Foreign Affairs Committee on Feb. 26th, 2019

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

This bill does not in any way seek to restrict people from receiving organs from abroad if there is consent. The requirement is that they don't receive organs from abroad if there is not consent. Bill C-350, which was a bill I proposed that was wholly the same as a bill proposed by Irwin Cotler, envisioned a system where somebody would bring a certificate with them attesting to that consent. There's some potential value in that, but there's also some complexity around assessing the validity of a certificate in countries where that just may not happen as a matter of course.

The way this legislation is set up, it would be incumbent on the prosecution to demonstrate, based on a typical standard of proof, that there was exploitation or there wasn't proper consent.

Does that mean that there are cases where someone might be involved in organ trafficking and it's difficult to prove or it's difficult to get a conviction? Yes, that's something that prosecutors deal with every day. Certainly for somebody who innocently went abroad and received an organ for which there was consent, doing so in another jurisdiction that has the rule of law or receiving from a family member, the risk that the person would get caught up in a prosecution here is totally nil. If anything, the risk is greater the other way, that someone would do something nefarious and not get caught in a prosecution. At least it's better to have this law than not have this law, even though we're not going to be able to successfully prosecute every case. Again, that's true of any law.

[The Chair]

Thank you very much, MP Genuis. That brings us to the end of the questions for you. We really appreciate your being here. You're hearing from all sides of the table that there is an acknowledgement of the importance of this particular bill. You're right that it's about doing the hard work now to ensure a path forward that will see it successfully passed.

With that, we will suspend. We have David Matas joining us at 9:45 by teleconference.

[The Chair]

Thank you, colleagues. We're resuming. We have David Matas on the line.

David Matas is a lawyer and senior legal counsel for B'nai Brith, and he is a subject expert and long-time advocate on the issue of human organ trafficking. We're very pleased to have him join us from Winnipeg this morning by phone.

Mr. Matas, I will ask you to provide testimony, please, and then we will open things up to questions from members. I know there are quite a few.

[David Matas, Senior Legal Counsel, B'nai Brith Canada]

Thank you.

I had some prior discussions about the bill with some of you. Three different issues have been raised: compulsory reporting, consideration for payment and body parts other than organs. Let me say a bit about each of those issues.

Compulsory reporting is an issue where there was a constitutional question raised, because the bill now says “reporting to a designated authority”. I looked at the definition of “Attorney General” in the Criminal Code because the bill says there has to be consent by the Attorney General. The term “Attorney General” in the Criminal Code is defined to mean the Attorney General or Solicitor General for the province in which proceedings are taken, and the Attorney General of Canada pertains only to Yukon, Nunavut and the Northwest Territories.

That issue of constitutionality, as I see it, can be answered in one of four ways. One is just to leave the bill as it is and to leave the issue of who the designated authority is to the Governor in Council, who could in theory, in consultation with the provinces, designate provincial authorities for each province where the Attorney General or the Solicitor General has the power to consent to prosecution. That would be one option.

A second option would be to change the bill to require the consent of the Attorney General of Canada, as opposed to just the Attorney General, so as to allow for the designated authority to be federal.

A third option would be to change the consent requirement as it exists in some parts of the Criminal Code to be either the Attorney General of Canada or the Attorney General or Solicitor General of the province, which would maximize flexibility in the designation of the relevant authority.

A fourth option is to change the bill so that instead of requiring “reporting by an authority designated by the Governor in Council”, it would require “reporting to the Attorney General”. That would mean the Attorney General as defined in the Criminal Code, which would mean reporting to the Attorney General or Solicitor General in each province where proceedings might be taken. I point out that this is a common form of reporting. There's a lot of reporting legislation right now in Canada for child abuse, for gunshot wounds, and a lot of this reporting goes straight to the prosecutorial authorities.

Those are the options that I saw for the first issue about reporting.

In terms of consideration, the issue that has arisen is whether the bill as it now stands would penalize compensation to the donor for expenses incurred or income lost. There are a couple of ways to deal with that. One is just to leave it to prosecutorial discretion and the consent of the Attorney General and not change the bill.

A second is to have specific wording, and instead of saying “consideration”, say “consideration for the purpose of exploitation”, which is the language used right now in the Declaration of Istanbul on Organ Trafficking and Transplant Tourism. Exploitation is a well-known concept in the Criminal Code, where it's mentioned 36 times. In particular, it's part of the offence of trafficking of persons in the Criminal Code.

The third issue I heard raised was the issue of body parts—whether the reference to organs is too narrow, and whether the bill should also refer to “tissue”. If the bill were amended to refer to tissue, the question would arise whether that's too broad, and whether some forms of tissue would need to be exempted.

Again, there's more than one answer. One is to do nothing, because the fact that something more can be done that is worthwhile is another argument for doing something, which is in itself worthwhile, and which is in the bill right now. A second answer is to add “tissue”, but to rely on the concept of exploitation to avoid overbreadth. Presumably, consideration for those tissues, which the bill would not intend to capture, would not be consideration for the purpose of exploitation. The third answer is to add “tissue” but exempt specific tissue listed by regulation. I would think there would have to be medical consultation to determine which tissue would fall within the regulation.

Those are the various issues I heard discussed, and the various options I present for your consideration. I realize there's a strategic consideration involved because if there's an amendment then it has to go back to the Senate and in theory any one senator could delay the passage of the bill through the Senate with amendment.

I feel in terms of strategic considerations you're in a better place to deal with them then I am. I leave that to your wisdom.

[The Chair]

Thank you very much, Mr. Matas.

We will now proceed to some questions for you.

We're going to begin with MP Genuis.

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

Mr. Matas, it's an honour to speak with you even if it is over the phone. Thank you for your excellent work on this issue, as well as some good discussion here about some of the legal details.

These three points we discussed are important. I note that for each of the three you've shown us that not amending the legislation is a strong option. Of course, you're looking at it from a legal perspective. For us, the political perspective is very much doing something versus nothing. That may be the reality we're up against.

I just want to go through these three points again and probe them a little.

On the first point, the issue of reporting and the question of constitutionality, the legislation as it's currently drafted, if I understood you right, would fully allow the Governor in Council to designate the appropriate provincial authorities. That would get around any concerns about constitutionality. It would provide that the government was making the appropriate designations. There wouldn't be any question about treading on the division of powers because of the ability to designate that is open within the legislation.

Did I understand you right on that point?

[David Matas]

Yes, in terms of constitutionality because right now the Criminal Code says “Attorney General” but includes in that concept the Attorneys General of the provinces. I don't see any real difference between that and the Governor in Council designating provincial authorities to deal with the issues. It strikes me as the same type of constitutional division of powers.

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

It seems then that, although there are other options for dealing with that issue, the current legislation provides a strong and effective framework for responding to that.

On the issue of consideration, it seems like a pretty “out there” speculation that somebody would attempt a prosecution on the basis of someone's expenses getting covered. Covering someone's expenses so they can provide a voluntary service seems very different from doing something for consideration. In any event, there's prosecutorial discretion but there's also the requirement of sign-off from the Attorney General.

Do you think that is sufficient to ensure a minimally reasonable reading of this as well as those elements of discretion?

Do you think that is sufficient to respond to potential concerns around a wild misinterpretation of the concept of consideration?

[David Matas]

In principle it could be. I'm familiar with the concept of consent of the Attorney General because it exists in a lot of other provisions of the code.

In particular I've been dealing with the consent of the Attorneys General through the concept of prosecution for incitement to hatred. In British Columbia, for instance, the Attorney General has settled criteria for exercising consent. There's an intermediate step between complete discretion in all cases and something specific in the bill. That is guidelines or criteria, the Attorneys General together or individual Attorneys General could play out for. It's a granting of their consent.

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

One other quick issue on that is the prospect of changing it to “for the purpose of exploitation”. One possible worry I would have for that is does “for the purpose of exploitation” refer to the intention of the recipient?

Because somebody might be receiving an organ without any sort of specific intent to exploit. In that they may be grossly negligent and their intention is to get an organ for themselves. They are exploiting in fact but they're not seeking exploitation.

Do you understand what I mean?

[David Matas]

Yes. In general, the criminal law includes both intent and recklessness, so if somebody is wilfully blind, that might well be covered for the purpose of exploitation. If you can't establish the requisite criminal intent, you couldn't get a conviction.

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

I think it is worth noting that the original version of the bill referred to tissues, but that was removed by the Senate, so any change we would make that would reintroduce the concept of tissues or body parts would raise questions of further back and forth and create greater challenges.

I'm also curious to know if the term “organ” is defined anywhere in the Criminal Code. This bill doesn't include a definition of “organ”, so in a way I think it's open enough for “organ” to include body parts, but not the kinds of tissues that the Senate wanted to exclude—things like embryonic tissues, which raise a lot of other kinds of considerations.

[David Matas]

I'm not familiar with the definition of “organ” in the Criminal Code, but I don't think we should stray too far from ordinary English language understanding or medical understanding of the terms, and “tissue” is a concept distinct from “organs”. It is possible, I suppose, to define “organs” to cover more than what is ordinarily understood as organs, but that would raise the issue of a further amendment.

I think that if we have “organs” and not “tissue”, we're stuck with “organs” and not “tissue”. I see that as not necessarily a problem because the bill.... I mean, no matter what legislation you have, you can always think that there is something you can add that might improve it, but there is nothing wrong with the bill as it stands simply because “tissue” is not there.

[The Chair]

Thank you very much.

Parliamentary Secretary Virani.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Mr. Matas. It's always a pleasure to hear from you. Thank you for your long work on the objectives that are being sought by this bill. I will be candid with you and say that there has been some concern expressed—and I share some of the concern—with respect to the financial transaction component, so that's what I am going to ask you about.

It dovetails with what Mr. Genuis just said about how in the Senate there was a differentiation made on “organ” versus “tissue”. I think they were very alive to the issue about reproduction issues and people going abroad to obtain sperm and ova, for example, but they were also quite alive to the issue of people who.... I think the easy case, Mr. Matas, is the one where there is a prisoner, there is clearly no consent and their organs are harvested against their will. That's targeted by this bill. That is something that obviously all parliamentarians want to address.

The tougher case is the situation where, because of the organ shortages in this country, people in desperate circumstances are forced to go abroad to seek organs and end up transferring money in the process of procuring that organ even if they believe they've obtained consent. What I want to ask you is about the aspect of consideration. Specifically what I want to ask you is whether informed consent is enough, simpliciter, to address the issue?

I'd put it to you this way, Mr. Matas. If someone is obtaining an organ through unethical practices, such as inducing the consent of a person by deceiving them about the need to risks or consequences of the procedure, would that constitute a lack of informed consent on its own?

[David Matas]

Obviously when it comes to whether or not an offence is committed, in hypothetical examples, that's really something that prosecutorial authorities have to decide based on the facts of the cases, because no case in reality quite conforms to a hypothetical example that we can imagine.

I can see that what's behind the notion of informed consent to a certain extent is trying to in another way get at the issue of exploitation. It's another way of saying that the bill itself may be sufficient already in its terms, but I do think that if the committee wants to be more explicit, it could add the concept of exploitation. Obviously, the intent there is that you not take advantage of the source in any way, whether it's through payment, pressure or incentives. The idea is that it has to be truly voluntary. Of course, the classic case is that of somebody in detention, but there are a lot of non-detention cases where we can think of examples where the situation is not truly consensual.

I think that all Parliament can do is set out principles and set out general language. When it comes to specific cases, I think we really have to leave it to the prosecution to try to capture the intent of the legislation.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Further to that, Mr. Matas, as the clause is currently structured—this came up when MP Genuis was testifying as well—it creates an offence with respect to the financial flow of consideration. It's not restricted to consent only. I put that out there.

Secondly, I think it's also important that as parliamentarians we target it as much as possible to what you describe as taking advantage—“exploitation” was the language you suggested. Right now, it criminalizes both the the vendor and the purchaser. That's a concern as well. What I would think we are trying to address is the purchaser and also, perhaps, the middleman, the broker who connects a potential purchaser with a potential vendor—the vendor sometimes being what people would describe as the destitute farmer in some developing country—for want of a better example. That's probably the last person we would want to criminalize.

The way I see proposed subsection 240.1(3) as it reads right now, that person would be criminalized. Could you comment on that?

[David Matas]

My general comment is that one can look at the bill and think of ways it could be amended so that the intent could be more specific and the problems we imagine could be more explicitly addressed. If it were just a matter of the House of Commons making amendments and the bill being passed, I don't think it would be much of an issue.

The problem is that any amendment, even the slightest one, means the bill goes back to the Senate. In the way the Senate functions, as I understand it, any one senator can delay the passage of the bill for any reason, and as a result, the bill could potentially be delayed beyond the next election. With any amendment, it becomes a problem, potentially, of getting it into that cycle.

That's more of a strategic issue than a legal one, and I really leave it to the committee to decide what the risk is of that happening. But if there's no risk of that happening, and it's simply a matter of improving the wording of the bill, then I would say sure, by all means.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Your opening statement was that a potential improvement in the wording would be “consideration for the purpose of exploitation”. You said “exploitation” is used in 36 different places in the Criminal Code. Did I get that right?

[David Matas]

Yes, that's right. Some of the uses are not that relevant to the use here, but one that is relevant is the provision on trafficking in persons. It has the concept of exploitation built into it. Indeed, trafficking in persons is so close to trafficking in organs that sometimes trafficking in organs is included within the concept of trafficking in persons.

I think that would be an easy phrase to adopt or an example to follow.

[Arif Virani, Liberal, Parkdale—High Park, ON]

In terms of the notion of removing the financial transaction component entirely, so that it's just an informed consent-based regime, would that address the objectives of the bill?

[David Matas]

I think it would have to expand the concept of informed consent, but yes, as long as one interprets informed consent as including the avoidance of exploitation, that would be another way of doing it.

[The Chair]

Thank you very much.

We will move to MP Ramsey, please.

[Tracey Ramsey]

Thank you, Mr. Matas, for being here via teleconference.

I have a couple of questions for you about whether or not the offences created in S-240 are already covered by the Criminal Code in section 279.01 and subsection 279.04(3).

Could you speak to why that may or may not be?

[David Matas]

If you look at those sections and you look at the bill, there's a lot more detail here in the bill. Whether it's covered or not becomes an issue, a speculation or uncertainty. The advantage of the bill.... First of all, it does have some concepts that are not in a current law about immigration, but reporting. However, even if you look at the offences that are in the code, they're not as specific. Also, this bill addresses extraterritoriality, which the current provisions in the code do not. They're just local offences.

As far as I'm concerned, if I had a choice between just making the current provisions in the code extraterritorial, with an add-on for reporting and immigration, or the present bill, I would prefer the present bill because it's just a lot more specific and we don't get into the issue of whether it is covered or not covered. We know for sure that it's covered.