Justice Committee on May 6th, 2013

[Françoise Boivin, NDP, Gatineau, QC]

Thanks.

[The Chair, Conservative, Mike Wallace]

Is there any further discussion on amendment G-2?

Seeing none, all those in favour?

Ms. Smith, you can't vote. I'm sorry. I know you'd like to but you can't.

[Voices]

Oh, oh!

[The Chair, Conservative, Mike Wallace]

(Amendment agreed to)

That is carried, and now we're on to amendment Liberal-2, which I think in a sense was basically introduced by Mr. Casey.

Do you want to move the item?

[Sean Casey, Liberal, Charlottetown, PE]

Yes, please.

Mr. Chair, you have Bill C-452 before you. I referred to this in my intervention with respect to amendment G-2. Essentially, this adds in the provisions with respect to living off the avails of human trafficking or exploitation, so it deals with the example I referred to in amendment G-2, the example of the two brothers, where one would have the availability of the presumption. One would be forced to deal with the rebuttable presumption, but the financier wouldn't. This would catch him.

I do share the concern of the sponsor of the bill and the witnesses over low prosecution rates for trafficking offences and agree that the presumption provisions may be beneficial. Such provisions, while not unprecedented in the Criminal Code, are limited in number, and rightly so, given the presumption of innocence. The committee has heard testimony that this reversal would help convict offenders when the victims of exploitation are too frightened to testify. This is a worthy goal, and I'm not seeking to do away with the reversal of the burden of proof.

I am, however, seeking to ensure that this extraordinary measure will not unintentionally lead to the conviction of a person who is not guilty. The current wording of the bill applies this provision to anyone who is “habitually in the company of” an exploited person, which is overly broad. The amendment would require someone to be living off the avails of the exploitation in order for the reversal of burden to apply.

Given the importance of these reverse onus provisions to the presumption of innocence, I think it's extremely important that we get it right. On the suggestion that the example may be off the wall, I don't think the example of the two brothers is. I heard Mr. Calkins referring to the availability of the aiding and abetting provisions within the Criminal Code, which would provide some assistance with respect to the actual offence, but in terms of the rebuttable presumption that we're now building in, it wouldn't.

I would ask that this be considered. Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for that. As chair, I'm going to rule that it's inadmissible and I'm going to give you the Reader's Digest version why.

This amendment proposes to create a new parameter whereby the presumption cannot exist unless it is first proven that the person is living “on the avails of the exploitation”. As House of Commons Procedure and Practice, second edition, states, again on page 766, “An amendment to a bill that was referred to a 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 this parameter is contrary to the basic premise of the presumption contained in clause 2 and is therefore inadmissible.

Is there any further comment on that? No? Okay.

Now we'll go to amendment Liberal-3.

Would you like to move it, Mr. Casey?

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

The amendment is before you. This one is fairly straightforward. It would exempt minors from these reverse onus provisions that we just talked about. I need to remind you that minors could still be prosecuted for commission of this offence to the full extent of the law. That doesn't change with the Liberal amendment. The simple change is that they would be prosecuted in the normal course with the crown having the full burden of proof throughout the proceedings and not having the benefit of this rebuttable presumption. So it does not change the fact that minors can be prosecuted. It does change this evidentiary shift that is contained in the law now. That's what this proposes to do.

I would ask all members of the committee to join me in inserting this important safeguard into the bill.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for that.

I am going to rule now that this amendment proposes to introduce an exception to the provisions of presumption by limiting its application to that of persons over the age of 18, and of course, the House of Commons Procedure and Practice, second edition, again, on page 766—I should read that page more closely, I guess—reads, “An amendment to a bill that was referred to a 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, by limiting the application of this section, the amendment would be seeking to introduce an exception where none currently exists. This is a new concept that is beyond the scope of the bill, and therefore inadmissible.

(Clause 2 as amended agreed to)

(On clause 3)

On clause 3, we have G-3, the third amendment from the government side.

The floor is yours, Monsieur Goguen.

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

Okay, Mr. Chair.

There are subclauses 3(1) and 3(2), and what we're proposing to do is delete 3(2) so there will no longer be a 3(1), there will just be a clause 3. Those are the two parts of it.

Now I'll give you the rationale for why we're proposing to delete subclause 3(2).

This clause would create a new definition of exploitation for the purposes of trafficking offences, which would include specified means such as the use of force, fraud, deception, and abuse of authority, or a situation of vulnerability. Subclause 3(2) is vague and includes concepts that have not been interpreted by Canadian law, and is therefore likely to confuse. Moreover, the issue that this amendment proposes to address was already clarified by Joy Smith's Bill C-310, An Act to amend the Criminal Code (trafficking in persons), which enacted an interpretive provision that stipulates factors the court may consider in determining whether an accused exploited another person for the purposes of the trafficking provisions.

These factors include whether the accused used force, or deception, or whether the accused abused a position of trust, power, or authority.

[The Chair, Conservative, Mike Wallace]

Thank you. Are there any questions or comments?

Madame Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

As I understand it, point (a) of the amendment is intended to remove the redrafted version of subsection 279.04(1) of the Criminal Code, from clause 3.

Perhaps Ms. Levman could confirm this for us, but currently, the English version of subsection 279.04(1) reads “to provide, or offer to provide”. But the French doesn't have that nuance. It says “à fournir son travail”, and not “à fournir son travail, ou à offrir de fournir son travail”. There's an inconsistency between the English and French versions.

This provision is supposed to correct that inconsistency. Is that correct?

[Nathalie Levman]

And you're absolutely right. In fact, I was involved in the original drafting of the provision, and this wording was in the original drafting, I think, unfortunately, by error. It was removed by Bill C-310 when C-310 was enacted. It just was something that the drafters didn't catch.

So I'm sure everyone will be very grateful to you for this correction. It's going back to how it was originally drafted.

[Maria Mourani, Bloc, Ahuntsic, QC]

I would point out to my colleague that, by stating “par substitution, à la ligne 7, page 2” in amendment G-3, it actually reintroduces the old subclause in French, which is not the same as it is in English. So we're back to square one.

As it stands now, subsection 279.04(1) of the Criminal Code doesn't contain the same nuance that the English does. By doing this replacement, we're likely to end up back at square one. That's the first point I wanted to make about the amendment.

I'll let you respond to that, Mr. Goguen.

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

We're actually not touching the proposed definition for subsection 279.04(1) of the Criminal Code. Since we're removing the second subclause of clause 3 in the bill, that leaves only one subclause. Instead of having subclause 3(1), it will just be clause 3, because there won't be anything after it.

The definition you proposed won't change in the least. All that will change is the numbering. So we support the correction you're making.

[Maria Mourani, Bloc, Ahuntsic, QC]

By correction, then, you're referring to adding the words “ou à offrir de fournir”. Is that what you're saying? You say you're supporting the correction, but I can't see that. Forgive me.

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

I'll show you; it'll be easier that way.

[Maria Mourani, Bloc, Ahuntsic, QC]

I am indeed a visual learner. Go ahead.

[The Chair, Conservative, Mike Wallace]

Will it take long?

[An hon. member]

No.

[Some hon. members]

Oh, oh!

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

I'll speak slowly.

There's no longer a subclause (2), so we're removing the mention of subclause (1). That way, it becomes simply clause 3.

[Maria Mourani, Bloc, Ahuntsic, QC]

I see. That's fine.

But there's another point I want to raise concerning the amendment.

[An hon. member]

The government is here to help.

[Some hon. members]

Oh, oh!

[Maria Mourani, Bloc, Ahuntsic, QC]

The other thing the amendment is doing is deleting subsection (1.1), which was added to refer specifically to sexual exploitation. It was added because, as the Criminal Code currently stands, labour is defined as follows: “For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service [...]”. Prostitution and sexual exploitation aren't, however, services. We have to be careful here.

Every women's group I consulted with is asking that, under the Criminal Code, prostitution cease to be considered labour or a service. It is neither. It's sexual exploitation.

Actually, nothing in subsection 279.04(1) is changing. We're merely adding a subsection (1.1) to set out as clear of a definition as possible of all the methods that procurers can use to trap victims and exploit them. We're proposing this new subsection, in the context of sexual exploitation, to try to provide for all possibilities, whether it's providing, or offering to provide, sexual services by the use or threat of force, by fraud, deception, manipulation, by obtaining the consent of a person or by whatever means it may be. We tried to provide for all possibilities because I was even told that, in some cases, procurers were able to argue that they had never given the money to the victims. That's why we added the idea of the promise even without the acceptance of payments. It's so comprehensive that it covers, to the extent possible, all the cases I was told about.

So I urge my government colleagues to rethink their amendment. I believe it's paramount that we distinguish between sexual exploitation, services and all the details that go along with that.