand” function.

The clerk and I will do our best to accommodate you in the rightful order.

Welcome, everyone. We are studying Bill S-224, an Act to amend the Criminal Code, trafficking in persons.

For today's meeting we have with us, via video conference, Dawne Way, barrister, and Wendy Gee, executive director, A New Day Youth and Adult Services. In person, we have Casandra Diamond, founder and executive director, BridgeNorth Women’s Mentorship and Advocacy Services.

We will go to you, Ms. Diamond, for five minutes. I have a little cue cards, so could you just pay attention when you are about 30 seconds away and then when your time is up, I won't have to interrupt you?

Perfect, over to you, Ms. Diamond.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 72 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order adopted in the House on March 22, 2023, the committee is meeting in public to continue its study of Bill S-224, an act to amend the Criminal Code, trafficking in persons.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23. Members are attending in person and remotely using the Zoom application.

Before I go into that, I believe I have consent from everyone, even though the bells are ringing, that we'll go until maybe 10 minutes before the vote. That way we'll get all of the witnesses to speak for their five-minute time and then we'll do the round of questions after the vote, if that's okay.

Is that okay? Good.

Yes, Mr. Fortin.