Justice Committee on June 1st, 2009

[Some hon. members]

Agreed.

[An hon. member]

On division.

[The Chair, Conservative, Ed Fast]

Shall I report the bill to the House?

[Some hon. members]

Agreed.

[The Chair, Conservative, Ed Fast]

That's it. The bill is done. Thank you, gentlemen.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Did we adopt the last motion that the committee would order a reprint of the bill, as amended, for use by the House?

[The Chair, Conservative, Ed Fast]

It's not required, because we haven't amended the bill at all.

Thank you.

I'll suspend for a few minutes while we allow our one witness to leave.

[The Chair, Conservative, Ed Fast]

I reconvene the meeting.

By order of reference, we are now going to hear witnesses on a private member's bill, Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years).

We're pleased to welcome our three witnesses. We first of all have the sponsor of the bill, Joy Smith. We also have Natalie Levman, representing the Department of Justice; and Dianne Watts, representing REAL Women.

We will start with Joy Smith first, as the sponsor, and then we'll have the Department of Justice give a brief review of the bill; and then, Ms. Watts, you will have an opportunity to speak to the bill as well.

Ms. Smith, the floor is yours.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Thank you, Mr. Chair.

I want to thank the members of the Standing Committee on Justice and Human Rights for allowing me to make this presentation. Indeed, it's an honour for me to be here in front of you people.

The trafficking of a person, ladies and gentlemen, is a horrific abuse of human rights. The trafficking of a child is even more severe. Canada remains one of the few developed countries that does not have enhanced penalties for the trafficking of children. Bill C-268 was drafted with one goal, to ensure the sentences of the traffickers of children reflect the gravity of the crime.

The first two sentences involving child trafficking in Canada resulted in approximately one and two years served after credited pretrial time served was factored in. As such, traffickers are currently able to continue making hundreds of thousands of dollars from the exploitation and rape of children without much threat of serious sanction.

I have put forward Bill C-268 to amend the Criminal Code to address the critical legal aspect of child trafficking and to bring parity between Canada's legislation and that of many other countries. I have commended the previous Liberal government for bringing the initial human trafficking legislation under section 279.01 of the Criminal Code. This legislation has provided important tools for our police officers, prosecutors, and judges. Yet this legislation, while allowing for sentences of up to 14 years, and life in some cases, also has a minimum of zero years. One would assume that for such a horrific crime as human trafficking, lenient sentences would not be an issue. However, Imani Nakpamgi, who was the first person in Canada convicted of human trafficking involving a minor--and I must commend the member of Parliament Rick Norlock for mentioning this in his previous presentation at this committee--received a three-year sentence for the trafficking of a 15-year-old girl but was credited 13 months for pretrial custody. He made over $350,000 sexually exploiting her over two years before she was able to escape. Essentially, he will spend less time in jail for this offence than he did exploiting her, and if you ever had a chance to read her impact statement, it's absolutely heart-rending.

Last year, Montreal resident Michael Lennox Mark received a two-year sentence, but with a two-for-one credit for the year served before his trial, the man who horrifically victimized a 17-year-old girl spent only a week in jail after his conviction. With precedent-setting convictions like these, one wonders what a trafficker would have to do to get 14 years or life.

Most recently, a third conviction has been obtained for trafficking involving minors. Last month a Gatineau women was given seven years for trafficking three girls from Ottawa to Gatineau.

Ladies and gentlemen, this is 10 minutes from Parliament Hill, the seat of government for Canada. They were drugged, beaten, raped, and tethered to objects during their captivity. Two of these girls were subjected to this for six months, and one for a whole year, before their rescue. What this conviction shows is that there is at least one judge who understands that serious crimes against minors require serious sentences, but this standard must be consistent all across Canada.

The courageous officers in the Peel Regional Police Department have taken human trafficking head-on since the implementation of Canada's human trafficking legislation. They were responsible for Canada's first trafficking conviction and are currently investigating almost a dozen cases involving minors. I have to say you can read the letter that the chief of the Peel Regional Police Department wrote to me in support of this bill. The chief of the Peel Regional Police has said, and I quote:

Efforts by police officers across Canada to enforce this law are impressive, yet they are overshadowed by the disturbing number of occurrences that involve victims under the age of 18.

Establishing minimum sentences, as proposed by Bill C-268 would raise the law's deterrent goal, and highlight society's abhorrence of crimes that involve child victims.

That is from the chief of Peel Regional Police.

Allow me to point to Canada's international legal obligations. In 2005 Canada ratified the United Nations Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Article 3, subsection (3), states:

Each State Party shall make such offences punishable by appropriate penalties that take into account their grave nature.

As I have noted, the sentences so far in Canada have not been consistent with this protocol.

Further, Dr. Mohamed Mattar, executive director of the Protection Project at the Johns Hopkins University School of Advanced International Studies, points out:

Many states have specific provisions in their antitrafficking legislation or criminal codes guaranteeing enhanced penalties in cases of trafficking in persons committed under aggravated circumstances, including a crime committed against a child victim...

That is the purpose of this bill, ladies and gentlemen. Canada must have enhanced provisions for trafficking of persons when the victim is a minor.

In the U.S., the minimum is 15 years if the victim is under 14 years of age, and 10 years if the victim is under 18 years of age but over 14 years. In Thailand they have a minimum of five years for child trafficking. In the Dominican Republic, five years is added to the minimum of 15 to 20 years if the victim is a child.

The international community has also called for Canada to enact mandatory minimums for child trafficking. Last October the Report of the Canada-United States Consultation in Preparation for World Congress III Against Sexual Exploitation of Children and Adolescents urged that Canada enact a mandatory minimum penalty for child trafficking.

Also, the former director of the U.S. State Department's Office to Monitor and Combat Trafficking in Persons and current executive director of the Polaris Project, Ambassador Mark Lagon, has said,

Protection requires both providing necessary support and assistance to these children and removing the most dangerous predators from the street for a very long time.

Bill C-268 will ensure that the sentencing process consistently recognizes the gravity of this violent crime.

I do appreciate the strong support I have received across party lines for this bill. Human trafficking must remain a non-partisan issue. This bill is jointly seconded by members from three parties and, as you know, during the vote on April 22 received near unanimous support from the Conservative, Liberal, and NDP parties. This support is encouraging. When it comes to the protection of our children, nothing should unite us more.

I am disappointed that the Bloc, with one honourable exception, has chosen to stand against this important legislation. They are the sole organization and entity in Canada that has voiced opposition to legislation that upholds our commitments to the UN Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. This legislation has received strong support from all across Canada, from law enforcement, victims' service organizations, NGOs, and first nations. Strong support for this has especially come from Quebec, and as you know, a detective from Quebec presented to MPs and talked about the issue of human trafficking in Quebec, particularly around Montreal.

I also want to note that I am proposing an amendment to the bill. It was pointed out by the Bloc during second reading that there is no minimum sentence for aggravated offences under proposed paragraph 279.011(1)(a) in my bill. This paragraph provides for an individual to be sentenced to life imprisonment, which means that he or she would only be eligible for parole after seven years. I have had an amendment drafted that is within the scope of the bill, which would amend section 279.011, subsection 1(a), to ensure there is no question that this paragraph also provides for a minimum sentence of five years. It is my intention that this amendment be moved during the clause-by-clause review by the Standing Committee on Justice and Human Rights, which I understand and hope will be on Wednesday of this week.

Thank you again for allowing me to speak about Bill C-268. It is my hope that members of all parties will support this important legislation and soundly denounce the trafficking of children. We know as members of Parliament that we have the power to move this bill forward or stall it. We are nearing the end of the session, and this bill must be returned to the House as quickly as possible. I intend to seek unanimous consent of the House to move the bill quickly through third reading if I feel it is possible that we have agreement on this committee.

With the upcoming Olympics and the uncertainty of a minority government, it is imperative that this amendment be successful. Canadians and the international community will take note whether Canada is unified against the exploitation of its children. Those who oppose it will not be forgotten.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Nathalie Levman.

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

Thank you for the opportunity to provide the committee with some general information on the existing criminal law addressing trafficking of persons as well as the implication of Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years), which proposes to impose a mandatory minimum penalty of five years for the offence of trafficking in children.

By way of background, and as the sponsor has already pointed out, trafficking in persons or human trafficking is often described as a modern-day form of slavery. It involves the recruitment, transportation, and/or harbouring of persons for the purpose of exploitation—generally sexual exploitation or forced labour. Traffickers use various methods to maintain control over their victims, including force, sexual assault, and threats of violence. Victims are forced to provide their services or labour in circumstances where they believe that their safety or the safety of a person known to them would be threatened if they failed to provide that labour or service. Victims suffer physical, sexual, and emotional abuse, including threats of violence or actual harm, which is compounded by their living and working conditions. Trafficking in persons may occur across or within borders and often involves extensive organized crime networks. Women and children are particularly vulnerable to sex trafficking and are by far its primary victims.

In 2005, three trafficking-specific indictable offences were added to the Criminal Code. Section 279.01 specifically prohibits trafficking in persons and imposes a maximum penalty of life imprisonment where kidnapping, aggravated assault, aggravated sexual assault, or death to the victim is involved, and 14 years in all other cases. Section 279.02 prohibits receiving a financial or other material benefit from the commission of the trafficking offence. This offence imposes a maximum penalty of 10 years imprisonment. Finally, section 279.03 prohibits the withholding or destroying of identity documents for the purpose of committing or facilitating the trafficking of a person. This offence imposes a maximum penalty of five years imprisonment.

In addition, numerous Criminal Code offences have always applied to trafficking cases, such as extortion, assault, sexual assault, forcible confinement, kidnapping, and prostitution-related offences, depending on the facts of the case in hand.

The Immigration and Refugee Protection Act also prohibits trafficking of persons into Canada.

As a result, today police and crown prosecutors can choose from a wide range of offences, as they deem appropriate in each case. They may choose to charge or prosecute under the new trafficking-specific offences and/or they may choose to use other trafficking-related offences that I've already mentioned. In fact, in most of the recent cases, we are seeing charges under both trafficking-specific and trafficking-related offences.

Regarding Bill C-268, its proposed reforms would create a new offence of trafficking in children that would mirror the existing main trafficking in persons offence in the code, that is, section 279.01. There is one exception: where the victim is under the age of 18, it would impose a mandatory minimum penalty of five years for the branch of the offence that carries a maximum penalty of 14 years, but not where the maximum penalty is life. The sponsor has already dealt with that and indicated what she proposes to do about it. The bill also proposes consequential amendments to ensure that, along with the main trafficking in persons offence, the proposed offence of trafficking in children is referenced in the provisions that deal with interception of communications, exclusion of the public from the court, publication bans, DNA, the sex offender registry, and dangerous offenders.

The effect of these proposed reforms would therefore include, first, treating the trafficking of any person under 18 years distinctly from the trafficking of an adult, in that the mandatory minimum penalty would not apply to the trafficking of an adult but would apply to the trafficking of a child; second, where the trafficking of the young person is for the purpose of sexual exploitation, for example, in the sex trade, the imposition of a mandatory minimum penalty would make the penalties for child trafficking more like the existing penalties that apply to the procurement of a person under the age of 18, which currently impose mandatory minimum penalties in three different circumstances.

First, the offence of living on the avails of child prostitution imposes a mandatory minimum penalty of two years and a maximum penalty of 14 years of imprisonment under subsection 212(2) of the Criminal Code.

Second is the offence of living on the avails of child prostitution where aggravating factors are present, such as violence, intimidation, and coercion. This offence imposes a mandatory minimum penalty of five years and a maximum penalty of 14 years of imprisonment under subsection 212(2.1).

Finally, there is the offence of obtaining, for consideration, the sexual services of a child or communicating for that purpose. This offence imposes a mandatory minimum penalty of six months and a maximum penalty of five years of imprisonment under subsection 212(4).

That brings us to Bill C-268 and its imposition of the mandatory minimum penalty for the lesser offence. As has been pointed out, this differs from the Criminal Code's usual approach to mandatory minimum penalties in two ways. First we'll take section 273, which is the aggravated sexual assault provision. It imposes a four-year mandatory minimum penalty when a firearm is used, and the maximum penalty is life. In a case where a firearm is not used, the maximum penalty is life and there is no mandatory minimum penalty.

In the case I just went over of a child prostitution offence, the more serious aggravated offence imposes a mandatory minimum penalty of five years, and a less serious offence imposes a lesser mandatory minimum penalty of two years. Police and the crown will still have the discretion to proceed under the charge or charges that are most appropriate to the facts of a given case, whether it be under trafficking-specific offences, including this new child trafficking offence, or others that I've already mentioned: child prostitution, forcible confinement, extortion, etc.

Recent cases have already been raised in the previous session and this one. The Gatineau case involved a woman who was charged with a specific trafficking in persons offence, assault, procuring, and living on the avails of prostitution, because as the sponsor has indicated, she forced three victims into prostitution, one of whom was under the age of 18. She pleaded guilty and received a global sentence of seven years.

The recent Nakpamgi case has already been referred to. It involved a man charged with a specific trafficking in persons offence, as well as living on the avails of the prostitution of a person under the age of 18. He pleaded guilty and received a sentence of five years: three years for trafficking in persons and two years for child prostitution, to be served consecutively.

I would like to thank you very much for taking the time to listen and for allowing me the opportunity to provide my comments.

[The Chair, Conservative, Ed Fast]

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I rise on a point of order, Mr. Chair.

When the steering committee decided to fast-track the testimony of officials from the Department of Justice and other witnesses, contrary to the claim made by Ms. Smith—who told a white lie on camera by implying that this committee was going to block her bill—I do not recall the committee agreeing to hear from REAL Women of Canada. I do not understand why this organization is here today with witness status. Tradition dictates that witnesses be agreed upon by all committee members.

I would have liked to hear from the RCMP. I have nothing against REAL Women of Canada, but I fail to see how the sponsor of the bill decided.... I am a bit surprised, and I do not know what expert opinion this organization can bring to the table. If I had my way, I would have liked to hear from the RCMP. It seems to me that we are setting a dangerous precedent, if not a partisan one, and I would like to know when the committee decided to give REAL Women of Canada witness status.

[The Chair, Conservative, Ed Fast]

Monsieur Ménard, you may recall that some time ago the clerk sent out a request for witnesses on Bill C-268, as well as a couple of other bills we've been dealing with. Everyone at this committee table had an opportunity to present witnesses, and I think the understanding at this table was that we would hear witnesses on this bill.

Joy Smith, as the sponsor of this bill, is entitled to appear. You may recall that when I presented my private member's Bill C-277 a couple of years ago, I also had a representative of the Department of Justice here as a resource. That's why Ms. Levman is here. We also had a request to appear as a witness from Ms. Watts, representing REAL Women. We sent out a request for witnesses, so I don't believe it's inappropriate to hear witnesses on a bill that's very important to Canadians.

[Réal Ménard, Bloc, Hochelaga, QC]

I suggested that we hear from the RCMP. I do not understand why REAL Women of Canada is here today, since the organization is not more knowledgeable in this area than the RCMP or other law enforcement agencies. Tomorrow, I am going to point out that I requested that the RCMP appear before the committee and that I do not understand why REAL Women of Canada is here today as a witness, when there are many other witnesses who should have been heard.

Let us proceed, but I will raise that point tomorrow at the steering committee, as I find this to be an extremely dangerous precedent.

[The Chair, Conservative, Ed Fast]

I don't see this as a dangerous precedent at all. I believe that it's entirely consistent with the process this committee and other committees use to address private members' bills.

[Réal Ménard, Bloc, Hochelaga, QC]

What is happening with the RCMP?

[The Chair, Conservative, Ed Fast]

Monsieur Ménard, let me finish.

As I mentioned, we sent out a request for witnesses. I didn't receive anything from you formally asking the clerk. I've asked the clerk if she's received a formal request from you in writing, and there was nothing.

[Réal Ménard, Bloc, Hochelaga, QC]

We can continue, but we asked that the RCMP appear as a witness.

[The Chair, Conservative, Ed Fast]

Monsieur Ménard, if in fact this committee wishes to call the RCMP to add additional information to this bill, we can always consider that. We'll have a steering committee meeting tomorrow. I hope we can resolve that. All right?

All right, we'll move on to the representative from REAL Women of Canada, Dianne Watts. You have 10 minutes.

[Dianne L. Watts, Researcher, REAL Women of Canada]

Thank you very much.

REAL Women of Canada is a national organization of women from all walks of life, occupations, and social and economic backgrounds. We recognize the family as the most important unit of Canadian society. We see the fragmentation of the family as one of the major causes of disorder in society today. We are cognizant of data that demonstrate that the stable family, especially within marriage, is the best environment for men, women, and children in terms of reducing poverty, fulfilling the social, health, and educational potential of children, and reducing crime and violence. We affirm the family as society's most important unit.

We promote the equality, advancement, and well-being of women. We support government and social policies that strengthen family life.

Considering human trafficking, which is unacceptable to Canadian families, we would like to add our support to Bill C-268. Human trafficking, which involves the recruitment, transportation, transfer, harbouring--

[The Chair, Conservative, Ed Fast]

Ms. Watts, could I get you to slow down a little bit? Our interpreters are having difficulty following.

Thank you.

[Dianne L. Watts]

We would like to add our support to Bill C-268. Human trafficking, which involves the recruitment, transportation, transfer, harbouring, or receipt of individuals for sexual or labour exploitation, is in our opinion modern-day slavery. The offence of human trafficking is one of the three most lucrative enterprises carried out worldwide by organized crime, outranked only by the trade in weapons and drugs.

According to the RCMP, 600 individuals annually are victims of human traffickers for sexual purposes in Canada; 800 individuals are victims for drug trafficking purposes, forced marriage, or domestic labour; and between 1,500 and 2,000 are transported across Canada for purposes of exploitation in other destinations, mostly the United States. The domestic trafficking of aboriginal and other women and youth from within Canada is a concern equal to that of the importation of individuals from abroad for the purposes of human trafficking.

Canada has made international commitments to oppose human trafficking. In the year 2000, Canada signed the United Nations Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The state parties to the protocol state that they are “Gravely concerned at the significant and increasing international traffic of children for the purpose of the sale of children, child prostitution and child pornography”. The state parties believe the elimination of the sale of children, child prostitution, and child pornography will be facilitated by addressing, among other things, poverty, dysfunctioning families, and the trafficking of children.

I quote again from the protocol. States parties are “Taking due account of the importance of traditions and cultural values of each people for the protection and harmonious development of the child”. As stated previously, the optional protocol, which Canada has signed, provides in article 3, section 3: “Each State Party shall make these offences punishable by appropriate penalties that take into account their grave nature”.

In October 2008, the report of the Canada-U.S. consultation in preparation for the World Congress III against Sexual Exploitation of Children and Adolescents recommended that Canada “amend the Criminal Code to provide the mandatory minimum penalty for child trafficking and strengthen the sex offender registry”.

In April 2009, the declaration of One is Too Many: A Citizens' Summit on Human Trafficking at the 2010 Olympics and Beyond called for “the effective prosecution of human traffickers, the protection of human trafficking victims, and the prevention of human trafficking in every instance”. Summit participants advocated that Canada's Criminal Code reflect the fact that the crime of human trafficking should carry meaningful penalties. It is therefore urgent that Bill C-268 be enacted in order to be ready to offer protection in time for the 2010 Olympics in Vancouver.

Canada is a signatory to the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, General Assembly resolution 55/25 of November 2000. This protocol approaches human trafficking in three specific areas: preventing trafficking, protecting the victims of trafficking, and prosecuting trafficking offenders.

As an NGO in consultative status with the Economic and Social Council of the United Nations, REAL Women of Canada is strongly supportive of Bill C-268, which would amend section 279.01 to provide for a minimum penalty. We support this for three main reasons.

First, we believe that a minimum sentence for trafficking will act to dissuade men and women from engaging in the exploitation and abuse of children. This would help to achieve the law's deterrent goals.

Second, the minimum sentence of five years for such a grave crime as trafficking of children will send a strong message that trafficking is not acceptable to Canadians. It will highlight society's abhorrence of this crime. This will help set standards of behaviour in keeping with our society's values of respect toward vulnerable children. And children are the future of Canada.

Third, without minimum standards and with wide-open discretion, sentencing often takes the form of a mild rebuke, which is out of proportion to the gravity of the offence and the horrendous suffering of the victims. This also fails to deter continued exploitation of the most vulnerable, who should receive our protection and not suffer from our neglect. We believe minimum sentencing should be even broader, to include all victims of trafficking regardless of age.

Regardless of political affiliation, we should do the right thing and join those around the world who are working to make a better world by preventing human trafficking, protecting victims, and effectively prosecuting those who would exploit and abuse children. This is a rare opportunity to protect vulnerable children, and Canadians across Canada, it seems to us, would want their legislators to adhere to the above protocols and build on past efforts at global consultations to reduce these atrocious crimes in Canada and throughout the world. It's a privilege for us to defend the most vulnerable members of our society.

We thank you for inviting us to present our views to the committee.

[The Chair, Conservative, Ed Fast]

Thank you.

We now have the opportunity to ask questions.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair, and my thanks to the witnesses.

In particular, I want to thank Joy Smith for bringing this forward. You've crossed party boundaries and you've been very gracious and fair in seeking support and giving credit where credit is due. I remember your motion a couple of years ago. It was a motion and didn't have the force of law, but it was strong and well supported. It called for a national action plan with respect to this issue. I note in your letter, and I think we would all agree, that we need to address the factors that lead to exploitation—poverty and marginalization. These factors make aboriginal women and children especially vulnerable. There is not a person around here who wouldn't agree with that.

I am offering you my support for your bill. I want to move it up and get it exposed before we leave.

I might also ask you about the going-forward aspect. Are we any closer to having a national action plan on this issue? In addition, there are also issues of enforcement, which usually deal with the need for resources for enforcement. This is sometimes left on the table. Do you believe that your bill will call for more resources to be deployed? Do you think the government is willing to direct these forces toward a human trafficking national action plan and the enforcement of your bill?