Evidence of meeting #27 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was human.
A recording is available from Parliament.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
We're hearing from Ms. Smith and others that we, Canada, are not in compliance with the international protocols on human trafficking. I think I've heard from the government that it in fact feels that it is in compliance. Are you able to shed any light on that?
Counsel, Criminal Law Policy Section, Department of Justice
Yes. It is our view that we are in complete compliance with all of our international obligations—first and foremost, the UN protocol on trafficking in persons, especially women and children, which establishes various obligations, including criminalization. We do have, as I've referred to today, a solid body of criminal laws that address trafficking in persons.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Let me jump over to Ms. Smith.
Ms. Smith, if I understood you correctly, you feel that the non-compliance is on the sentencing side, not on the offence side. Is that fair?
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Okay, and there are international commentaries that would suggest that we should have mandatory minimums.
Conservative
Joy Smith Conservative Kildonan—St. Paul, MB
Yes. What I said was that if you look at the report of the Canada-U.S. consultation and preparation for the world congress against sexual exploitation of children, the report recommended on page 6 that Canada enact a mandatory minimum penalty for child trafficking. What I said in my literature was that those two cases were child trafficking.
Just to clarify, I wasn't talking about adults.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Ms. Levman, in terms of the point that Mr. Ménard was raising of the connected offences, in regard to the other eight within the thirteen, what are the connected offences?
Counsel, Criminal Law Policy Section, Department of Justice
There are a variety of different trafficking-related offences. They include charges for child prostitution, procuring, living off the avails of prostitution, assault, uttering threats, and extortion.
NDP
Counsel, Criminal Law Policy Section, Department of Justice
Some of them were. One has to remember that with case law these things aren't always noted. I can say that of the cases in the last period that we looked at--because we monitor these cases as best we can, so that would be spring of 2008 to spring of 2009--we are aware that at least nine of the victims were under the age of 18.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I just happened to be reading something, and I want to give you the scenario, because it gave me some cause for concern about the way this is drafted. I'm particularly concerned about the wording, the phraseology, of exploitation.
I know of a situation in England in which a person was convicted. A woman, who is the mother of three sons, arranged for brides, for arranged marriages, to come to England. Then she exploited their labour quite viciously. She was convicted of that and sentenced, but not for trafficking. The marriages actually did take place, although there was, from what I could tell, no relationship that existed after the technical marriage. In that kind of scenario, would exploitation apply? She was exploiting their labour, not paying them, and the rest of it.
Would this bill apply to that?
Counsel, Criminal Law Policy Section, Department of Justice
Would this cover a scenario like that? It's impossible for me to say, based on a hypothetical set of facts. What I can say is what the law says, which is that where a person engages in conduct that basically requires the other person to offer up labour and services under circumstances in which they apprehend that their safety would be threatened if they failed to provide that labour or those services, then the provision in section 279.01 would cover that given situation.
Counsel, Criminal Law Policy Section, Department of Justice
That is the legal test. Exploitation is defined in section 279.04, as I've just described.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Have there been any interpretations by our courts up to this point? I think you said that all of them up to this point have been guilty pleas.
Counsel, Criminal Law Policy Section, Department of Justice
Unfortunately, no. That's why I stressed to the committee that they were all a result of guilty pleas. Of course, we're anxious to have judicial interpretation of this new provision.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Are there any outstanding challenges of the legislation--section 279--as it is?
Counsel, Criminal Law Policy Section, Department of Justice
By challenges, do you mean the charter?
Counsel, Criminal Law Policy Section, Department of Justice
No, there are cases proceeding before the courts, but I am unaware of any charter challenges being brought in relation to either section 279.01 or the definition.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
What about the more general rule that the section is not explicit enough, not clear enough to understand that interpretation, short of a charter challenge? Are you aware of any challenges like that?
Counsel, Criminal Law Policy Section, Department of Justice
We are aware of none.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
On the mandatory minimums in terms of what's in section 212, in order to have a mandatory minimum on Ms. Smith's Bill C-268 for sections 279.02 and 279.03, you would actually have to charge them under section 212 to get a mandatory minimum.
Counsel, Criminal Law Policy Section, Department of Justice
Yes, there are mandatory minimums in subsections 212(2) and 212(2.1), and currently there are no mandatory minimums in any of the trafficking offences in the code. If, for example, you had a case involving a young person under the age of 18 who had been trafficked for the purposes of sexual exploitation, the crown and police would basically have an option of going with one or the other, potentially, depending on the facts, depending on what's provable in court.
NDP