Justice Committee on May 29th, 2023

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Mr. Garrison.

You're looking at the actual definition. This is the Criminal Code, and it's under human trafficking by definition:

For the purposes of sections 279.01 to 279.03, a person exploits another person if they engage in conduct that

(a) causes the other person to provide or offer to provide labour or a service

In other words, that's a third party situation. You brought this up, and I think this is the point you were trying to make. It continues:

(b) involves, in relation to any person, the use or threatened use of force or another form of coercion, the use of deception or fraud, the abuse of a position of trust, power or authority, or any other similar act.

The concern is that it's too broad.

That wording was placed in the bill to capture the primary methods used by traffickers in the Palermo protocol, but it's not exhaustive. There are many methods that traffickers can use to maintain control over the victim.

Further, including that last term, “any...similar act”, allows the legislation to be nimble and the courts to be able to stay consistent with the constantly evolving technologies out there. There are new methods used by traffickers to control their victims. With new technology out there, they're finding different ways. That was the purpose of that.

If it were a situation of prostitution, it should not even be captured under this definition.

Does that make sense to you, Mr. Garrison?

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

I share some of Mr. Fortin's concern about the breadth of the definition in this bill, but I want to back up.

I know it goes without saying, but I am going to say it: Nobody here supports trafficking. What I have most often heard from some law enforcement agencies is, yes, they would like some changes in the Criminal Code, but most of them have said to me that they lack the resources they need to combat trafficking, that it isn't a high enough priority, given their limited resources, to spend the funds to combat it. I'm going to ask you about this.

That's what I've heard from frontline police as the major problem; it's not necessarily the definitional problem in the Criminal Code.

[Colin Carrie, Conservative, Oshawa, ON]

Mr. Garrison, thank you very much for that. I also appreciate the fact that you're listening to police on the ground. When I started engaging on this bill, that is exactly what I did—talk. I found out what was happening on the ground.

I also believe that what you said is correct. The resources aren't there. Now, if you look at the reports in the last few years, you see that the greatest reporting comes from Ontario—where, I think, there is 30% of the population, yet 60% of the reports—and Nova Scotia.

You're going to be having other witnesses here, and I would ask you to put that question to them as well. It's hard to actually prove, but I think, in some people's opinion, the more money they put into the resources to report it, the more reports we're getting. I spoke to Durham Regional Police Service in Oshawa. I must applaud them. Even with a very low volume of resources, respectfully, they're doing a fantastic job.

I really commend the police, because in this situation we now know—and you're aware of it—that the victims quite often don't trust the police. They don't want to go to the police. The idea is this: What else in this very complicated issue of human trafficking can we do, as a society, to start to address some of the other issues that also need to be reformed?

However, I believe this is an excellent start. When you look at stakeholders, you see that Alberta's strategy, in point one, is to change the definition. The Americans write a report on different countries every year. They're asking Canada to come up with an international definition. As you know, Mr. Garrison, this is not just a Canadian situation; it goes across many different borders.

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

I would say, though, that the international protocol was written more than 20 years ago, when the understanding of both sex work and the exploitation of trafficking was a lot more limited than it is today. I'm not exactly sure that is a point in favour, going back to something that was written 20-some years ago.

The other group I have talked to extensively, of course, is sex workers. They fear the unintended consequences of expanding the definition of exploitation so that it takes away agency from those who, either from a positive choice or from circumstances they find themselves in, choose to engage in sex work and in doing so employ others to help them administer their business, keep them safe, and all kinds of other things.

When you say, in this definition, “any other similar act”, they're worried that this will catch people who are not exploiting them, but are working with them to make their work safer.

How do you respond to that concern among sex workers in Canada?

[Colin Carrie, Conservative, Oshawa, ON]

First of all, they have legitimate questions and concerns, but I don't think they need to be concerned about this. As I said, by definition, when you have a choice, that's not something that will be covered in this change of definition.

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

Isn't that exactly what the concept of fear being involved guarantees? If the person has to be afraid, then it's not a choice. When you take away that concept of fear, you've written a very broad definition of the activities that, in many ways, denies agency to those involved.

[Colin Carrie, Conservative, Oshawa, ON]

My response to that would be that when you're looking at human trafficking, as I said, you have a third party involved, not the individual who has actually chosen by their free will to do this.

Again, I used the example in my opening statement of a young woman who made certain decisions voluntarily, but then, after a number of years—if you look at her full testimony at that committee, which I'm sure could be made available to this committee—found herself in a very difficult situation. Her case, under the current law, would not have made the grade as far as getting a prosecution and a conviction.

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

Without the chair here, it's hard to see the card, so I'm out of time. We'll come around again.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Next we'll go to Mr. Caputo for five minutes.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Mr. Chair.

I'm just going to pick up where Mr. Garrison left off here, Dr. Carrie. Perhaps what we're looking at, when Mr. Garrison was talking about people who are making their choices and whom this is intended to catch, I think, is that Hansard would reflect, or should reflect, that this is meant to capture relationships of exploitation.

What do you say to that?

[Colin Carrie, Conservative, Oshawa, ON]

You're correct. This is not meant to be a broad net. It's a specific net. With human trafficking, as Mr. Garrison said, there's not anybody around this table who is going to be standing up in favour of human trafficking and exploitation. The challenge we're having in this country, Mr. Caputo, is that we have a very low conviction rate, and it's not just one thing; it's a combination of things.

When you choose to make a private member's bill, you make a choice, and as you learn about it, you learn that the issue you brought up is much more complicated. However, if you listen to advocates on the ground, who I think this committee is going to have the privilege of hearing from in different testimonies, I think you'll be satisfied that this bill is going to do what it claims to do.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Yes, I'm sure none of us around this table want to see another person trafficked. It is coercive behaviour that really does strike at depriving a person of their dignity: their physical dignity, their sexual dignity, and all sorts of different things. I think we would all agree that we never want to see any of that done.

If we talk about the conviction rates, Dr. Carrie, I think it really goes hand in hand with the nature of the offence, which is the manipulation. It is the abuse of trust in a lot of cases, and typically, the only way to prove the case is going to be through the victim. There isn't going to be some other mechanism. If the evidence isn't going to be coming from the victim, who themselves may have been manipulated, and who is almost always going to have been abused and, oftentimes, is somebody who is otherwise marginalized, then it doesn't surprise me that we see really low conviction rates. I support making legislation that would enable the courts to deal with what I think is really a plague that we underestimate in our society.

You spoke about onus, and sometimes we talk about onus in law. We talk about reverse onuses a lot—we're not going to talk about that here—but you did mention onus. I just want to be clear. This isn't a reverse onus in the legislation, where it talks about...I think you said the onus is on the accused's behaviour. What I take you to mean in that case is that we're looking at what the accused person does and not at what the victim perceives. Is that accurate?

[Colin Carrie, Conservative, Oshawa, ON]

That would be an accurate statement. That's right.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

In this case, the Crown must prove, beyond a reasonable doubt, what the accused person has done as opposed to what the victim perceived, or would have reasonably perceived. In this case, the Crown would have to prove the causation to provide or to offer labour or a service, so they have to contribute to the person doing that; that's legal causation. Then there has to be some sort of threatened force or coercion, or the use of deception or fraud, or the abuse of a position of trust, power or authority, or any similar act.

That's what we're talking about—that exploitative element that you and I discussed at the beginning of our statement about the burden. Your intention is that the burden would be on the Crown to prove it, rather than on the accused to disprove it. Does that make sense?

[Colin Carrie, Conservative, Oshawa, ON]

Exactly. I think that makes sense to everybody. I mentioned it in my opening statement. Why do we treat human trafficking offences differently from other offences? If it was a straightforward crime—I'll use the example of being stabbed, or something like that—you wouldn't have to prove, in my mind, at the time that there was fear, because that would be absurd.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I've met with a survivor of human trafficking, and it had a profound impact on me. I'm not sure how much time I have left, but that was the thrust of my questions.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

We'll now go to Ms. Brière for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Mr. Carrie, thank you for coming to present your bill to us this afternoon.

Bill S‑224 repeals the interpretive provision providing a non-exhaustive list of factors such as a threat, deception or abuse of power that the court may consider in determining whether exploitation or intent to exploit has occurred. There's existing case law on this, namely the Sinclair decision, which dates back several years. The current definition of exploitation was included in the Criminal Code in 2005. That's 17 years of case law.

What will become of all that after your bill passes?

[Colin Carrie, Conservative, Oshawa, ON]

It will be replacing what's on the book right now. I may be wrong, but the Sinclair case was in 2020, not that long ago. Again, the federal government has a role to play here. When the federal government advocates its role, you'll see provincial courts actually take a role. It took until 2020. The courts are now saying that perhaps we don't have to prove fear, and the courts can interpret that in the way they want.

It depends on the judge. If we change it the way I'm suggesting here, it's going to be very clear in federal law what we mean. There won't be that room for interpretation. It will be a certainty. I brought up that case in Alberta where the judge basically said, “Why couldn't you just keep your knees together?”

The original bill I presented in the House mentioned that perhaps there should be training for judges to understand the intricacies of human trafficking. That is not present in this bill. Again, the choice was made that, in all likelihood, if we take a smaller piece, it's more likely to get through the House.

However, there needs to be more education. There needs to be a whole other group of factors that are taken into account in our country in order to help fight this scourge of human trafficking. This is one small step, but it will make a huge difference.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Indeed, speaking of factors, Canada is a country of origin, transit and destination for men, women and children who are victims of sex trafficking. It's also a destination for men and women subjected to forced labour. The majority of cases where charges have been laid in Canada are national cases. It's no secret that this includes sexual exploitation. In other words, mainly Canadian women and girls are victims of trafficking for commercial sexual exploitation, and the majority of buyers are men.

How will this new definition take into account those factors that make women and girls more vulnerable to human trafficking? Additionally, how will it take into account more vulnerable populations, such as indigenous women and girls and the LGBTQ2+ community?

[Colin Carrie, Conservative, Oshawa, ON]

I think we have to recognize that there are different populations that are more susceptible to human trafficking, if we look at the demographics. If you're interested, there are different ways through Statistics Canada to look at that, but you rightly pointed out.... I think it's 85% of those who are trafficked are women and girls, and 25%, I think, are under the age of 18.

You also mentioned quite correctly that Canada is a destination for sexual exploitation. When I was looking at my original bill, I attended a round table at what was called UOIT, in Oshawa. It's called Ontario Tech now, but it was a round table put on about human trafficking and exploitation. At that round table, we had the FBI and the Texas Rangers.

In Texas, they have a different system, in which they have these mandatory minimums. If somebody is caught in Texas trafficking six women, he knows he's facing 60 years in jail most of the time. The officer said to me, “We get this guy to plead out in three months. He's in jail. He's off the street. It's a good thing. Your system is crazy. Listening to these victims here, it may take two or three years to get to court, and then they're revictimized.”

If you listen to some of these victims, your heart goes out to them, because they're getting on with their life and changing it, and then suddenly they have to go back to court and they may be faced.... Because they're on trial, the defence attorney is going to make them the bad person. This means that many of these cases will get dropped.

By changing the definition the way I'm proposing here, it's going to take that onus and it's going to be about the perpetrator, the trafficker. It's not about proving that the victim had an element of fear when the trafficking was occurring.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Brière.

We'll now go to Monsieur Fortin for two and a half minutes.

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

Thank you, Mr. Chair.

Mr. Carrie, as I said earlier, I'd like to know how to determine what behaviour constitutes exploitation. The bill states that a person exploits another if they use or threaten the use of force, coercion, deception or fraud, or the abuse of power or trust. That seems quite broad already, but you're adding “or any other similar act”.

What do you mean by “any other similar act”?

[Colin Carrie, Conservative, Oshawa, ON]

I was trying to explain it a bit earlier. What we have there is a list, and you have read off the list that is in the bill. These are the most common issues in the Palermo protocol, but it's not an exhaustive list. There are a lot of other things going on, and with the—

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

I'd like you to give me some examples, because I'm trying to imagine what it could mean.