Justice Committee on June 12th, 2023

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Hello, Mr. Chair. I'm replacing Mr. Fortin.

Hello to everyone.

I would like to thank the witnesses for being with us and for their very exact testimony.

Ms. Benedet, you quickly set out four points. First, you said that we shouldn't take this issue lightly. Second, you said that, for human trafficking to exist, there had to be traffickers. Your clarification on this point was quite clear. Then you mentioned that currently, only 12% of indictments lead to real charges. So it's a very difficult thing to prove. On this subject, you said something that struck me: we need to focus on the trafficker's activities. I'd like you to expand on that.

What more should be done? Should there be a specific change to the bill in its current form?

[Dr. Janine Benedet]

I'll just say that while I appreciate very much the work that Ms. Wood is doing, I certainly don't agree with her analysis that 80% to 90% of the sex trade involves people who are not exploited. Whether a third party is involved or not, there's still a considerable amount of exploitation that typically pushes people into prostitution. That's the reason we have such an overrepresentation of indigenous women and girls in the sex trade.

In direct answer to your question, which is, “What else can we do?”, here I would encourage the committee to look at some of the initiatives that have been brought forward by member states in Europe. In particular, the Organization for Security and Co-operation in Europe, the OSCE, has a bureau to combat the trafficking of persons. It does a lot of really excellent monitoring. I would say that of all the member states, France is the country that by far has gone the furthest with this. It's really about bringing our domestic laws into line with our international obligations. We have an international obligation to punish human trafficking, and we have a definition internationally that speaks about the exploitation of a condition of vulnerability.

My worry with Bill S-224—it's an improvement, certainly—is that still we've just moved the focus on coercion, physical force, fear and threats into the definition of exploitation. We got rid of the reasonableness requirement—that's a step in the right direction—but the question will be, well, how do the courts interpret “any other similar act”? Are they going to recognize threats to report you for welfare fraud? Are they going to recognize threats to disclose pornographic photographs to your family members? Are those going to be seen as forms of coercion? Are they going to recognize that kind of emotional manipulation? We had a notorious trafficker in Vancouver who bought a small dog. If the girls were good, they got to take the dog for walks. If they were bad, he would abuse or threaten to abuse the dog.

These are all very effective techniques for keeping women in line. We just have to make sure we're not narrowing the definition in a way that's artificial. To me, the way to do that is to look to our international commitments.

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Thank you very much, Ms. Benedet. You raised something important when you said that the committee should look at the measures put forward by OSCE member states. Unfortunately, my speaking time is very limited and I won't have time to ask you to explain further. However, I would very much like you to submit in writing to the committee, if possible, two or three recommendations for measures that you have seen elsewhere, that you consider relevant and that could enrich the committee's thinking.

Before my time is up, I'd like to allow you to clarify something. You talked about the fact that the Palermo protocol and the Criminal Code don't match up. Can you quickly clarify that and tell us what would need to be changed in the bill to make it consistent?

[Dr. Janine Benedet]

The Palermo protocol, when it lists the ways in which people can be exploited by traffickers, mentions many of the things that are in this bill—force, coercion, deception and fraud—but it also speaks about the exploitation of “a position of vulnerability”. That's the language in the Palermo protocol.

I'm just pointing out that it doesn't appear anywhere in Canada's human trafficking laws, and it's useful, and particularly useful for minor victims of trafficking, where sometimes the grooming and the manipulation mean that you won't see force, coercion, deception and fraud. We're going to have to rely on the courts to say, well, the trafficker is in a position of trust or authority merely because he's an adult, and that's not what we've seen in the exploitation offence in section 153—

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

I apologize for interrupting you, Ms. Benedet, but I want to clarify something before my time is up.

As I understand it, you're clearly recommending that we introduce the notion of exploiting a vulnerability into the bill, through an amendment of some kind. Have I understood you correctly?

[Dr. Janine Benedet]

That's right.

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next we will go to Mr. Garrison for six minutes.

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

Thank you very much, Mr. Chair.

I want to take a step back from the details of the bill and ask Sandra Ka Hon Chu and Elene Lam a question.

The bill seems to presume that while we all know there's a problem with trafficking, the solution is to get more convictions. I think, in your brief that was circulated to the committee, you made some suggestions about what might be more effective in reducing trafficking than focusing on convictions.

[Sandra Ka Hon Chu]

Yes. Thank you for that, Mr. Garrison.

I'll take that first, Elene, and then I'll pass it over to you.

We mentioned in particular the decriminalization of sex work, because we think this bill equates sex work with sexual exploitation. Decriminalizing sex work, when you actually do that, allows people who are experiencing abuse and exploitation within sex work to have the benefits of labour and employment legislation, occupational health and safety legislation and all the things that other people within non-criminalized sectors have access to.

I also want to make a quick point about the Palermo protocol, because that was such a big point discussed by the previous speaker. The UN itself has criticized this pre-existing vulnerability condition as being so broad and vague that it will capture anything, including irregular immigration status and people who are managers, supervisors and transporters who provide supportive services to sex workers. I would caution against expanding that notion. The current definition of human trafficking does not require a threat to physical safety. It already includes threats of psychological safety. You already do not require a complainant to testify. It is interpreted so broadly as it currently stands that expanding it to include this will be capturing far more people.

I will turn it over to Elene, who has already shared the experience of Butterfly, but the UN itself has criticized expanding this notion.

[Elene Lam]

I think, when we talk about this issue, we need to be clear about what we are going to do here. Are we going to end exploitation and trafficking, or are we going to end sex work? I think this needs to be very clear. I keep hearing the conflation that actually gives a lot of misinformation, that the goal is ending exploitation and not ending sex work, but a lot of recommendations on ending sex work actually create vulnerability and more opportunity for the exploitation of the community, particularly Asian migrant sex workers and racialized sex workers.

When we think about the solution, we need to think about what makes people have the power. We talk a lot about why there is exploitation, which is about the power dynamic and power control. Many of the recommendations, such as keeping more policing in people's lives and more criminal laws, actually make it more difficult for people to protect themselves and to access power. Many of Sandra's recommendations suggest giving the power to the individual.

When I hear the assumption that people cannot make decisions about their own lives themselves, this is extremely violent, because it takes away the agency of people, particularly sex workers. No matter how old the sex worker is, there is a certain agency that people need to exercise. Instead of imposing the moralistic agenda that sex work is bad and they should not do it, we need to recognize and understand the complexity of the relationship. Give people the power and resources so they can make decisions on their lives, like we've done with domestic violence. We would not have the police go and arrest the husband, saying, “You don't know your husband is abusive. You may find it out five years later and arrest your husband.” Why would we do that with sex workers? Instead, you let people know what the power is within the marital relationship. You can have different kinds of support. You can make yourself safe if you want to leave this relationship. What kind of support do you have?

It's similar to sex workers. Assuming that all third parties are dangerous, violent and trafficking is extremely ridiculous. We have workers who do not have credit cards. Their husbands use their credit cards to pay for the bill and are being charged. That is the law and that is what happens now. Now they are not only being charged under sex worker laws. They're being charged by the trafficking law and potentially put away for years in prison.

When you see the picture of who the traffickers are, they are young Black men. When you see the statistics on who are being charged by the third party law, many of them are youth themselves. They help other people. Are we going to see more of our community sex workers and more community racialized people put in prison? Is this something that's a solution? It's not. Here we have a lot of recommendations that are not going to end trafficking. They're not going to end exploitation. They will just make the sex workers, people in the sex industry, more vulnerable, more stigmatized and more marginalized.

That's why, when we ask about solutions, we ask about how we can give power to people and give people their agency. They can tell you what they want and what they need, instead of you assuming that they have no brains and they don't know they are being trafficked. It's about how we can support people to build capacity and have agency to make better decisions about their lives, instead of you putting your moralistic agenda on their lives.

This is what sex workers keep saying: Sex workers should have the right to decide whether they want to continue their work or stop their work. They should have their own say.

Thank you.

[The Chair, Liberal, Randeep Sarai]

You still have 30 seconds, Mr. Garrison.

I want to remind all of our witnesses to speak a little more slowly for our interpreters.

You can continue, Mr. Garrison.

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

I'm not sure what I can do with 30 seconds of questioning here.

However, I want to emphasize this idea that expanding the net and catching more people who may not be involved in exploiting is a side danger of this bill that you're bringing to our attention. We will end up causing prosecutions of people who aren't actually in relationships of exploitation.

Maybe you can comment quickly, Ms. Ka Hon Chu.

[Sandra Ka Hon Chu]

I've talked to many sex workers and third parties who are being double-charged with sex work and human trafficking offences. I think it's really problematic to suggest that the low conviction rates are because it's hard to prove human trafficking. They are because police and prosecutors are charging people and expecting people to plead to the charge of sex work. We see that consistently in so many cases, that these charges are eventually withdrawn because people will plead to a sex work offence.

I think you need to reconsider the idea that it's very hard to prove. It's actually because of police and prosecutorial practice.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Mr. Garrison.

We will go to our next round. We'll do these in four minutes.

We'll begin with Mr. Van Popta for four minutes.

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

Mr. Chair, it's actually my time.

[The Chair, Liberal, Randeep Sarai]

Oh, Mr. Brock. Okay, we'll go to you.

I was told it was going to be Mr. Van Popta, but you can go.

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

Yes, with time permitting, I may share my time with Mr. Van Popta.

I want to clarify a couple of points.

First, thank you, ladies, for your long-awaited attendance to speak on this important issue. I want to push back a bit, with the utmost respect to Ms. Chu and Ms. Lam.

I come from a legal background. I was a prosecutor for almost 18 years. In fact, in my office in Brantford, Ontario, about an hour west of Toronto, I was the designated human trafficking Crown prosecutor. Perhaps my experience differs from other prosecutors across this country. However, I can tell you that the experience Ms. Lam and Ms. Chu described, in terms of prosecutors simply looking for an easy way out and in fact exacerbating the problem with respect to prostitution, has never been my experience. Human trafficking inherently, with the tools we have in the Criminal Code and the vulnerability of the victim himself or herself, makes prosecutions very, very difficult.

When we have bills that give prosecutors some tools to assist in aiding in prosecution—in holding these offenders accountable and sentencing them accordingly—in my view, it's the appropriate thing to do, as legislators. I say that with respect, because my experience and my police service experience perhaps differ from the experiences shared by Ms. Lam and Ms. Chu.

To Holly Wood and to the professor, I have access to a document that was a submission made by the HIV Legal Network and the Butterfly association, the organizations that Ms. Lam and Ms. Chu belong to.

I want to read out a passage, and I'd like to get your observations and thoughts on it.

They state, “Canada’s human trafficking laws have a long history of effectively being anti-sex work laws. Today, prosecutors, police, and policymakers continue to primarily understand human trafficking as sex trafficking, and sex work is often seen as trafficking, regardless of circumstances.”

Starting, perhaps, with Holly Wood, what are your thoughts, please, on that passage?

[Holly Wood]

Just bouncing off our ongoing conversation here, I think that we have a lot of social, legal and political biases with regard to sex work and sex trafficking. They are often conflated. I will say that.

However, I think you made a great point in saying that when you are prosecuting the crime of human trafficking, there is a high legal threshold. You have to have victim participation. You have to meet these evidentiary burdens.

In my work with police officers, if they walk into a suspected human trafficking situation...and these are police not only from Ontario, but B.C., Manitoba, etc. This happened in my hometown about a month ago. A 14-year-old girl was suspected to be trafficked in a hotel room. The police officer walked in to investigate, and the girl said, “Oh, no. It's just my boyfriend. We're in a relationship, and we're inviting additional people over.”

Police have to leave. Again, you're talking about legal thresholds. Police look at a situation and say, “Is there fear? This girl seems to be perfectly consenting.” Regardless of the fact that she's a youth, they have to leave that situation. They have to leave piles of files on their desk because of the current high legal threshold with our current Criminal Code provisions regarding human trafficking.

I will let Professor Benedet take it from here.

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

Thank you.

Unfortunately, I don't think I have any time for Dr. Benedet to provide her observations on that.

I apologize to you, Professor, and I apologize to my colleague, Mr. Van Popta, for not giving him any time to ask a question.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

We'll now go to Ms. Diab for four minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you, Mr. Chair.

Welcome, witnesses.

Let me ask a question of Ms. Ka Hon Chu. From your experience with the Asian and migrant sex workers, the workers are obviously racialized but also from very vulnerable communities across the country.

Can you tell me about your experience? You started to talk about policing and prosecutorial practices. What recommendations would you have for what you would like to see done with respect to this bill, one last time?

[Sandra Ka Hon Chu]

Thank you.

As we noted in our joint submission, I would like to reject the bill in its entirety. In 2012 there was a subjective requirement with regard to human trafficking. That was changed to this reasonable person standard because of the notion that it was too hard to convict if you required complainants' testimony.

I can't emphasize this enough: You do not require complainants' testimony under this current version of the law. Reject Bill S-224 in its entirety. You need to support, as Elene said, non-carceral forms of safety. People do not require more policing. We put hundreds of millions of dollars into human trafficking initiatives, and we have allowed more police and prosecutors to flourish in this anti-human trafficking world, but that hasn't translated into more safety. We care about the safety of migrant workers and people who are experiencing exploitation and abuse, but you need to support them so they can obtain decent housing, access to income supports, access to child care, access to housing—all the things that, as I'm sure the other witnesses will agree, are helpful in terms of supporting people.

I also want to provide my time to Elene to share more of the experiences of Butterfly, their first-hand experiences of policing in the context of human trafficking.

[Elene Lam]

I think what Butterfly has been doing is to build community support to help community members deal with any kinds of issues they are facing, including in their workplace or in terms of exploitation or intimate partner violence. We work with the community members in terms of what they want—whether they want to leave their partner or protect themselves or learn how to negotiate, or whether they want to change their working environment. Centring the voice and agency of the workers is very important, particularly because there is some community support and people know each other and know whether the conditions are good, so we also work with different service providers. Also, as Sandra said, having a structural system that supports income and housing status is also very important for people.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Ms. Lam, what is your fear with this bill, then, with regard to the—