I thank you, Chair, and members of the committee. It is an honour to speak on behalf of the Canadian Council of Criminal Defence Lawyers.
I want to let the committee know that I speak not only as a defence lawyer but also as somebody who has represented, in human-trafficking cases, both sex workers and men traditionally known as pimps. I do come to this committee with a different experience.
I echo the comments of what witnesses said previously, as well as the comments in the PACE Society brief that highlights the various levels of consent and voluntariness in sex work. I also echo the concerns expressed regarding anti-trafficking initiatives that may hurt victims or sex workers who are not necessarily the target of this legislation.
Criminal provisions for human trafficking capture those who are victims of both psychological and physical exploitation. I would submit, however, that what they miss are those we would define as “victim offenders”. These are people who have been psychologically exploited for a significant amount of time so that they now are objectively looked at as being in a position of making their own choice. In fact, if you were to delve in and talk to them, they probably are not in that position, and they probably would not be able to say why they choose to do what they do.
That's a lot different from somebody who continues, as Ms. Perrin said, to be in the sex work industry by choice. This is somebody who is giving their money away to somebody else, who is living out of hotels, and yet is now used as an intermediary to essentially get other sex workers. In other words, the person who's the real target of the legislation uses a middle person who is a sex worker and who has already been a victim to perpetrate their crime with another new person. What that means is that the middle person, the sex worker who was a victim and is now in an assisting role to the human trafficker, is captured by criminal legislation.
That becomes a problem because somebody charged with human trafficking faces a minimum sentence of four years. So you're talking about somebody who has not had the ability to speak to the police, has not had the ability to have other options, and now is finally maybe freed from the person who has victimized them—their pimp—but now is in a situation where they can barely defend themselves because they're looking at four years of further imprisonment where they have even less control than they did before.
In one of the cases that came out of the Ontario Court of Justice, that of Natasha Robitaille, Sage Finestone, and Nicholas Faria, Justice Mara Greene talks about an offender who had pleaded to prostitution-related charges. The main person, the male, did plead to human trafficking. What frequently happens, though, is that human trafficking generally gets charged, but it doesn't necessarily result in convictions because of the high standard of proof.
What it gets used for is to ensure that people plead guilty to something lesser to avoid the four-year minimum. In other words, these “victim offenders”, as Justice Green has defined them, will now plead guilty despite the fact that their culpability may be significantly less. Now they maybe have some jail time, and they may also have fewer options than they had when they started the sex work, because now they have a criminal record as a sex offender. They have no ability to travel or do anything else.
When looking at that, one of the things to consider is that there's usually an option for anyone who's been forced psychologically or physically to do something to use the defence of duress. That's not available generally for sex workers, some of whom are working for pimps, because they often have an opportunity to change their situation.
As indicated, they're in rooms alone with clients. They have time when they can contact the police, and therefore they have options to get out of that work. However, that would require them to have that psychological desire to have that time to reflect on what's going on, to reflect on whether they're being victimized or not. Some may not see that as victimization right away. They may see that in time, when they've had some space and some introspection into looking into what has actually occurred to them.
One of the stories I want to let you know of is about someone who I represented who was a female sex worker in this role. She's given me permission to speak of her story.
She had no other options. She started dancing. She had somebody who didn't use physical violence on her, but did use violence on who I would say was a sex co-worker, another woman who was working for him. She gave all her money, and at one point, over some months, she was able to come and go in the hotels as she pleased. In other words, she wasn't under physical constraints, but she always had a level of fear of not obeying her pimp. She was charged with human trafficking, and as usual, the crown withdrew those charges partway through to request her to plead to the prostitution, the procuring charges. She ultimately did not, but it took three years for her to be able to even say her pimp's name. She was so protective of him throughout our time together that she would not say his name. It wasn't until about three years later she was able to not only say his name, but testify to his full legal name in court to help show the court that she was under psychological use. While she's supposedly procuring a woman to be in this work under the guise of human trafficking, she personally wasn't really a party. But it takes years to have someone have that reflection.
When you have legislation that doesn't take into account the vulnerabilities of those who have been victims, and then continue to assist people who they think are the only people on their side, what you end up doing is, as my other friends here have pointed out, taking in people who are more vulnerable to state action, so those who are indigenous, those who are non-white people. In reality, it does seem that when the police intervene they see people who are white as more likely to be victims and those who are not white to be less likely to be victims and more offenders or co-workers of the real human trafficker.
I don't know how I am doing for time, but I will just indicate that the Supreme Court as well has looked at this, but in an immigration sense. It's something to consider, and it's in R. v. Appulonappa where it talked about section 117 being overly broad and about those who are assisting, in other words those who have a different goal. When you're thinking of what to do, the top concern should be who is vulnerable, and how do we protect those who are actually vulnerable and victims of human trafficking, even if they're later in the game and not as recent as who the police may think at the time.