Justice Committee on May 6th, 2013

[Françoise Boivin, NDP, Gatineau, QC]

I don't know whether it's due to the fact that I'm not feeling well and my head is a bit foggy, but I'm having a hard time with the numbering for this clause.

If we adopt amendment G-1, basically, we will be deleting subclause 2(1) of the bill. That would mean that clause 2 would no longer contain subclause (1). I'm not sure that the numbering is right, but I might be the confused one. The amendment reads as follows:

That Bill C-452, in clause 2, be amended by replacing lines 1 to 7 on page 2 with the following: “(3) [...]

But it's no longer subclause (3). I assume it should be subclause (2).

[The Chair, Conservative, Mike Wallace]

Do you want to answer that?

[Nathalie Levman]

I believe the (3) is in relation to where it would fall in the actual code—

[Françoise Boivin, NDP, Gatineau, QC]

—the actual bill, but we understand that wouldn't be (3) any more because (1) has just been—

[The Chair, Conservative, Mike Wallace]

Let me answer.

[Françoise Boivin, NDP, Gatineau, QC]

Just so that we're sure of what we're doing—

[The Chair, Conservative, Mike Wallace]

From the clerk, 279.01, the only thing that amendment did was take out the words “in a domestic or international context”. The paragraph in the parent document still exists. All the verbiage was to remove those four or five words.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

The number is plain in this bill, not in the legislation.

[The Chair, Conservative, Mike Wallace]

Is that all right.

Mr. Casey, and then Madame Mourani.

[Sean Casey, Liberal, Charlottetown, PE]

The verb “harbours” has been taken out. It's in the original but it would disappear by virtue of the amendment. Is there a rationale for taking that out?

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

The new definition would take that into account, would it not?

[The Chair, Conservative, Mike Wallace]

Would you like to answer that question?

[Nathalie Levman]

“Harbours” is one of the actus reus verbs in the actual offence. Here, this is describing the related fact that the prosecutor would have to prove. So the prosecutor would prove “living with” or “habitually being in the company of” an exploited person, and once the prosecutor has done that, the prosecutor has made out an actual required element of the offence, which is exercising controlled direction or influence over the movements of that person.

It's a bit of a technical amendment but if you look at subsection 212(3), which is very helpful, it's modelled on subsection 212(3) which was found to be constitutional by the Supreme Court of Canada in 1992, which was why we used that as a model.

[The Chair, Conservative, Mike Wallace]

All right.

Is that okay, Mr. Casey?

[Sean Casey, Liberal, Charlottetown, PE]

I have some submissions with respect to it. I'm satisfied with the answer to the question, but I have some concerns about the amendment. Bear with me, Mr. Chairman. In my submissions there are a couple of hypotheticals, so it's a bit lengthy and it's been prepared in advance.

This amendment replaces the key provision providing the presumption that one who lives with a person being exploited is deemed to have exploited or facilitated for the purposes of trafficking in persons.

The committee will know that we have also submitted an amendment to this section that may or may not be brought up or debated. It specifically references “living off the avails”, which we believe is an important element that should be incorporated. My concerns with respect to the proposed amendment G-2 will necessarily reference the fact that we feel “living off the avails” should be there.

The first general concern is that the presumption here applies to a person who is not exploited, but who “lives with or is habitually in the company of a person who is exploited”. This raises the issue of minors whose parents may be human traffickers or who are unaware of what is occurring. It would also apply, for example, to teachers who may not know that a child in their classroom is the victim of exploitation, as teachers would arguably meet the definition of “habitually being in the company of”.

Certainly, we want to facilitate the prosecution of traffickers, but not at the risk of casting too wide a net. As such, I hope that if amendment G-2 passes, Liberal 3 will be given strong consideration to exempt minors from the operation of this provision. If that language is not acceptable to the government, I hope that it will propose a subamendment to G-2 to address this problem.

My second concern relates to the specifics of the presumption at issue. In Bill C-452, the proposed presumption deems someone living or habitually in the company of an exploited person as exploiting them or facilitating their exploitation. Amendment G-2 stipulates that evidence that someone is in this situation is proof that the person exercises control, direction, or influence over the movements of the exploited person. I believe this presumption is problematic and counterproductive to our shared goal of enhancing the prosecution of human traffickers.

In the presumption in Bill C-452, what is rebuttable is whether or not someone has exploited or facilitated exploitation. This is a different presumption to counter and one that goes to the heart of the matter, namely, exploitation. The wording in this amendment seems to suggest that we are concerned about who exercised control, direction, or influence over the movements of the exploited person or persons.

Let's imagine a scenario where two brothers live together and run a trafficking ring from their house. While one brother who interacts with the exploited individuals would surely be caught by this presumption, the sibling who does only the financing and who has no real interaction with those being exploited may raise arguments that his actions do not control or influence the movements of the persons. He may not be caught by this presumption, whereas the mere fact of his shared residence would be sufficient for a presumption of his involvement under both the bill unamended and under the bill with the Liberal amendment.

While that example illustrates the narrowness of the presumption after amendment under G-2, in some cases it may also be over-broad. For example, women working together as sex workers may not know the extent to which one may be controlled by her pimp, financially or otherwise. But a broad reading of this presumption would operate to target all of the sex workers in habitual contact with her as facilitating her exploitation. I don't believe that's our intention.

We're all aware that a similar presumption, relative to prostitution-related cases, is under review by the Supreme Court in the Bedford case. I don't wish to prejudice their analysis in any way, but I believe that this presumption may operate in a wholly undesirable, if not unconstitutional, way.

Thanks for your patience, Mr. Chairman.

[The Chair, Conservative, Mike Wallace]

Ms. Mourani, go ahead.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chair.

I want to thank my colleague for that amendment. I think it provided more teeth. In the French version, however, if possible, I would like to add the word “et” after “exploitée” so that it reads “qui n'est pas exploitée et vit”. That reads better than “qui n'est pas exploitée vit avec une personne”, which sounds a bit funny to me.

In addition, I'd like to ask Ms. Levman a question about adding “proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation”. Won't that makes things harder for the police who have to collect the proof, even though the onus is reversed? Under the original clause, as soon as a person who is not exploited lives with a person who is exploited, that person is deemed to be exploiting the person being exploited, in the absence of evidence to the contrary. That is very broad, making the police's job much easier in terms of proving the offence beyond a shadow of a doubt using other methods of investigation.

So doesn't adding the words “control”, “direction” and “influence” create obstacles for police, who have to prove the offence? With the amendment, won't they have to first prove the person exercised control, direction or influence before the reverse onus can be applied?

[Nathalie Levman]

No, actually, that's not how the presumption would function. All that the police would have to do is prove that the person lived with or was habitually in the company of the exploited person. Once they've proven that, they've made out one of the required elements of the offence. The expression “exercises control, direction or influence over the movements of a person” was only chosen because it was felt that it best reflected the types of actions that would be involved in living with or being habitually in the company of the exploited person.

So you don't have to prove that actual element of the offence. The related fact is proven; the element is made out. Just to clarify, this is a side issue, but that phrase has actually been interpreted by the Quebec Court of Appeal in a case called Perreault c. R., and it establishes a very low bar.

Even if this presumption doesn't function for whatever reason and the police and prosecutors have to prove in a court of law that someone is exercising control, direction, or influence over the movements of another person, that is fairly easy to make out based on the Quebec Court of Appeal decision. In fact, in a recent case called Urizar c. R., they interpreted that phrase using the Perreault decision.

I'm quite confident that phrase does have meaning in law, even though it doesn't have to be proven for this presumption to function. That's just a side issue since it's come up.

[The Chair, Conservative, Mike Wallace]

Is there anything else?

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you very much. That's a good point.

[The Chair, Conservative, Mike Wallace]

Okay, thank you.

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I just want to make sure my understanding of the burden of proof is correct as far as what the police, or rather the Crown, have to prove. It is, after all, the crown attorney who has to establish the proof. This doesn't make things harder for them than the original bill did. Unless I'm mistaken, we're repeating the language in sections 279.01 and 279.011 of the Criminal Code. We're doing somewhat the same thing when it comes to section 212 and the language regarding the presumption and evidence that the person lives with or is habitually in the company of a prostitute. So we're always repeating the language of the offence itself. That seems to make things clearer than they were originally in Bill C-452. That's what you're telling us, basically.

Using that language has absolutely no bearing on the strength of the burden of proof for the Crown. That's what the bill is trying to do, in other words, provide more tools to eradicate a scourge. That should be our focus. Indeed, if we want to send a crystal clear message that we have zero tolerance for human trafficking and we want to give police more tools, the language in question is perfectly fine.

Is my understanding correct? If so, then, I'm okay with it.

[Nathalie Levman]

I believe so. I believe this accomplishes the same goal as is in Bill C-452, but it better reflects the type of language that's already used in the Criminal Code and that has been found to be constitutional, so it's safer. But it affects the same thing.

[Françoise Boivin, NDP, Gatineau, QC]

Are you worried with regard to the examples that Mr. Casey was mentioning? Because I thought they were a bit off the wall, in a sense, in that I don't think teachers would be.... I have a hard time seeing it, honestly. I mean, of course I can take the most extreme cases, but if the objective is really to send a strong signal against human trafficking, should I worry about teachers being brought in front of courts?

[Nathalie Levman]

One would have to conceive of a situation in which a teacher would be living with or “habitually in the company of” an exploited person, so I leave that to your....