Justice Committee on May 6th, 2013

[The Chair, Conservative, Mike Wallace]

There you go.

(On clause 1)

On the first clause, there are amendments from the Liberal Party and amendments from the Conservative Party.

The clerks have informed me that the four Liberal amendments are actually out of order, but I will let the Liberal Party speak to the amendments. Then I will read why, based on the clerk's information, they are out of order, and we can go from there.

For that, if you disagree, then you have to challenge the chair, and then there will be a motion to sustain the chair, blah blah blah.

[Voices]

Oh, oh!

[The Chair, Conservative, Mike Wallace]

But we won't worry about that until we get there.

At any rate, for clause 1, the first amendment is from the Liberal Party.

Mr. Casey, I'll turn the floor over to you, if you'd like to move your amendment.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

You have amendment Liberal-1 before you. Bill C-452 requires judges to issue consecutive sentences for offences under section 212 of the Criminal Code. This amendment would allow for exceptions if the judge deems consecutive sentences to be not in the best interests of justice, and would require a written explanation from a judge in such cases.

I wasn't here for the testimony, but I understand that you've heard compelling testimony that concurrent sentences for exploitation are presently the norm, and that this norm has to be reversed in order to create a disincentive for those committing exploitation to expand their operations. I believe that this can be done without compromising the proper role of the judiciary or charter guarantees such as those against cruel and unusual punishment.

As such, this amendment would preserve the bill's instruction to judges that sentences under section 212 of the code are to be served consecutively, while allowing for concurrent sentences in exceptional circumstances, thus retaining judicial discretion. Further, it would require judges to explain in writing their decision to provide concurrent sentences in such cases.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey. I will rule on that amendment.

Bill C-452 amends the Criminal Code to provide for consecutive sentences for offences related to procuring and trafficking in persons. This amendment proposes to include a provision whereby the sentences for those offences could be served concurrently.

As House of Commons Procedure and Practice, second edition, states on page 766, “An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.”

In the opinion of the chair, the inclusion of a provision that could permit sentences for these offences to be served concurrently would be contrary to the key element of the bill and therefore is inadmissible. As amendment Liberal-4 is consequential to this amendment and contains the same provision, it is also inadmissible.

I'm ruling that it is out of order. Are there any questions or comments on that?

Seeing none, we will move on. Shall clause 1 carry?

(Clause 1 agreed to)

(On clause 2)

Clause 2 has amendments.

On government amendment G-1, we have Monsieur Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Chair, you have all the amendments in front of you. I trust that everyone has copies. There's no point in me repeating the amendment, I take it, so I'll just proceed as to the reasoning.

[The Chair, Conservative, Mike Wallace]

Yes, the reasoning would be great. I think everyone has copies.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Very good, Mr. Chair.

This is on subclause 2(1). We're proposing that subclause 2(1) of the bill be deleted. This clause proposed to include the phrase “in a domestic or international context” under “Trafficking in persons”. That's under section 279.01.

The objective of subclause 2(1) is unclear and could cause interpretation problems. If its objective is to ensure that the offences apply to Canadians who commit trafficking offences abroad, the Criminal Code does this already as a result of Joy Smith's bill, Bill C-310, enacted on June 2012, which extended extraterritorial jurisdiction in this context. If the objective is to ensure that the offence applies to trafficking cases involving the crossing of Canada's borders, as well as those that take place entirely within Canada, the offence already applies to both of these scenarios.

Further, the proposed amendment would result in inconsistent treatment between the main trafficking offence and the three others.

[The Chair, Conservative, Mike Wallace]

Thank you for that.

For future reference, your English is so good that if you could slow down a bit for translation that would be great.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Sold.

[The Chair, Conservative, Mike Wallace]

Sold.

Are there any questions on amendment G-1?

Ms. Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

I want to start by thanking all of my colleagues for letting me be here today to discuss the proposed amendments. I could have commented more, but unfortunately, I did not receive them until this morning.

I fully appreciate my colleague Mr. Goguen's position. But what is being added here does not have to do with extraterritorial jurisdiction. It addresses a point that was repeatedly brought to my attention: as things stand now, be it prosecutors or the police, when deciding whether the offence constitutes human trafficking or not, they do so more or less as they see fit.

When it involves foreigners coming to Canada, the trafficking is truly considered international, but when we're talking about domestic trafficking, between cities or provinces, for example, there is a subjective element there. In some cases, it's considered trafficking and in others, it's seen as procuring, if there's sexual exploitation involved. So this doesn't pertain to extraterritorial jurisdiction, which is already dealt with in the Criminal Code. It was Ms. Smith who introduced the measure, for that matter. The purpose is merely to clarify that, in cases where individuals are moved from one city to another or from one province to another, the offence constitutes trafficking and isn't necessarily just a matter of procuring.

The witnesses we heard from today said that, because of the technicality, the Criminal Code could be interpreted differently in some cases, depending on the individuals involved. All this does, then, is make things clear.

[The Chair, Conservative, Mike Wallace]

Merci.

Our next commenter is Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

I agree, actually, with Ms. Mourani. Bill C-452 adds the phrase, “in a domestic or international context” to the offence of trafficking in persons. But this amendment seeks to take it out, if I hear Mr. Goguen correctly, because it's not necessary and because it already applies in domestic or in an international context.

We know from witness testimony and from various NGO reports that this really is, in general terms, an international crime. I think this phrase clarifies Parliament's intent that an offence in human trafficking should be prosecutable whether the trafficking occurred wholly in Canada or beyond its borders. I think it recognizes the scope and scale of the problem, and our desire to address it to the fullest extent possible. I think something is added by having it there, and I don't feel that it should be taken out or that the amendment should pass.

[The Chair, Conservative, Mike Wallace]

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I'd like to hear the opinion of the justice department official.

I understand the point. As I read it, the application isn't limited. When I listen to the bill's sponsor speak, I realize that the application is also seen from a very broad perspective. Both of you are saying the same thing in a different way. It may be helpful to hear your comments on the matter.

Does adding both expressions limit things?

[The Chair, Conservative, Mike Wallace]

Madam Levman.

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

The offence as currently drafted applies to cases that take place entirely within Canada and to cases that cross international borders. In that sense, this is not necessary. It already applies.

The other concern is that this phrase is only added to section 279.01. We that know we have a child-trafficking offence as well as a financial benefit offence and a documents offence, which are equally trafficking offences. If you put a phrase in one offence and not in others, a court may interpret that as meaning something different in the different contexts. I think the lack of consistency may end up being a problem when it's being interpreted by the courts.

[Françoise Boivin, NDP, Gatineau, QC]

That was the point I wanted to make. If we add the expression, we also have to add it to section 279.011. Otherwise, it won't be consistent. There are two possibilities: either we add it everywhere or we don't put it anywhere.

The problem is that we may not have the information we need to determine if it can be added to other provisions. In reading the section as a whole, I was still able to see that it could apply to section 279.011 as well. I don't understand why it no longer applies in the case of minors but it does apply in other contexts.

I believe you answered that. From what I gather, then, even if the idea isn't included in the bill, we will still be achieving what Ms. Mourani is trying to do. Is that what you're telling us?

[Nathalie Levman]

Yes, it currently applies to both the domestic and the international cases.

The other thing you might want to consider is whether or not there are other types of offences that have international aspects that you might want to add that phrase to. I say so because the court may consider, even if it were in all the trafficking offences, that there is a difference between trafficking offences and other offences that take place across Canada's borders.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those answers.

All those in favour of amendment G-1?

(Amendment agreed to)

Now we go to amendment G-2.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Nice and slow....

[The Chair, Conservative, Mike Wallace]

Well, slower....

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'm just kidding, Mr. Chair.

We propose that subclause 2(2) be amended.

This clause proposes to add a presumption that an accused is exploiting a trafficking victim if they are shown to be habitually in the company of that person.

Our proposed amendment would ensure that the clause creates a true presumption, consistent with the existing Criminal Code presumptions, such as that found in subsection 212(3) of the code. Presumptions enable prosecutors to prove a required element of the offence by proving a fact related, which is not an element of the offence.

As currently worded, the proposed presumption does not accomplish this objective, primarily because the presumed fact that the accused is exploiting the victim, is not actually an element of the trafficking offence.

Our amendment would also ensure that the proposed presumption applies equally to the child trafficking offence in subsection 279.01(1), as enacted in June 2010 by Joy Smith's 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).

[The Chair, Conservative, Mike Wallace]

Thank you.

We have comments from Madame Boivin.