Justice Committee on May 29th, 2023

[The Chair, Liberal, Randeep Sarai]

I will call this meeting to order.

Welcome to meeting number 67 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on March 22, 2023, the committee is meeting in public to begin its study of Bill S-224, an act to amend the Criminal Code (trafficking in persons).

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

Since our witness is a member and he already knows how to use the Zoom and interpretation features in the House—and I don't think there's anybody externally who does not know—I won't go into those.

I would like to welcome Dr. Colin Carrie, member of Parliament for Oshawa, the sponsor of Bill S-224, for the first hour of our meeting.

Welcome to the committee, Mr. Carrie. You have five minutes to present if you have opening remarks, and then we will go to questions from members.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Mr. Chair.

Today I will be speaking to Bill S-224, a non-partisan bill that passed unanimously in the Senate on October 6, 2022.

This bill had its start as Bill C-461, which I was honoured to present in the House on June 17, 2019. Unfortunately, it died on the Order Paper.

I want to thank Senator Ataullahjan for taking up the cause and successfully stickhandling this through the Senate. I want to thank Arnold Viersen for his unending commitment to ending human trafficking. I also want to thank an amazing community of supporters, victims, moms and dads, survivors and many other stakeholders.

I want to share the experience of a survivor that I heard recently at a forum organized by the All Party Parliamentary Group to End Modern Slavery and Human Trafficking. Alexandra spoke to us about her experience, saying:

I walked into the commercial sex industry at 20 years old. I was an adult, over the age of consent and able to make informed decisions for my own body. I believed that I was taking control of my sexuality by using it for personal gains. I never thought of my boyfriend as a pimp. And I certainly never considered my situation to be trafficking. It wasn't until 10 years after my experience, that I was informed I was trafficked.

She went on:

This is the reality you need to understand: I made choices and I was manipulated. I believed I was a consenting, empowered adult and I was exploited by my boyfriend.

Had the police intervened in Alexandra's situation under our current laws, it's unlikely her case would have fit what they look for, as it's focused on the victim's mindset, and she wasn't afraid.

The purpose of the bill is to align Canada's law so that it is consistent with international law aligned with the Palermo protocol—a protocol that we as a country ratified in 2002—and properly places the focus on the actions of the trafficker. It will facilitate convictions against those who participate in human trafficking in Canada by amending the Criminal Code's definition of exploitation and human trafficking offences, so that the Crown is no longer required to prove a reasonable person in the victim's circumstances feared for their safety or the safety of someone they know. This will put the onus on the perpetrator rather than the survivors.

Our current code reads as follows:

279.04(1) 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 by engaging in conduct that, in all [of] the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

In contrast to our definition, the Palermo protocol views human trafficking as having three distinct elements: the act, the means and the purpose. Human trafficking is defined as the act of recruiting, transporting, harbouring and receiving a person by means of coercion, abuse of power or deception for the purpose of exploitation. This is not reflected in Canada's Criminal Code.

Colleagues, we have a serious lack of convictions here in Canada. The latest statistics from Stats Canada are really compelling. They were released in May 2021 and showed the serious challenge that police face when trying to get a conviction, and it's only getting worse. When examining court decisions from 2018-19 by charge, overall, the vast majority—89% of human trafficking charges—were stayed, withdrawn, dismissed or discharged. Less than one in 10—seven per cent—of the charges resulted in a guilty finding.

Now, I want members to pause and to think about the situation in Canada for victims of human trafficking. A crime is committed. There is no debate as to whether or not the acts have occurred, yet under Canadian law the victim is required to prove fear in order for a conviction to occur.

To emphasize the absurdity of the situation, let's apply this requirement to another crime. Imagine that someone I know comes up and stabs me. How would I prove fear in that situation? Would the offender be convicted if there were proof of their crime but fear could not be proven? I ask you, why do we treat the crime of human trafficking so differently? Human trafficking is a scourge, mostly on vulnerable young people and their families, across Canada.

This overdue change is consistently brought up in conversations by stakeholders across the country and internationally. Vulnerable young people often think of their abuser as their friend and think their abuser cares for them and loves them. Often, the Crown's case depends on the victim's testimony, the only evidence against the trafficker. Without the victim's testimony, there is no case. In Canada, it sometimes takes years to come to court. There, the victims can be victimized again and again. Usually a conviction is not obtained.

The Palermo protocol was adopted in November 2000. It has 117 signatories, including Canada, and more than 22 years have passed, yet this small but important change is still not reflected in our Criminal Code.

Human trafficking is on the rise. Traffickers seek out young people dealing with substance abuse, traumas, addictions, abuse and homelessness. Women and girls, indigenous children, new immigrants, persons living with disabilities, LGBTQ2+ persons and migrant workers are among the most at-risk groups.

We need to give victims every tool possible to allow the return of their dignity, their humanity. Bill S-224 is another tool, and it is a long-overdue change.

Thank you, colleagues, and I look forward to your questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Dr. Carrie.

Now we'll go to our first round for six minutes, and we'll start with Mr. Brock.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Welcome, Dr. Carrie, to the justice committee. Thank you for the passion with which you stand behind this important piece of proposed legislation.

I listened very carefully to what you said. All of your content was very informative. The biggest takeaway for me, and I guess the most startling aspect of what you had to share with us, is the statistics that exist. Notwithstanding the prevalence of this scourge that you've properly identified in society—it's a worldwide phenomenon, and Canada tends to be a hotbed of criminal activity, particularly in this area—and the popularity of this particular crime, unfortunately the criminal justice system has failed too many victims, particularly vulnerable victims from marginalized communities, speaking of indigenous women and girls and LGBTQ community members.

I think this is an important step along the way of trying to address these wrongs. I know that, as a prosecutor, I never really had the ability to prosecute a person charged with human trafficking per se. Inevitably, the police, recognizing the limitations prosecutors would have in order to be able to prove these offences, would often look at other offences in the Criminal Code to perhaps ease the burden that prosecutors would face.

I'd like to hear your thoughts on this aspect, this particular question. I took some time to review Senator Ataullahjan's interventions in the Senate during one of the committee studies, and what stood out in my mind was her comments that in her view this would lead to a greater ability of prosecutors to be able to prove the case, that this would, in her view, tend to allow more victims to come forward without the element of fear needing to be proven in court. She also mentioned that it would remove the burden of proof on the prosecutor and actually relay that or transfer that to the accused.

I have some concerns about the latter aspect, but I'd like to have your thoughts on the first two.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Mr. Brock. I really respect your experience.

First, I'd like to talk about the statistics. They're extremely troubling. Back in 2015, human trafficking, if you look at the latest StatsCan report.... There were about 300 reported cases per 100,000. In 2019, it's up to 500 reported cases, so that's a 40% increase in just four years.

We know that because of COVID and all kinds of different things happening right now in our country, the numbers are just going up, so it's incredibly disturbing.

You mentioned Senator Ataullahjan's comments in the Senate. I thought she did a very good job.

The reality is.... Where in the world do we have victims, sometimes child victims—I think 25% of people being trafficked are under the age of 18, and they sometimes, quite often, depend on their trafficker for basic necessities of life, such as food and shelter—having to prove in a court of law that they actually feared their traffickers?

Changing this definition, this long-overdue definition—by the way, we decided 23 years ago to make this change—puts an extra tool in the tool box. It's certainly a very complicated issue. It's not going to be the be-all and end-all, but it's going to give another tool to prosecutors in order to enable more victims to come to court. Now there isn't this unfair burden of victims' having to prove that they feared their perpetrators, which in many cases, even the example I brought forward, just isn't the case.

[Larry Brock, Conservative, Brantford—Brant, ON]

What do you say about the potential for this to enable more victims to come forward? What are your thoughts on that?

[Colin Carrie, Conservative, Oshawa, ON]

I think it's true. When we look at the reality out there in Canada, there are so many reasons victims may not want to come forward. Other countries, for example, have more stringent sentencing and more clarity.

If a young person in particular is being trafficked, just imagine the fear they have going into court, the stigma. The current definition, for example, has the term “reasonableness” in it. You are a lawyer. Lawyers are very smart; they know the system. By having reasonableness in it, you can introduce things like the stigmas that surround human trafficking and other factors that can be put in there to cause doubt.

Quite often victims will recant what they've said; they live in fear of these traffickers. They know the sentences, too, and that they're going to be out in a shorter period of time. This is not designed to be the be-all and end-all, but it will be another tool to give Crown prosecutors the ability to get more people into court and hopefully get more convictions.

[Larry Brock, Conservative, Brantford—Brant, ON]

That's certainly very welcome, so thank you for the opportunity to ask you questions, Dr. Carrie.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

We'll now go to Mr. Naqvi for six minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Chair.

Mr. Carrie, thank you for being here today and talking about your bill.

I want to start by getting some of your impressions on all the work you've done in putting together this bill. The question that we've often talked about in this committee.... We did a study on sex workers as well. How does one distinguish between someone who's actively involved in sex work versus somebody who is being used to perform sexual work and may naively believe that their trafficker has their best interest in mind?

What have you found as you were working on this bill around that distinction, and what advice do you have for this committee as to how you create that distinction?

[Colin Carrie, Conservative, Oshawa, ON]

The distinction is incredibly important.

When you're looking at prostitution and when you're looking at human trafficking, it's important to realize that human trafficking isn't just prostitution. One of the biggest cases we had in Canada was with workers who were brought over to this country, and then the traffickers were threatening the family back home. We see that quite often.

When you're dealing with human trafficking, the difference between that and prostitution would be that you need a third party in human trafficking. In other words, people don't traffic themselves.

I would be, for example, the human trafficker, trafficking you to somebody else and being able to have control of that situation. Prostitution in itself is not necessarily human trafficking. I think it's important to make that distinction.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Is there a legal analysis or legal test that you would propose that creates that distinction?

[Colin Carrie, Conservative, Oshawa, ON]

I think the difference is already quite clear legally. As I said, from the point of view of human trafficking and exploitation, you need to have a third person involved. When you look at sex work, if you want to define sex work and you speak to sex workers, that's a choice they're making.

My opening example is a young woman who entered sex work of her own volition, but when you have a third party involved, it's not necessarily that choice.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Your bill deals with a definition of exploitation. I take it more as being presented as a clarification around the definition. The current definition of exploitation in the Criminal Code focuses on the impact of the trafficker's conduct on a reasonable person in the situation of the victim. The current definition has about 17 or so years of case law associated with it.

Can you give this committee some thoughts on what you think will happen to the existing case law as it relates to defining what exploitation is with the passage of Bill S-224, if it passes?

[Colin Carrie, Conservative, Oshawa, ON]

You're correct that there are 17 years of case law, but I would argue that with the current definition, it really hasn't worked. If we're looking at a 7% or 8% conviction rate, something has to change.

I'm sure you'll be having Department of Justice lawyers here. I think they will discuss the case law. They may talk about recent case law in Ontario. I think the Sinclair case was in 2020. In Quebec there was case law. They mentioned, because of the case law, that perhaps now you don't have to prove fear. However, I would argue to committee and to Canadians that a lot of this depends on the judge you get. We're all aware of that case in Alberta in which a federal judge asked a victim, “Why couldn't you just keep your knees together?” I think all of us are offended by a comment like that, whereas if we actually replace the definition with something that is internationally recognized, there will be clarity in that regard and an opportunity that we can move up that 8% conviction rate.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

In your mind, what's the key difference between the definition in the jurisprudence and the one you present in this particular bill?

[Colin Carrie, Conservative, Oshawa, ON]

The key difference is that the onus will now be on the trafficker—on his behaviour, not the victim's. Currently, in order to get a conviction you have to prove fear. In many cases of human trafficking, as I mentioned in the opening, the person being trafficked may not necessarily fear their trafficker. They may be convinced that it's a boyfriend. Sometimes, sadly, it's a family member, somebody they rely on. That, I think, is absurd. Why are we treating victims of human trafficking differently? Again, I brought up the absurd example of another crime: If I were stabbed, I wouldn't have to worry about proving fear.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

That's great. Thank you very much.

Thank you, Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

Now we'll go to Monsieur Fortin for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Good day, Mr. Carrie. Thank you for coming.

I've been listening to you from the start, and I must say what you're saying sounds reasonable. That said, the part about the reasonable apprehension of fear does not sit well with me. Over the past few years, this committee has conducted several studies on the issue of sexual services and human trafficking, among other issues.

To my great surprise—I had no idea—I learned that women, men and individuals participating in prostitution sometimes hire a bodyguard, a driver or someone to make their appointments. Those individuals came before the committee to ask us to retain their right to organized work, with the best possible working conditions. One can agree with that or not, but that's what we were told. Ultimately, the message they gave us was that, as long as they agreed, as long as they were the key actors, if I can put it like that, it should be allowed.

However, you're eliminating the criterion that the victim have a reasonable apprehension of fear. I'm a bit troubled by that, and I wonder where this is going. Let's say a person participating in prostitution hires someone to make their appointments, and that individual tells the sex worker that they'll have to work Thursday evening from seven to 10. Will that individual be considered to be inciting the sex worker to participate in prostitution, to be engaging in exploitation for the purposes of human trafficking? Ultimately, it's the individual participating in prostitution who decided to have the other person make their appointments.

That may not be best example, but I'm a bit troubled by those concepts. As I indicated, I don't know much about it, but it seems reasonable to me that the individual being exploited must have a reasonable apprehension of fear. Do you agree with me on that point?

[Colin Carrie, Conservative, Oshawa, ON]

Mr. Fortin, first, I want to thank you very much for that question.

I would suggest to you that someone who is participating in prostitution and hires someone for their business is one case where somebody selects that as a choice. The people they would hire to make appointments, etc., is part of that unique situation of choice.

What I'm trying to get at with this particular bill.... I'll try to use the same analogy that you made.

Let's assume for a moment that you can imagine the worst human being ever. It's somebody who lies and coerces. He has recruited you. He's done that through force. He's done that and he's maybe provided you with heroin. He may have locked you up in your room and said that you're not even allowed to go to the washroom until you come out and agree to do what he needs you to do today. He says he needs you to make $1,000 for him.

You work in that situation for a number of years and you become engaged with this individual. You may start thinking of him as a boyfriend. Down the road, he says to you that he wants you to now look after these other three in his business. He wants you to beat them. He want you to look after them. It's your responsibility to make $1,000 per girl for him. If that's not the case, he's going to beat you more. He's going to perhaps not allow you that puppy that he bought you, which is the one thing you love. He says he's going to kill your puppy. He's going to go after your family, your brother or your sister.

This is the difference. This is somebody who is criminally coercing and taking advantage of somebody. Quite often it's somebody who is very young.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

That's a good example, Mr. Carrie.

You're talking about violence and threats, among other things, and we'll come back to that. However, in those situations, I think that victims would have no trouble convincing a court that they have a reasonable apprehension of fear. In your example, it's very clear. If they have no such apprehension, then I'm a bit concerned.

Proposed paragraph 279.04(1)(b) states that a person exploits another person if they engage in conduct that involves the use or threatened use of force or another form of coercion, the use of deception or fraud, or the abuse of a position of trust, power or authority. It's fairly comprehensive. However, you're adding “or any other similar act”. When I read that, it brings me to my previous question: What similar acts could be used to convict someone?

I'll go back to my example. If someone participating in prostitution hires a driver, someone to make their appointments or anyone else, and the person hired tells the sex worker that they have to work because that individual asked them to work that evening and they have something else planned, would that constitute a “similar act”? I don't know.

I think those few words cast a wide net. I like how succinct your bill is; however, it's very broad and that's a bit concerning.

[Colin Carrie, Conservative, Oshawa, ON]

Mr. Fortin, thank you for a very important—

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

You're slightly out of time. Hopefully, we'll get some time again.

Mr. Garrison, you have six minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Let me start by allowing Mr. Carrie to answer that question.