Justice Committee on May 1st, 2013

[Robert Hooper]

I'll attempt an answer, Mr. Chair.

I don't have with me statistics on whether the criminal justice system, using general deterrence, specific deterrence, retribution, and rehabilitation, the four pillars of the Canadian sentencing principles, works or doesn't work. But at the end of the day, with human trafficking in its infancy in this country, there isn't going to be scientific data. This might be out on a limb, or anecdotal isn't good enough, but at this point, when our organization adds up the math, the way our system currently sits with concurrent sentences being the norm, it encourages stables of labour slavery and sex slavery. These sentences have all been concurrent. That means, whether it be one or ten, you get essentially the same sentence.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you for those questions and those answers.

Our next questioner, from the Conservative Party, is Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thanks, Mr. Chair.

I want to pick up on this discussion on concurrent sentences. I know that the Liberal Party is expressing some concern, in talking about how you'd be taking away a judge's discretion. I think that's where they’re going. We talk about this a lot on this committee in different ways with respect to different Criminal Code sanctions.

Mr. Hooper, maybe you can comment on this.

My view is that when you have established case law, the norm is concurrent sentencing, which is what we have now. Judges have the option, but they haven't exercised it. If we, as Parliament, want to show our condemnation of this type of behaviour, we have to move the goalposts. The way you move the goalposts and the way you get judges out of that sentencing rut, where they continue to put forward a concurrent sentence, is to change the legislation. You've sent that signal, and then the goalposts actually get moved.

That's my belief on why this is so important with respect to this particular issue, and certainly some others, but I would like to have your comment on that.

[Robert Hooper]

I couldn't agree more.

By way of analogy, approximately nine years ago in this country, in a civil litigation context, the Supreme Court of Canada set what they said to be the normal rule of thumb for punitive damages at $1 million in a case called Whiten v. Pilot. Recently, a judge in the prairies who did not get complacent said, “I don't think the insurance industry got the message, so I am going to step outside”, and went with a $4.2 million punitive damage award, which I'm sure will weave its way back to the Supreme Court of Canada at some point.

But I think that is exactly it. The way our system is built in the judiciary, if the Court of Appeal has sort of rubber-stamped concurrent sentences, judges of the Superior Court or Queen's Bench across this country are bound by that. The only way this is going to change is with a consecutive sentence in legislation from Parliament, as opposed to judge-made law. I agree.

[Kyle Seeback, Conservative, Brampton West, ON]

That's certainly my view, and I think it's a necessary step we have to take, to show that sort of condemnation.

Ms. Legault-Roy, do you agree with that?

[Éliane Legault-Roy]

Yes. The law as it relates to human trafficking is not exactly our specialty, but we have discussed it within our organization. We all agreed that the act should be amended.

[Kyle Seeback, Conservative, Brampton West, ON]

I think the other issue that sometimes comes up when we talk about deterrence is that we often hear, “Give me an example of where deterrence has worked. Show me a study where deterrence works.”

My view, quite frankly, is that there are two types of deterrence. One is general deterrence; you make the sentence so strong that people say, “Oh, gee, maybe I don't want to do that.” The other aspect of it, and this is the one that I believe in, is specific deterrence, which means the person who committed this very serious offence...for example, under subsection 279.011(1), which is the most serious one for trafficking under the age of 18, there can be imprisonment. There's a minimum punishment of imprisonment for six years. So if this person committed this offence against six or eight or ten girls under the age of 18, they're going to be put away for a minimum sentence of 48 or so years. My view is that that person has been deterred because they're now in jail; they're not going to commit that offence.

I thought maybe you could comment on that. That's a different version of deterrence.

[The Chair, Conservative, Mike Wallace]

Would you like to answer that, Mr. Hooper?

[Robert Hooper]

Yes, Mr. Chair.

I listed the four sentencing principles, and they have to be balanced. I think that is specific deterrence and general deterrence, because if that is in the Globe and Mail or the Ottawa Sun, or whatever paper the next potential trafficker reads, it sends a message. But if it says there were ten victims and you got nine concurrent sentences of six years, then I start doing an entrepreneurial math equation of whether it is worth it to take the chance. So I agree.

[Kyle Seeback, Conservative, Brampton West, ON]

How am I for time?

[The Chair, Conservative, Mike Wallace]

No. Thank you, Mr. Seeback. Thank you for those questions, and thanks for those answers.

Our next questioner is Mr. Mai.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Thank you, Mr. Chair.

Thanks once again to the witnesses for being with us here today.

During the study in committee on Monday, police officers testified before us and noted how good a tool the bill was for them. They told us about the victims.

Ms. Legault-Roy, I believe you deal with them directly. At the last meeting, we raised one concern about aboriginal women, and we want to raise it again today. I do not know whether you deal directly with a lot of them, but this is a scourge for them.

Can you tell us whether you deal with aboriginal victims and aboriginal women?

[Éliane Legault-Roy]

Canadian aboriginal women are indeed extremely overrepresented in prostitution, as are all “racialized” women. There is an overrepresentation in that regard.

We at CLES do not work specifically with aboriginal women. It is true, however, that this is definitely a problem for them. I think aboriginal women in particular are greater victims of trafficking. People go far to get them, to the north, before moving them within Canada. Since they remain in Canada, sometimes they can go unnoticed. It is also possible that they are not involved in human trafficking and that they move for work.

I believe we could protect them more if we specifically stated that there is human trafficking in Canada and internationally.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

The police officers we met also talked about confrontation at the hearing. Can you tell us a little more about that?

[Éliane Legault-Roy]

About confrontation?

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Since the victims have to appear. The waiting times are often very long, and sometimes they are supposed to testify on a given date, but their appearance is delayed. Can you tell us a little about what the victims who have to go through this process experience?

[Éliane Legault-Roy]

Mr. Chair, I will answer the question by saying that it is extremely difficult for these women.

As in rape cases, only a very small minority file a complaint and institute legal proceedings. Of that very small minority, some give up along the way because the process is too difficult.

Women often suffer from post-traumatic stress and various other health problems. As a result, appearing at a number of hearings and taking part in a process that is very long can be extremely difficult.

We are currently working with one woman on a pardon application. That is another matter, but it involves approximately two years of work. That woman has been in the sex industry. It is very difficult.

In my view, not compelling these women to testify will help them a great deal. It will also help police officers since it will be easier for them to encourage women to report abuses and file complaints. They will be less afraid.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Thank you very much.

Mr. Hooper, police officers and the member who sponsored the bill have told us a lot about the women who work in the sex industry. However, we would also like to ensure that the bill covers domestic workers, for example.

I know your organization deals a lot with slavery. Do you think that will be more widespread? Can this help exploited people who have experienced trafficking? Could you tell us a little more about that?

[Robert Hooper]

In the language there's often no differentiation between sex and labour, so I certainly think the bill would affect both equally.

What I don't have any information on is whether there is also domestic trafficking in labour of Canadians or permanent residents, for example, from northern communities or “reserves”, as we call them. But certainly that's a potential problem.

From a female point of view, the Canadian Women's Foundation has struck a national task force to look specifically at the issue as it relates to aboriginal women being taken from their culture for sex. But from a domestic labour perspective, I can't help.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Are you dealing with women coming here to Canada from other countries as domestic labour? Is your organization dealing with that a little, or more, or less?

[Robert Hooper]

We have not been asked.... Let me restate that.

There are two cases that I can think of involving people of eastern European descent who were here and who were forced into labour work—one male and one female—in the restaurant business. They were held in the basement of a woman's home in Oakville, Ontario. These cases are rare. Most of the international influx is sex-based.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner, from the Conservative Party, is Mr. Wilks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair, and I thank the witnesses for being here today.

It's funny that I was following my line of questioning here, and then you got on to the point about “concurrent” and “consecutive”. Being a retired member of the RCMP, I have seen many times in the court system cases in which, in my opinion, the concurrent/consecutive opportunity that's available to the judge will always lead to “concurrent” rather than to “consecutive”, because the fact of the matter is that they don't want to be too harsh. When you start relying on that concurrent option, you will always rely on it. Nine times out of ten, I've seen that happen. So I'm glad to see this coming forward.

Ms. Murray asked for an example of deterrence of an offence. I'll give you one from British Columbia, although it's minor, and then I'll get to my question, if I may, Mr. Chair.

British Columbia brought in a deterrent for impaired driving whereby they took determination away from the judges and put it into a provincial ticket, under which you lost your licence automatically for 90 days, you lost your vehicle automatically for 30 days, and the cost of the fines was upwards of $5,000.

People went through the roof; they were mad. But was it effective? You're darn right it was effective. People stopped drinking and driving; they questioned whether they should have even one glass of wine, let alone more, at any bar. The liquor industry was starting to get upset because people weren't buying liquor the way they used to. It worked.

So there's an example wherein, if you make it tough enough, they will be deterred.

Here is my question to you. Our Conservative government has, since 2012, created a national action plan that has directed $25 million over four years to implement certain programs that would assist in this. Through the victims fund, we created, under Public Safety, Canada's contribution program to combat child exploitation and human trafficking. Could you talk to us about those initiatives?

Furthermore, I'm curious as to whether there are other initiatives that you believe the federal government could undertake, from the perspective of programs that would assist the victims of crime.

One that I can think of off the top of my head is that victims, and not just under your circumstances but certainly under most sex-related crimes, are scared blankless to give testimony, because they have to face the accused. I'm wondering whether there is some way of creating programs that would coach victims with their testimony so that they feel more comfortable.

Secondly, I wonder whether there is an opportunity—if not for the federal government, then in some form for the court system—in the case of a sex-related offence in which there is violence or a perception of violence that was going to be undertaken, for the victim to be mandatorily allowed by the judge to give evidence through a video link.

[Robert Hooper]

Concerning the coaching or video testimony, there are tools in place presently to testify from behind a screen, etc. The problem is that these tools are turned upside down. The presumption is that you will face your accuser and that you must get into the witness box, and the onus falls on the victim to ask the crown attorney to apply. So you are revictimized, by virtue of feeling embarrassed or shy that you are—

[David Wilks, Conservative, Kootenay—Columbia, BC]

If I may interject, the question I have is whether you see the opportunity for the federal government to change that legislation so that the application doesn't have to be made, so that it can be a presumption under circumstances.