Evidence of meeting #27 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was extraterritorial.
A recording is available from Parliament.
Matthew Taylor Counsel, Criminal Law Policy Section, Department of Justice
Good morning. I'm not Amir Attaran.
Counsel, Criminal Law Policy Section, Department of Justice
I'm Matthew Taylor, Department of Justice, criminal law policy.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Mr. Taylor.
I understand why the additional two sections would be added to the extraterritoriality, and we certainly agree with them. My concern here, and one of the consequences, obviously, of this kind of offence of engaging in trafficking....
I've seen examples of it. I've seen very disturbing films about the sexual exploitation trade, documentaries on how they work. This notion of destroying or doing away with documents is obviously, or ought to be, from an offender's point of view, something that you would want to attract in the extraterritoriality.
My concern, and this goes back to some of the testimony, is who do the handcuffs get clamped on? It seems to me, from what little I know about this kind of offence, that it does engage the victims themselves in the offence in various ways, whether aiding and abetting, in some sense, or the destruction of documents that in fact could be done by one of the victims themselves.
So I'm a little leery of getting into the kind of detail here that could potentially ensnare the victims themselves into the web of this law.
Would you comment on that, and advise on whether that is avoided in practice, or can be avoided in practice? Do we need to have some sort of exception here? That section disturbs me a little bit, because I do know that ensnaring the victims themselves, whether it be threats of deportation, threats of them getting charged themselves, threats of them being considered, or making themselves feel considered, part of the crime themselves...because someone could then point to them and say, “Hey, you'd better behave, because you're going to get prosecuted too.”
Counsel, Criminal Law Policy Section, Department of Justice
It is a good question. I would respond in two ways. The first way is to have regard to the wording of the offence itself, 279.03.
As you said, these are practices that are used by traffickers to compel their victims to provide labour services, to exploit them. It's a control tactic, and the offence as drafted links that conduct to the exploitative purpose. So the withholding of the documents, the destroying of the documents, has to be done for the purpose of facilitating the trafficking of persons. I think that, on a first principle, would likely exclude most cases you've described, as I've understood it, because if the victim was told, you must destroy this passport, I think it's fair to say that they're not doing it for the purpose of trafficking in persons; they're doing it because they're fearful for their safety.
To the extent that there would be another situation where theoretically that offence might apply, and we are dealing with a victim, we would look to discretion not to lay a charge, either by a police officer or a prosecutor, and you've heard testimony already today about how the RCMP and Ms. Nagy and others are training police officers to better respond to those situations.
Does that help?
NDP
Jack Harris NDP St. John's East, NL
Okay.
(Amendment agreed to [See Minutes of Proceedings])
(Clause 1 as amended agreed to)
(On clause 2)
Conservative
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Yes. Thank you.
Bill C-310 proposes to add an interpretive aid to section 279.04. This aid would provide a non-exhaustive list, which we discussed here this morning, of conduct that a court could take into consideration in determining whether an accused had exploited another person. The purpose of my proposed amendment would be to simplify this paragraph and to make it more consistent with the way other similar clauses in the Criminal Code are drafted. It would do this by modifying proposed subsection 279.04(2) to make clear that the conduct listed in the subsection is relevant to determining whether an accused exploited another person, and simplifying the proposed list of conduct to make it easier for police, prosecutors, and courts to rely upon.
So really what we're trying to do is just make this a little clearer and make sure that it fits the purpose it's drafted for.
NDP
Françoise Boivin NDP Gatineau, QC
I have a question.
I am in favour of the amendment, there is no problem. On the other hand, I have some questions. You are adding the proposed subsection 279.04(2)(a), which says "used or threatened to used violence" to introduce the concept of "force", or of "another form of coercion". Violence and force are two different concepts.
Do you use the word "force" in a very general sense? I refer to some comments from one of my colleagues here: it is not necessarily a violent act. Is it just to prevent differing interpretations and start playing with words? Is the goal really to extend as much as possible the meaning of that word? I am only trying to understand the idea behind the amendment.
Counsel, Criminal Law Policy Section, Department of Justice
If I understood the question correctly, in terms of the existing language, when I look at it—and obviously this is something Mrs. Smith has developed—I get the sense that what she is trying to capture is exactly as you have described, the different types of practices that traffickers employ, whether it be the explicit violence, threats of bodily harm, physical assaults, sexual assaults, or the conduct that perhaps falls lower on the scale, so psychological violence.
NDP
Françoise Boivin NDP Gatineau, QC
It was probably too restrictive by using just the term “violence”, but we did have the force after, except now we replace
"force" by "deception".
Counsel, Criminal Law Policy Section, Department of Justice
I think the other piece to recognize too is that from a criminal law perspective, these concepts as they appear in Bill C-310, violence, force, and coercion, are roughly talking about the same thing in a criminal law context.
I don't have the amendment in front of me, but my sense from hearing the remarks is that the idea is to try to avoid potential confusion in the courts by police officers, by prosecutors. If we're talking about violence, how is that different from force? How is that different from coercion? And I think the ultimate objective, if I understand it correctly, is to provide a simplified approach that's broad enough to capture all of that conduct, not just the physical violence but the psychological tactics as well.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
I just want to comment that sometimes the threat of coercion or force, as opposed to an overt act of violence, means that you're stopping someone from doing something. You're stopping someone from leaving, for instance, through a threat of coercion.
NDP
Jack Harris NDP St. John's East, NL
I think it needs to be extremely broad, because sometimes it's a case of letting someone know what he or she did to somebody else. It's not exactly subtle. It is an implied threat of violence, force, or coercion. Maybe you should have a look there. We're taking out, actually, the word “violence”, and “force or another form of coercion” is used to replace.... I guess proposed paragraphs 279.04(2)(a), (b), and (c) are rolled into one, Mr. Taylor. Is that what we have now?
Counsel, Criminal Law Policy Section, Department of Justice
That's what it looks like. Thank you for the draft amendment.
Certainly I think that “force” and “coercion” would capture your concerns, Mr. Harris, in terms of the threats of violence, overt threats, not necessarily to you—“you know what we did in this situation”. They are essentially implying that if you're not careful, it will happen to you as well.
I think that provides enough latitude for police officers and prosecutors to capture the conduct you're concerned about.
NDP
Jack Harris NDP St. John's East, NL
Sometimes it's not even letting them know. It's doing it to one person and then putting her in with all of the others, who tell the story of what happened.
Counsel, Criminal Law Policy Section, Department of Justice
Absolutely. My understanding of the intent behind the bill is to really expand on and codify what the law is already.
When the trafficking offences were developed and enacted in 2005 and this test of exploitation was developed, it was meant to capture all of the conduct you've discussed, not just the physical violence but also the psychological violence—the threats of deportation, the threats of arrest. They're not familiar with the laws in Canada. They tell them, “Well, you don't have any travel documents, so if you don't do this for us, the police are going to come and arrest and deport you.” All of that conduct was meant to be included in the existing test for exploitation. It was a test designed to look at the totality of the behaviour and the effect the behaviour would have on a victim.
With regard to this fear for safety aspect, there have been some suggestions that victims have to have said that they were afraid and that this is why it's been difficult to prosecute these cases. In actual fact, the test isn't whether they were afraid but whether it would be reasonable for them to be afraid. That encompasses all of that psychological harm you're concerned about.
NDP
Jack Harris NDP St. John's East, NL
I take it that the use of deception is easier to prove than fraudulent misrepresentation.
Counsel, Criminal Law Policy Section, Department of Justice
They're slightly different concepts.
Counsel, Criminal Law Policy Section, Department of Justice
Absolutely. When you think about fraud in a criminal law sense, it's a deliberate attempt to mislead for a particular purpose. It has a legal meaning. Deception is slightly different from that. I think it provides a bit more latitude as well.
Conservative
The Chair Conservative Dave MacKenzie
All right. Thank you very much.
(Amendment agreed to)
(Clause 2 as amended agreed to)
Thank you. Shall the title carry?