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.

[The Vice-Chair, Conservative, Rob Moore]

Is there any discussion on that?

We are scheduled to hear Bill S-224 on Monday, and then we can do clause-by-clause on Wednesday.

Is there any issue with that? Is there any discussion?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

With respect to Bill S-224, we have witnesses next Monday. My suggestion would be that we do clause-by-clause on Wednesday.

In the interim, can we have the deadline for the submission of amendments at midday on Tuesday? Is it too tight...or Monday at 5:30?

[Sandra Ka Hon Chu]

Thank you.

As we noted in our joint submission, I would like to reject the bill in its entirety. In 2012 there was a subjective requirement with regard to human trafficking. That was changed to this reasonable person standard because of the notion that it was too hard to convict if you required complainants' testimony.

I can't emphasize this enough: You do not require complainants' testimony under this current version of the law. Reject Bill S-224 in its entirety. You need to support, as Elene said, non-carceral forms of safety. People do not require more policing. We put hundreds of millions of dollars into human trafficking initiatives, and we have allowed more police and prosecutors to flourish in this anti-human trafficking world, but that hasn't translated into more safety. We care about the safety of migrant workers and people who are experiencing exploitation and abuse, but you need to support them so they can obtain decent housing, access to income supports, access to child care, access to housing—all the things that, as I'm sure the other witnesses will agree, are helpful in terms of supporting people.

I also want to provide my time to Elene to share more of the experiences of Butterfly, their first-hand experiences of policing in the context of human trafficking.

[Dr. Janine Benedet]

I'll just say that while I appreciate very much the work that Ms. Wood is doing, I certainly don't agree with her analysis that 80% to 90% of the sex trade involves people who are not exploited. Whether a third party is involved or not, there's still a considerable amount of exploitation that typically pushes people into prostitution. That's the reason we have such an overrepresentation of indigenous women and girls in the sex trade.

In direct answer to your question, which is, “What else can we do?”, here I would encourage the committee to look at some of the initiatives that have been brought forward by member states in Europe. In particular, the Organization for Security and Co-operation in Europe, the OSCE, has a bureau to combat the trafficking of persons. It does a lot of really excellent monitoring. I would say that of all the member states, France is the country that by far has gone the furthest with this. It's really about bringing our domestic laws into line with our international obligations. We have an international obligation to punish human trafficking, and we have a definition internationally that speaks about the exploitation of a condition of vulnerability.

My worry with Bill S-224—it's an improvement, certainly—is that still we've just moved the focus on coercion, physical force, fear and threats into the definition of exploitation. We got rid of the reasonableness requirement—that's a step in the right direction—but the question will be, well, how do the courts interpret “any other similar act”? Are they going to recognize threats to report you for welfare fraud? Are they going to recognize threats to disclose pornographic photographs to your family members? Are those going to be seen as forms of coercion? Are they going to recognize that kind of emotional manipulation? We had a notorious trafficker in Vancouver who bought a small dog. If the girls were good, they got to take the dog for walks. If they were bad, he would abuse or threaten to abuse the dog.

These are all very effective techniques for keeping women in line. We just have to make sure we're not narrowing the definition in a way that's artificial. To me, the way to do that is to look to our international commitments.

[Dr. Janine Benedet]

Just to be clear, as I said in the beginning, this applies only where there's a third party involved. Prostitution, the commercial sex trade, can be very exploitative even without a third party involved. Many of the circumstances that drive people into prostitution are hallmarks of exploitation, but what we have here is a situation in which you have to prove that the individual knowingly and intentionally did one of a number of listed acts that caused another person to enter into, or to remain in, the sex trade. There's already a considerable amount of actus reus or mens rea before we even get to the question of whether the circumstances of those acts are exploitative.

The proposed definition in Bill S-224 says it is a situation in which you cause that person “to provide or offer to provide labour or a service”, and you do so with “the use or threatened use of force...another form of coercion...deception...fraud, the abuse of a position of trust, power or authority, or any other similar act.” I think it's important to understand what we're talking about here and what has to be proven. This is still not going to be an easy offence to prove, but it's one that will be simpler and more straightforward, and it involves less judgment of whether victims feared for their safety and indeed whether those fears were reasonable.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In that case, do you think that, if we remove the notion of threat to safety and broaden the definition of exploitation, Bill S‑224 will reinforce the perception that sex work is a form of exploitation?

[Sandra Ka Hon Chu]

Thank you, Elene.

My name is Sandra Ka Hon Chu. I'm co-executive director of the HIV Legal Network.

I have two main points to add about Bill S-224. First, the removal of the threat to safety requirement will capture cases where no exploitation exists. Proponents of this bill describe difficulties obtaining direct evidence from a potential complainant, but the test today is already an objective one and does not require a complainant's testimony. Removing this requirement merely gives more power to police and prosecutors to define, and often wrongly define, violence and exploitation for communities. In the case of sex work, violence and exploitation are assumed. For example, Professor Roots has documented how police pressure sex workers to take on the trafficking victim label despite their rejection of this label. Without the threat to safety requirement, determinations of coercion or exploitation are made through biased perspectives of sex work.

Second, as Elene described, the amendments risk capturing all third parties in sex work, including those who provide supportive services to sex workers. Butterfly and the HIV Legal Network have been consistently told by law enforcement that any third party involvement of sex workers suggests exploitation that warrants investigation. However, researchers have documented how police and prosecutors insist that pimping is a major problem, focusing their attention on young, poor, racialized men, and particularly Black men, despite sex workers' more nuanced accounts of third parties as protectors and intimate partners. As Elene mentioned, many sex workers also take on third party roles. Migrant, Asian and other racialized communities rely on family members and community for work support, but they are often swept up in anti-trafficking efforts.

Butterfly members have been charged with third party sex work offences for merely assisting with client communication, scheduling, advertising and screening. While the punishments for third party sex work conviction are already severe, third parties convicted of human trafficking are subject to a four-year mandatory minimum sentence, which could result in the removal of status and deportation for those who are not Canadian citizens.

If you truly wish to support people at risk of exploitation and abuse, you must listen to sex workers and reject Bill S-224 in its entirety; fully decriminalize sex work by removing all sex work-specific criminal offences; remove immigration regulations that prohibit migrants from working in sex work; stop surveillance, raids, detention and deportation of sex workers; support non-carceral forms of safety, such as decent work, health care and housing for all; and invest in grassroots communities so that they can support each other.

Thank you.

[Elene Lam, Executive Director, Butterfly: Asian and Migrant Sex Workers Support Network, Canadian Alliance for Sex Work Law Reform]

Hi and good afternoon. I am Elene Lam, executive director of Butterfly. We work with over 5,000 migrant sex workers in Canada.

I am shocked that the committee did not consult any migrant rights, racial justice or sex workers who are directly impacted. Many scholars on violence again women and racial justice and human rights organizations have already shown their opposition to this bill, and have shown concern that they are not having the opportunity to tell you how this bill is harmful.

The claim is that the bill will help charge traffickers and bring them to justice. It will not. As Sandra will explain, this bill will lead to more human trafficking charges laid against migrants, Black and racialized people, sex workers and those who are providing support services to others. It will take away their livelihood, make them live in fear and drive them to work even more underground.

The concern was already expressed by some of the committee members that this bill does not differentiate sex work from human trafficking. It cannot differentiate as to whether people have asked another person to organize the work or whether they are being forced or exploited. Both of them will be charged with trafficking, no matter the nature of the relationship. It is wrong to assume that all third parties are exploiting and human trafficking. Poor, racialized migrant sex workers rely on community support to stay safe. They help each other access transportation, food, medical care, translation and a safe work environment. If Bill S-224 passes, anyone who helps sex workers stay safe, particularly Black and migrants, will be charged as human traffickers. People will be too afraid to be associated with sex work, and that will make sex workers more isolated and vulnerable.

Advocates against sex work have long used anti-human trafficking campaigns and policies to further their racist anti-migrant agenda. They promote moral panic, racial discrimination and hate against the sex industry. By calling for the criminalization of sex work and increased policing, the goal of anti-trafficking campaigns is often not ending trafficking but ending the sex industry. It's not protecting sex workers but ending sex work.

You are all here today because you care about the rights and safety of vulnerable people. You should listen to the community and what many racialized, Black and migrant sex workers will tell you: “Don't take away my agency. We cannot let Bill S-224 pass. Bill S-224 does not protect us. It puts us into danger.”

I will now give Sandra the time to explain more.

Thank you.

[Holly Wood, Researcher and Educator, BRAVE Education Foundation]

Hi there. My name is Holly Wood, and I'm representing Brave Education for Trafficking Prevention.

I'm a Master of Legal Studies student at Carleton University, currently finishing my thesis focused on police responses to sex trafficking and sex work in Ontario. I hold a Bachelor of Arts (Honours) in Law from Carleton.

I'm a nationally licensed human trafficking prevention educator with Brave Education, where I assist with building and delivering sexual exploitation prevention curricula for grades K to 12 and adults. I serve as vice-chair of the Ottawa Coalition to End Human Trafficking and chair of the advocacy committee. I have worked for the Ontario Ministry of Children, Community and Social Services with foster care youth who are at risk of or actively being trafficked. I've worked at the Elizabeth Fry Society of Ottawa with women who were criminalized as a result of being trafficked, and I have worked in criminal defence; the firm I worked for successfully defended a human trafficker.

For my first example in support of Bill S-224, I look to the experience of a survivor whom Brave has worked with. Out of respect, I will speak of this survivor anonymously.

As a 19-year-old girl, she was trafficked by a man she loved and who she thought was her boyfriend. She had a relationship with her trafficker. He trafficked her in five cities across Canada. After years of being trafficked, she learned what trafficking was. She learned that she had, in fact, been trafficked.

She pursued legal action against her trafficker. When asked to attend court to provide a victim impact statement, she got on the stand in the courtroom in front of her trafficker. She looked out into the courtroom and locked eyes with him. She immediately felt feelings of love and dependence flood her body. She ran out of the courtroom and did not testify, because regardless of the fact that she knew she had been trafficked, she was so in love with him that seeing him in that courtroom triggered an emotional response of love, not fear. She was not afraid of her trafficker. She was in love with him. To this day, she tells us that she would go back to her trafficker in an instant, because he made her feel more loved than her family and friends did.

She is a prime example of why this bill is so important. Even when victims of trafficking know they have been trafficked, the feelings of love and attraction to their traffickers do not disappear. The effects of the manipulation, coercion, love bombing, etc., do not end just because a survivor has been pulled out of their situation. Hence, it is important, more now than ever, to remove the requirement to prove fear, so that survivors of human trafficking can pursue justice without the unfair burden of proving fear and without having to worry about the years of an emotional relationship with their trafficker getting in the way of securing a conviction for the crime they endured.

Human trafficking and exploitation can affect anyone, not just women and girls. For my final example, I will look into my colleague Ena Lucia Mariaca Pacheco's published research on male exploitation and familial trafficking. According to Ena Lucia's research, there can be several reasons that men or boys may be hesitant to show fear after being trafficked or exploited.

Societal expectations in Canada place emphasis on men being strong and tough and suppressing their emotions. Therefore, many men and boys may feel pressure not to show that fear or weakness. They may believe that expressing fear or vulnerability is not productive or helpful, and they may choose to internalize their emotions to maintain a sense of control or to try to forget about their trauma. Male victims may experience feelings of shame or embarrassment, judgment or stigmatization if they show that they are fearful or unable to protect themselves from their male or female perpetrator.

Therefore, by taking out fear and showing male victims that it is okay to finally speak out about their exploitation, hopefully we will see an increase in disclosures and convictions. It is important to approach this bill with empathy and understanding, recognizing that in any response to trauma, you are shaped by a complex interplay of personal, cultural and societal factors. Fear can look like different things to different people and, in many cases, is not what the current provision deems fear at all.

I thank the committee, Mr. Colin Carrie and all other parliamentary bodies for paying long-overdue attention to the devastating crime of human trafficking. Bill S-224 is one of many steps we must take to protect our communities and, most importantly, those affected by the crime of trafficking.

The fact of the matter is that our current laws in Canada are not evolving at the same pace as the crime of human trafficking is. In the anti-human trafficking movement, we have a common saying—it is a legal system, not a justice system.

For me and my team at Brave, Bill S-224 can change the narrative for our legal system and make justice more accessible for victims of human trafficking. Most importantly, Bill S-224 will reinforce that trafficking of individuals in Canada is not acceptable, will not be tolerated and will be punished accordingly, in line with the rights and dignities of victims who, with the help of Bill S-224, will feel more inclined to stand up to their traffickers in a courtroom in order to protect current and future generations.

Thank you.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 70 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the House order adopted on March 22, 2023, the committee is meeting in public to begin its study of Bill S-224, an act to amend the Criminal Code in relation to 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 make a few comments for the benefit of the witnesses and members.

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're not speaking.

To access interpretation, for those on Zoom, you have the choice at the bottom of your screen of either floor, English or French audio. For those in the room, you can use the earpiece and select the desired channel.

A reminder that all comments should be addressed to the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function.

The clerk and I will manage the speaking order as best we can. We appreciate your patience and understanding in this regard.

Welcome everyone.

We are studying Bill S-224, an act to amend the Criminal Code in relation to trafficking in persons. To help us with the study today, we have Dr. Janine Benedet, QC, professor of law at the Peter Allard School of Law at UBC. We also have, from the Brave Education for Trafficking Prevention foundation, Holly Wood, researcher and educator, also via video conference; and we have Sandra Ka Hon Chu from the Canadian Alliance for Sex Work Law Reform.

I apologize. I think we had to cancel you last time. Thank you for rescheduling and coming back. Things in Parliament happen, and we have to adjust from time to time, but thanks for being here.

You'll each have five minutes to deliver opening remarks, and then we will have questions coming from the members. Hopefully anything you might have left out you can answer within that time.

We'll begin with Dr. Benedet, please, for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Mr. Carrie, thank you for coming to present your bill to us this afternoon.

Bill S‑224 repeals the interpretive provision providing a non-exhaustive list of factors such as a threat, deception or abuse of power that the court may consider in determining whether exploitation or intent to exploit has occurred. There's existing case law on this, namely the Sinclair decision, which dates back several years. The current definition of exploitation was included in the Criminal Code in 2005. That's 17 years of case law.

What will become of all that after your bill passes?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Your bill deals with a definition of exploitation. I take it more as being presented as a clarification around the definition. The current definition of exploitation in the Criminal Code focuses on the impact of the trafficker's conduct on a reasonable person in the situation of the victim. The current definition has about 17 or so years of case law associated with it.

Can you give this committee some thoughts on what you think will happen to the existing case law as it relates to defining what exploitation is with the passage of Bill S-224, if it passes?

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Mr. Chair.

Today I will be speaking to Bill S-224, a non-partisan bill that passed unanimously in the Senate on October 6, 2022.

This bill had its start as Bill C-461, which I was honoured to present in the House on June 17, 2019. Unfortunately, it died on the Order Paper.

I want to thank Senator Ataullahjan for taking up the cause and successfully stickhandling this through the Senate. I want to thank Arnold Viersen for his unending commitment to ending human trafficking. I also want to thank an amazing community of supporters, victims, moms and dads, survivors and many other stakeholders.

I want to share the experience of a survivor that I heard recently at a forum organized by the All Party Parliamentary Group to End Modern Slavery and Human Trafficking. Alexandra spoke to us about her experience, saying:

I walked into the commercial sex industry at 20 years old. I was an adult, over the age of consent and able to make informed decisions for my own body. I believed that I was taking control of my sexuality by using it for personal gains. I never thought of my boyfriend as a pimp. And I certainly never considered my situation to be trafficking. It wasn't until 10 years after my experience, that I was informed I was trafficked.

She went on:

This is the reality you need to understand: I made choices and I was manipulated. I believed I was a consenting, empowered adult and I was exploited by my boyfriend.

Had the police intervened in Alexandra's situation under our current laws, it's unlikely her case would have fit what they look for, as it's focused on the victim's mindset, and she wasn't afraid.

The purpose of the bill is to align Canada's law so that it is consistent with international law aligned with the Palermo protocol—a protocol that we as a country ratified in 2002—and properly places the focus on the actions of the trafficker. It will facilitate convictions against those who participate in human trafficking in Canada by amending the Criminal Code's definition of exploitation and human trafficking offences, so that the Crown is no longer required to prove a reasonable person in the victim's circumstances feared for their safety or the safety of someone they know. This will put the onus on the perpetrator rather than the survivors.

Our current code reads as follows:

279.04(1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all [of] the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

In contrast to our definition, the Palermo protocol views human trafficking as having three distinct elements: the act, the means and the purpose. Human trafficking is defined as the act of recruiting, transporting, harbouring and receiving a person by means of coercion, abuse of power or deception for the purpose of exploitation. This is not reflected in Canada's Criminal Code.

Colleagues, we have a serious lack of convictions here in Canada. The latest statistics from Stats Canada are really compelling. They were released in May 2021 and showed the serious challenge that police face when trying to get a conviction, and it's only getting worse. When examining court decisions from 2018-19 by charge, overall, the vast majority—89% of human trafficking charges—were stayed, withdrawn, dismissed or discharged. Less than one in 10—seven per cent—of the charges resulted in a guilty finding.

Now, I want members to pause and to think about the situation in Canada for victims of human trafficking. A crime is committed. There is no debate as to whether or not the acts have occurred, yet under Canadian law the victim is required to prove fear in order for a conviction to occur.

To emphasize the absurdity of the situation, let's apply this requirement to another crime. Imagine that someone I know comes up and stabs me. How would I prove fear in that situation? Would the offender be convicted if there were proof of their crime but fear could not be proven? I ask you, why do we treat the crime of human trafficking so differently? Human trafficking is a scourge, mostly on vulnerable young people and their families, across Canada.

This overdue change is consistently brought up in conversations by stakeholders across the country and internationally. Vulnerable young people often think of their abuser as their friend and think their abuser cares for them and loves them. Often, the Crown's case depends on the victim's testimony, the only evidence against the trafficker. Without the victim's testimony, there is no case. In Canada, it sometimes takes years to come to court. There, the victims can be victimized again and again. Usually a conviction is not obtained.

The Palermo protocol was adopted in November 2000. It has 117 signatories, including Canada, and more than 22 years have passed, yet this small but important change is still not reflected in our Criminal Code.

Human trafficking is on the rise. Traffickers seek out young people dealing with substance abuse, traumas, addictions, abuse and homelessness. Women and girls, indigenous children, new immigrants, persons living with disabilities, LGBTQ2+ persons and migrant workers are among the most at-risk groups.

We need to give victims every tool possible to allow the return of their dignity, their humanity. Bill S-224 is another tool, and it is a long-overdue change.

Thank you, colleagues, and I look forward to your questions.

[The Chair, Liberal, Randeep Sarai]

I will call this meeting to order.

Welcome to meeting number 67 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on March 22, 2023, the committee is meeting in public to begin 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.

Since our witness is a member and he already knows how to use the Zoom and interpretation features in the House—and I don't think there's anybody externally who does not know—I won't go into those.

I would like to welcome Dr. Colin Carrie, member of Parliament for Oshawa, the sponsor of Bill S-224, for the first hour of our meeting.

Welcome to the committee, Mr. Carrie. You have five minutes to present if you have opening remarks, and then we will go to questions from members.

Criminal Code

[The Deputy Speaker, Conservative, Chris d'Entremont]

Pursuant to order made on Thursday, June 23, 2022, the House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill S-224 under Private Members' Business.