Foreign Affairs Committee on Nov. 16th, 2022

[Stéphane Bergeron, Bloc, Montarville, QC]

All right. We should just make sure the other members have six minutes of speaking time as well.

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

Mr. Bergeron, I think that originally when we considered a prospective calendar for this month, it was that we would have clause-by-clause consideration today. If we had had clause-by-clause today, that would have given us a little bit of extra time, but again, I don't think it's a reasonable practice for committees to wait until the last possible day before the automatic reporting deadline and then have clause-by-clause. It looks like a tactic to delay the bill, frankly, to say that at the last possible minute we'll have clause-by-clause—

[The Chair, Liberal, Ali Ehsassi]

I'm afraid I'm going to have to cut you off, as I said, within 10 seconds—

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

At that point—

[The Chair, Liberal, Ali Ehsassi]

Mr. Genuis, I'm afraid I'm going to have to cut you off. We're well over, and I did warn you at the very start that you had 10 seconds to respond to that, because we were over already.

Thank you.

We now go to Mr. Angus. Mr. Angus, you have six minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you so much, Chair.

Thank you for inviting me to your committee.

Senator, I hope you would agree that one of the important points about having witness testimony is so that we can put on the record—and so people know—why legislation is passed and why it is important. It is our job: to ask these questions and not simply to rubber-stamp. Whether or not someone else has looked at this and whether or not this has been around for a long time, I think it is a basic role, so I'll ask you a number of questions, because I think it's important to get this important legislation clarified for the Canadian people. I'm hoping that we can have that conversation.

Senator, under subsection 279.04(3) of the Criminal Code, the exploitation for purposes of trafficking in persons includes removal of organ and tissue by means of deception, threats, force or coercion. Subsection 279.02(1) criminalizes the receiving of “financial or other material benefit” if it was derived directly or indirectly from trafficking of a person for the purpose of exploitation. Subsection 7(4.11) of the Criminal Code sets out extraterritorial jurisdiction for these offences.

How many cases have been prosecuted in Canada for organ trafficking?

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

Thank you for the question—

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm sorry, but I didn't ask you, Mr. Genuis. You're not a senator, not yet. I'm asking the senator.

Thank you. When you're a senator, I will be more than happy to listen.

[Senator Salma Ataullahjan, Senator]

I agree with you. I should have had witnesses.

The bill had been looked at earlier, so you could have had witnesses. I'm not a lawyer. When we looked at this bill and we travelled, we were asked why Canada doesn't have laws against organ harvesting. To my knowledge—and I might be wrong—I don't think there have been any cases prosecuted under this law.

[Charlie Angus, NDP, Timmins—James Bay, ON]

You're saying we haven't had any cases prosecuted.

You mentioned, I think, five cases in Vancouver and five cases at St. Mike's. Were they reported to the police? How did you become aware of those cases?

[Senator Salma Ataullahjan, Senator]

I would have to get back to you on that. I don't know if they were reported to the police. That's what we heard when we had testimony and we did research. That's when it showed that there were a few cases. St. Mike's said they had cases, and the hospital in Vancouver said that they had cases that came through.

At this stage, I don't know if the police were involved. I guess it's something that I could look into and get back to you on. I wish there had been time for you to hear from the legal community and maybe hear from the police. If this bill had been....

[Charlie Angus, NDP, Timmins—James Bay, ON]

No, no; it's fine.

One of the questions we ask when we're adding to laws or bringing in new laws is whether existing laws are being utilized. I think it's important for us to get a sense of whether we've had any prosecutions or, if we have not, why we haven't. If there have been cases, say at St. Michael's Hospital or in Vancouver, why were those not reported to the police?

I notice that this legislation is focused on refugees. Is there no legislation that can ensure that doctors report? Would that have been a better avenue to make sure we actually cut this practice down if people are coming back to Canada having engaged in illegal practices? Why are we focusing on the refugee act and giving this power to the minister as opposed to obliging professionals to report and having that dealt with as a police matter? This is really terrible, awful, criminal activity.

Senator, what do you think about that?

[Senator Salma Ataullahjan, Senator]

Thank you for that question.

I couldn't agree with you more. That's why when we had the original bill, we did suggest that if a doctor sees one of their patients who was on the list for an organ transplant all of a sudden take their name off, the doctor should be reporting it. If somebody comes into the hospital who has obviously had an organ transplant, they should be reporting it.

This committee, the House, decided they didn't want that. I think it was important, because we were told it put too much responsibility on the doctors, but as I said when I gave my remarks initially, the doctors do report every time there's a victim who's been shot who comes to them for treatment. For whatever reason, the House did not want that responsibility placed on the doctors.

I feel that this is the starting point for us. We need to have some sort of legislation in place. We know that Canadians are going abroad for organ harvesting. When there was a raid in Kosovo and they caught people who had come to have organ transplantation, there was a Canadian there. We know that Canadians are going abroad.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Do we have numbers on where Canadians are going? Have there been any prosecutions of Canadians going abroad? This is an international crime. It's very important.... This is why I go back to this. We have protections in the Criminal Code. In that Kosovo case or any other case, has there been a Canadian prosecuted for going abroad to engage in such deplorable activity?

[Senator Salma Ataullahjan, Senator]

Currently, there is no law that bars people from going abroad to get an organ. I think it's happening in different parts of the world. Canadians are going. They are going to China. They are going to India. They are going to Pakistan. They are going to other countries to get organs.

[Charlie Angus, NDP, Timmins—James Bay, ON]

But doesn't subsection 7(4.11) of the code set out—

[The Chair, Liberal, Ali Ehsassi]

Mr. Angus, I'm afraid your over time.

[Charlie Angus, NDP, Timmins—James Bay, ON]

—extraterritorial jurisdiction of these offences?

Thank you.

[The Chair, Liberal, Ali Ehsassi]

Thank you.

At this point, given that we are well over the period that we had allotted for questions, I'm afraid that we're going to have to keep it at one round of questioning, because we now have to go to the witnesses.

Allow me to thank you immeasurably, Senator.

Allow me to thank MP Genuis for having been here with us and having allowed us to develop a more sophisticated understanding of this very important bill. We are very grateful indeed.

Now we will suspend for a couple of minutes.

Could the two members who are online remain? You don't have to do anything, but we want to make sure that we get the next witnesses connected.

Thanks.

[The Chair, Liberal, Ali Ehsassi]

Welcome back, everyone.

I'd like to make a few comments for the benefit of the new witnesses who are joining us by video conference today.

Please wait until your name has been recognized before speaking. Click on the microphone icon to activate your mike. Please mute yourself when you are not speaking. Interpretation is at the bottom of your screen. You have a choice of either floor, English or French. All comments should be addressed through the chair.

It is now my great pleasure to welcome our three witnesses, all of whom are here virtually: Dr. Miriam Cohen, associate professor, faculty of law, Université de Montréal; Dr. Lindsey McKay, assistant teaching professor, faculty of arts, Thompson Rivers University; and Dr. Jagbir Gill, vice-president, Canadian Society of Transplantation.

You will each be provided five minutes for your opening remarks before we proceed to questions from the members.

Go ahead, Mr. Bergeron.

[Stéphane Bergeron, Bloc, Montarville, QC]

Mr. Chair, I just want to make sure that the sound tests with the witnesses have been successfully completed.

[The Chair, Liberal, Ali Ehsassi]

Yes. I did look to our technical adviser here, and to the clerk, to confirm that this is the case.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

[The Chair, Liberal, Ali Ehsassi]

Thank you, Mr. Bergeron.

We will now proceed with Dr. Cohen.

You have five minutes. When you're approximately 30 seconds short of your five minutes, I will put this up just so that you're fully aware that you should be wrapping up.

Dr. Cohen, the floor is yours.

[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—