Justice Committee on June 19th, 2023

[Casandra Diamond]

Pornography is used in a variety of ways to groom a victim to find certain sexual practices acceptable. When you're viewing it on TV, traffickers are really just kind of grooming you to find it acceptable. It's the same reason they provide drugs during pornography; it's to reduce inhibitions.

We also know that pornography and the Internet are used in every transaction where trafficking takes place. For example, I work with 12- to 17-year-olds. Any image taken of that child is automatically a child sexual abuse image. Therefore, once it's distributed, it becomes another crime.

We recognize that the role of pornography really does impact trafficked persons, especially when it comes to their consumption and commercialization or sale. Pornography proliferates images of women being depicted as weaker members who are only good for their hypersexualization..

Those are a few things about the role that pornography plays with trafficked persons.

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

I'm out of time.

Thank you again for all being here. Thank you, Ms. Diamond, for that.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

Next, we'll go to Ms. Dhillon for six minutes.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Mr. Chair, and thank you to all of our witnesses for being here today to testify about this very difficult issue.

I'd like to start with you, Ms. Diamond.

In your opinion, do all provinces use the same definition of exploitation? Do you see a difference between the Ontario and Quebec interpretations?

[Casandra Diamond]

Let me say that I don't find equal downforce of the law across Canada, which is problematic. It's also problematic that it takes us out of the place of being a global neighbour. On top of the unequal downforce of the law in Canada, we also then are not contributing international members to the global problem of human trafficking.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Okay. Would any of our other witnesses like to add anything to that?

Ms. Gee or Ms. Way?

[Dawne Way]

I can indicate that at least some Ontario courts.... Specifically, there's a Superior Court of Ontario case by the name of D'Souza that commented that our current definition—our current working model—is actually advantageous over the international model. I think the legal framework that we have now actually works.

I represent complainants. I want the situation to be easier for them. I am unhappy when my clients are ground through the system, but we have to tread very carefully in terms of any amendments and take a very close look at the way the legislation and the case law hang together now.

I don't know if the committee is planning to hear from the Ontario human trafficking prosecution team or the Nova Scotia human trafficking team. I would think that those specialized prosecutors may well have an analysis of this law that would be very informative to the committee.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Ms. Way.

If I could follow up with you, we also know that the Criminal Code broadly interprets the human trafficking provisions to hold to account those who are trafficking and those who have also engaged in psychological forms of coercion.

Maybe this is for all the witnesses, but we'll start with Ms. Way.

Can you please give us any ideas for how could we ensure that prosecutors keep the tools that are currently in place if Bill S-224 was to pass?

[Dawne Way]

As I indicated, my concern is that these amendments would create, frankly, chaos within the prosecution sector in terms of how they'd be able to deal with the cases that are in the system now and the effect of any constitutional challenges.

I think it would be very problematic to try to have the amendments and then graft on top of them the law that we're already dealing with because it may well conflict. I think that would be a problematic way to proceed.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Ms. Diamond, would you like to add anything to that?

[Casandra Diamond]

I don't think, at this time, I would.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you so much.

Maybe one of you can answer this question: Why do you think human trafficking and the victimization of women, especially those of indigenous origin, is under-reported?

[Dawne Way]

All sexual-related offences are under-reported. I think it just falls under that umbrella. Of course, people who are marginalized are less likely to feel confident to approach the police for help and are sometimes more likely to shirk away from the police.

My clients are complainants in a criminal matter and also are in conflict with the law themselves. That can make it very difficult for victims of human trafficking to engage with the police and report. I do think it also falls under that greater umbrella of under-reporting those sexual assaults.

[Casandra Diamond]

We have found that when complaints come in to police, they often will come in as domestics, not as human trafficking. It looks like a couple is fighting. Again, I was trafficked for a decade. I thought he was my boyfriend. Persons are also in this situation, so these often are reported as domestics. Of course, then the trafficker does their job and coerces that victim once again, manipulates the victim once again.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you so much.

I think I'm out of time.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dhillon.

We'll next go to Mr. Fortin for six minutes.

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

Thank you, Mr. Chair.

I thank all the witnesses—Ms. Diamond, Ms. Way and Ms. Gee—for being with us today.

Ms. Way, in your presentation, you talked about problems with the presumption of innocence. I'd like you to tell us more about it. If these Criminal Code amendments pass, what problems do you foresee when it comes to the presumption of innocence?

[Dawne Way]

I reviewed the third reading of this bill, and what jumped out at me was this sentence: “This will put the onus on the perpetrator rather than the survivors.”

There should not be an onus on the survivors, but there is an onus on the Crown. I'm very concerned that a constitutional challenge to this bill on this record would lead to a finding by the court that this amendment is unconstitutional. That would wreak havoc for all human trafficking prosecutions that are presently in the system. It might even affect ones that have been dealt with that are under appeal. That's my concern, sir. We have to tread very carefully.

The Supreme Court of Canada, in cases like Mills, has said that trial fairness is seen through the eyes of the defendant in terms of their right to full answer and defence—we would all be in agreement with that—and also that courts should consider the interests of the complainant and the interests of society as a whole.

If we go back to my earlier comments, there are other things that could be done to assist human trafficking victims that would not give rise to a concern that this is unconstitutional because the onus has been shifted.

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

Thank you, Ms. Way.

Once again, I'd like to come back to something and ask which passage it is. In the current version of the Criminal Code's subsection 279.04(1), one must prove the abuser engaged in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety would be threatened.

In your opinion, is this what transfers the burden of proof to the abuser? We agree that it lightens the Crown's burden of proof, since the Crown prosecutor does not have to prove the victim could reasonably expect that their safety or the safety of a person known to them would be threatened if they failed to comply. The Crown prosecutor avoids this burden of proof, but how does it increase the burden of proof for the accused?

[Dawne Way]

I'm a little bit challenged by your question, sir.

What I understand from some of the committee's other meetings is that there was a suggestion that this amendment would mean that the complainant would not have to provide evidence in court on this issue.

There is nothing in the law that says that the complainant must give evidence. Of course, the Crown can rely on the best evidence it has. In this type of case the complainant almost always has come forward to give evidence. It's even been the case where human trafficking complainants don't want the prosecution to proceed. As we've heard through all these meetings, very often the victims of the crime actually identify with their abusers. If the goal is to protect complainants, to remove that onus from the Crown, I don't think that's a legally sound way to proceed in this matter.

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

Thank you.

Bill S‑224, which I assume you read, replaces subsection 279.04(1) of the Criminal Code. The proposed new subparagraph 279.04(1)(b) introduces the notion of “any other similar act”. Do you think it's too vague, or is it a good addition? I'd like you to give me a quick answer; there's only 30 seconds left.

[Dawne Way]

Thank you.

I would ask that the committee look at the Sinclair case from the Ontario Court of Appeal, which gives an exhaustive list of circumstances that the court can look to in assessing whether the objective person would have found fear—not the subjective experience of the complainant.

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

As a lawyer, do you think the notion of “any other similar act” included in this bill is too vague, or does it comply with the rules?

[The Chair, Liberal, Randeep Sarai]

Be very quick.

[Dawne Way]

I'm sorry, sir, but I don't have a quick answer to that. My apologies.