Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 25 - Evidence, November 23, 2005
OTTAWA, Wednesday, November 23, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-49, to amend the Criminal Code (trafficking in persons), met this day at 4:35 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: Honourable senators, today we have on our agenda Bill C-49, an act to amend the Criminal Code (trafficking in persons). The minister will join us soon. We have from the Department of Justice Canada, Ms. Carole Morency, Senior Counsel, Criminal Law Policy Section. We will hear from Ms. Morency, and if she does not mind, as soon as the minister comes, we will hear from him. I think he must go back to the House either for a vote or a parliamentary ministerial committee.
Carole Morency, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you, Madam Chair. I do not have any prepared remarks because the minister will be speaking to the bill. If it would suit the committee's purposes, I will be happy to answer any technical questions members may have on Bill C-49.
Senator Milne: I have been handed the job of stickhandling this bill through the Senate since Senator Jaffer is away this week. I have concerns about the sex offender database and the DNA samples. The definition of "trafficking" in the bill, as I understand it, can also include trafficking in persons for other than sexual reasons, such as, for example, for cheap labour.
I have concerns about putting people on the sex offender list if in fact they were trafficking for cheap labour in some sweatshop.
Ms. Morency: As you say, Bill C-49 does propose to add the main trafficking in persons offence to the sex offender registry and to the DNA databank.
Yes, trafficking in persons does not necessarily mean for the purpose of sexual exploitation. It can include for forced labour, which is why the main offence is drafted that way. Nonetheless, it is of a similar nature and concern in terms of the impact on the victim: the enslavement, the conditions under which people are forced to provide their services, the nature of the order. It is a serious offence against the person. For example, the DNA databank also is not only sexual offences. Similarly, on the sex offender registry, our experience so far with how cases have been proceeding is that the Criminal Code offences being used right now to prosecute trafficking-related offences tend to deal with sexual offences.
The idea was to take the most serious of the three offences and list those in the two processes, again, as a further tool to enable law enforcement to use them in the intended manner, to track these offenders.
Senator Milne: Have we any idea whether people convicted of trafficking in human beings for other than sexual purposes would be put on the sexual offender list? They would then be designated as a known sexual offender, when in reality they are not. They are a known trafficker, but not a sexual offender.
Ms. Morency: Certainly an argument can be made to have the name added to the list, and then the same considerations as in the general order for consideration of registration apply. The same arguments can be made for or against sex offender registration.
Senator Milne: By whom?
Ms. Morency: By the court.
Senator Milne: That is not the answer I wanted to hear, but we will ask the minister as well when he comes.
Senator Ringuette: Do you have any statistics on how many accusations of this nature have gone through the Canadian courts in the last few years?
Ms. Morency: There are two ways that charges of trafficking in persons cases can be brought in Canada. One is under the Immigration and Refugee Protection Act, which has a trafficking in persons offence. The first charge under that offence was laid in April of this year in Vancouver.
There are existing Criminal Code offences that address trafficking-related conduct, such as kidnapping and many of the offences in the sex trade dealing with procuring, et cetera. In reported case law under those provisions, from March 2004 to February 2005, we were able to identify at least 31 individuals who had been charged with these types of trafficking-related offences. Those charges resulted in 19 convictions and 12 remain before the courts.
There is currently some capacity to deal with some of the cases as they are presented, but not necessarily comprehensively. For example, some of the Criminal Code cases that have proceeded to date were more likely to involve domestic trafficking in persons.
The charge of trafficking in persons under the Immigration and Refugee Protection Act involves a cross-border form of the offence, so that has an international component.
Therefore, some cases have proceeded to date. We have had some convictions, and more cases are still before the courts. Bill C-49 would take our response to the next level by providing one comprehensive response within the Criminal Code to name the conduct with which we are dealing. Trafficking in persons is the main offence, so there is a full reflection of the exploitation of the victim and its impact, which is a different approach than under the Immigration and Refugee Protection Act, where the exploitation of the victim is considered only as an aggravating factor for sentencing purposes.
Senator Ringuette: Of the 19 convictions you mentioned, is there any relation between the charges laid and concurred in by the courts? Was there any sexual element in those cases? Is there any relation between trafficking in persons, per se, and the previous bill with regard to the sex offender act? Why are we dealing with both in this bill? There must be some history to this.
Ms. Morency: As I said, the Criminal Code cases that we have tracked so far that appeared to us to be trafficking in persons cases mostly involved sexual offences such as procurement, sexual assault and the like.
With reference to the previous question, the amendment in Bill C-49 to the sex offender registry is proposing that this be added to the discretionary rather than the mandatory part of the registry. If the offence involves the sexual exploitation of the victim, the Crown can seek to have the offender listed in the sex offender registry under the discretionary provision. If the court decides otherwise, it does not happen. It is not mandatory, and the expectation is that it would be sought in cases where there is sexual exploitation.
Senator Milne: What clause of the bill is this in?
Ms. Morency: It is in clause 6.
The Chairman: Welcome, minister. How long can you stay with us?
Hon. Irwin Cotler, P.C., M.P., Minister of Justice and Attorney General of Canada: I will stay until the bells ring for the next vote.
The Chairman: Please proceed, minister.
Mr. Cotler: You have had the bonus of having the expert, Ms. Morency. She is the best on this topic.
[Translation]
Mr. Cotler: Madam Chairman, it is a pleasure to be here today to speak to Bill C-49, An Act to amend to Criminal Code (trafficking in persons).
[English]
Shortly after my appointment as Minister of Justice and Attorney General of Canada, I identified human trafficking as one of my priorities, and it has so remained. I did so because trafficking in persons, what is often referred to as today's global slave trade, constitutes a persistent and pervasive criminal violation of the most fundamental of human rights — the right to life, liberty and security of the person.
[Translation]
As I have said during previous appearances before this committee and elsewhere, I have always believed that the true measure of a society's commitment to the principles of equality and human dignity is taken by the way it protects its most vulnerable members.
[English]
It is society's most vulnerable, usually women and children, who are the most at risk for being trafficked, and at the heart of Bill C-49 is the protection of the vulnerable. Our commitment and our message with respect to Bill C-49 are clear. We strongly denounce and criminalize human trafficking. We are committed to providing increased protection to those who are most vulnerable to this heinous crime, and we are firmly resolved to bring the perpetrators to justice.
I am delighted that the importance of this commitment is shared and understood, as reflected by the fact that Bill C-49 has, to date, received all-party support. This is not a matter of partisan politics; this is a matter of legislating for the public good. To have received the concurrence and support it has in a minority Parliament attests to the compelling nature of this measure.
To understand the significance of Bill C-49 one has to imagine the unimaginable; one has to imagine the daily reality of a trafficked person. One has to go beyond the abstraction of statistics, which are horrible enough, to realize that behind each one of those statistics is a human being with a name and an identity. Victims may be kidnapped and drugged. Women and children may be sold by their husbands or parents. Victims may be lured to Canada by false promises of legitimate employment. Upon arrival here, they discover that they have been sold into the commercial sex trade or into forced labour. They are forced to endure actual or threatened violence, including sexual assault on themselves and/or on their family members.
Imagine also that this horrible reality, the complete deprivation of liberty, of enduring physical, sexual and emotional abuse, of bartering in human comodification, is also one of the fastest growing criminal industries in the world, generating annual estimated profits of U.S. $10 billion for organized crime, next only to the illegal trade in drugs and firearms.
As many as 900,000 persons are trafficked globally each year, as estimated by the United Nations, as are 1.2 million children as estimated by UNICEF.
In May 2005 the International Labour Organization estimated that 2.5 million persons are now in forced labour as a result of being trafficked. Over 1 million of these persons, 43 per cent, have been trafficked for commercial sexual exploitation. Almost all of these, 98 per cent, are women and children.
Within Canada, RCMP estimates from 2004 suggest that each year, 600 to 800 persons are trafficked into Canada and that 1,500 to 2,200 persons are trafficked from Canada into the United States. The U.S. estimates for 2004 are that 14,500 to 17,500 persons from around the world are trafficked into the U.S. each year. In short, human trafficking is a compelling global, regional and domestic concern.
Imagine that every one of these estimates involves a human being, an individual, a person with a family, with hopes and dreams. Mostly women and children, they are trafficked for the sex trade and forced labour. They can also be men, usually trafficked for forced labour in factory sweatshops or the agricultural, construction or meat-packing industries.
Imagine, if you will, the real and immediate opportunity that we as legislators have before us with respect to Bill C-49. Our objectives with regard to this bill can be referred to as the three Ps: prevent human trafficking; protect its victims; and prosecute, or hold accountable, the human traffickers. Bill C-49 proposes to create three new indictable offences that specifically target human trafficking. The first and main trafficking offence would prohibit anyone from engaging in a specified conduct such as recruiting, transporting, harbouring or controlling the movements of another person for the purpose of exploiting or facilitating the exploitation of that person. It also clearly provides that any purported consent by the victim is never valid. The proposed maximum penalty for the main trafficking offence is life imprisonment where it involves kidnapping, aggravated assault, aggravated sexual assault or causes the death of a victim. In all other cases, the proposed maximum penalty would be 14 years imprisonment.
The second trafficking offence proposed by the bill would prohibit anyone from receiving a financial or other material benefit, knowing that it results in the trafficking of another person. This offence seeks to prevent people from profiting from human trafficking, even if they do not engage in the physical acts described in the main trafficking offence. The proposed maximum penalty is 10 years in prison.
The third offence would prohibit the withholding or destruction of documents, such as a victim's travel documents or documents that establish the victim's identity or immigration status, for the purpose of committing or facilitating the trafficking of that person. This offence would carry a maximum penalty of five years imprisonment.
Bill C-49 proposes that these new offences be centered on what is truly at the core of human trafficking — the exploitation of its victims. No matter the form, or for whatever purpose it occurs, trafficking always involves the exploitation of the victim. Bill C-49 provides a clear definition of "exploitation" for the purpose of the proposed new trafficking offences. Under this definition, persons are exploited where they are forced, whether out of fear for their own safety or that of someone known to them, such as a family member, to provide their labour or service, such as sexual services, or one of their organs or tissue.
Bill C-49 also proposes consequential amendments that would add the offence of trafficking in persons to the DNA databank and to the sex offender information registry provisions and all of the new offences to the wiretap provisions to facilitate police investigations.
[Translation]
As well, trafficking victims will be able to benefit from the new facilitating testimony reforms for children and other vulnerable victims and witnesses, enacted by Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons), and that will come into effect in January 2, 2006.
[English]
I appeared before this committee on that bill as well. Madam Chair, Bill C-49's proposed offences will significantly enhance our existing response to trafficking in persons. At present, human trafficking is addressed through existing Criminal Code offences that apply to trafficking-related conduct, such as kidnapping, forcible confinement and aggravated sexual assault.
The 2002 Immigration and Refugee Protection Act also included a specific offence that addresses human trafficking from a border integrity perspective. The first charge under this offence was recently laid by the RCMP in April 2005 and is currently before the courts. Although these existing responses have enjoyed some successes, they do not provide a comprehensive response to the full range of conduct that we understand human trafficking to encompass. As well, they do not reflect adequately the impact that human trafficking has on its victims or Canadian society. Bill C-49 will expand the scope of our existing provisions to comprehensively respond to human trafficking for whatever purpose it is engaged in, whatever its form and wherever it occurs, whether wholly within Canada or in cross-border or international dimensions. It will provide additional tools to police and prosecutors to ensure that the offence charged is the one that best responds to the facts and circumstances of each case.
Stronger Canadian laws against human trafficking will also contribute to the broader international effort to combat trafficking. In this regard, Canada actively participated in the development of, and was amongst the first nations to ratify, the UN Convention against Transnational Organized Crime and its supplemental Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. These two instruments provide the widely accepted international framework for addressing the contemporary manifestation of human trafficking.
We continue to contribute to and build upon this international anti-trafficking framework in partnership with other countries, not only through the United Nations but also through other multilateral organizations, including the Organization of American States, where I made this a central theme in discussions; the Organization for Security and Co-operation in Europe; the G8, recently; through the Cross-Border Crime Forum; and under our Security and Prosperity Partnership Agreement with the U.S. and Mexico, which specifically references this.
In particular, I raise the issue of human trafficking in every bilateral meeting that I have with my counterparts from other countries. Two weeks ago, I raised this with the Minister of Justice of Slovakia. There is a shared commitment to combat this global phenomenon.
As I mentioned, in Canada it is not a matter of partisan politics so the bill enjoys all-party support. We also have an international commitment to combating the scourge of this global slave trade. In Canada, Bill C-49 is part of a broader continuum of federal measures to address human trafficking issues that we have undertaken over the past 18 months. Although trafficking in persons may not be new, global and domestic awareness and understanding of how it manifests itself today is still relatively new and evolving. Accordingly, our efforts in recent months have sought to enhance our awareness of and responses to this problem, as well as address gaps in these responses. We are doing this within and outside government. We have supported training on the issue for police, prosecutors, and immigration, customs and consular officials. We have supported and engaged in round tables involving government and non-governmental organizations to discuss prevention and best practices for effective responses. One of the first international conferences in which I participated had to do with combating human trafficking. It was hosted in Ottawa shortly after I was appointed.
We have developed public education and information materials, including an anti-trafficking pamphlet available in 14 languages and a poster currently being translated into 17 languages. These materials have been widely disseminated throughout Canada and abroad via Canadian embassies to help prevent those who seek to come to Canada for legitimate opportunities from falling prey to traffickers. We have also launched a trafficking-in-persons website accessible through the Department of Justice's website.
Although these are important measures, we recognize that more is required to comprehensively combat human trafficking. That is why we have established a federal Interdepartmental Working Group on Trafficking in Persons, co-chaired by my department and the Department of Foreign Affairs. This working group is comprised of 17 federal departments and agencies. In addition to overseeing our responses to human trafficking to date, the working group is developing a comprehensive federal strategy to coordinate and enhance future federal responses to trafficking in persons.
Bill C-49 is an early deliverable of this forthcoming comprehensive strategy.
In conclusion, Bill C-49 proposes to significantly strengthen our existing criminal law responses to human trafficking to more clearly denounce and prevent it, and send through that denunciation a message on how we view the gravity of this global slave trade that will in turn better protect those at risk of being trafficked. It seeks to ensure that the perpetrators of this heinous crime are brought to justice.
We recognize that more is required to ensure a comprehensive response to human trafficking, but Bill C-49 is a critical step toward achieving that important objective.
[Translation]
Senator Rivest: Mr. Minister, as you indicated, every parliamentarian shares the objectives the Canadian government has set in order to fight this terrible abomination which is the trafficking of human beings. It is a complete violation of a person's dignity and everyone will appreciate the fact that Canada is playing a leadership role in this area.
But how exactly does a group of people, for instance, enter the country to work in the farming sector? Does a person just show up and request a certain number of people? Is there a follow up? Not too long ago, there was a report on the French network of the CBC which reported on how people were brought into the country on the pretext of working in one sector or another, but that it was in fact just a charade, since these people were forced to engage in sexual activities.
Things are always a little suspect. For instance, the young girl who was featured in the television program was part of a group of ten people who had come over from Romania. That seems fairly strange. Does the Department of Justice or the Department of Citizenship and Immigration deal with this type of entry?
Mr. Cotler: The Department of Citizenship and Immigration looks after those matters, as well as the Department of Public Safety and Emergency Preparedness. The two departments are responsible for conducting investigations and safeguarding the security of Canadians within the immigration process.
[English]
Ms. Morency: We do work closely, as the minister said, with our colleagues in Citizenship and Immigration and the Canada Border Services Agency. They do screen applications for visas and temporary work permits to come to Canada. It is their responsibility to enforce the policies that exist under the Immigration and Refugee Protection Act. As part of that process, they do regularly screen applications to weed out what may look like a suspect case.
[Translation]
Senator Rivest: In the television report, the person who was featured no doubt entered Canada legally to work in some kind of industry. However, along the way, her sponsors forced her to engage in sexual activities. The case concerned a group of young girls. Does the Department of Citizenship and Immigration check up on people who have obtained a temporary visa to see exactly what type of work they are doing? That young girl was completely abandoned by the system; her group was exploited for months and months.
[English]
Ms. Morency: Again, it depends on the situation. In the case you have described, if the persons who travelled to Canada on a temporary work permit or a visa are being sexually abused, the information must be communicated. If it is communicated to law enforcement, they can act.
The idea of some of the guidelines being enforced now by Citizenship and Immigration in implementing their programs — and screening through the Canada Border Services Agency — is to try to prevent people from coming to Canada and finding themselves in a situation that is not a legitimate work opportunity.
If the information comes to the attention of the authorities now, law enforcement can deal with it now.
From a prevention perspective, is it a concern? Should we look to enhance the awareness and understanding so law enforcement can better address this in advance and prevent it? That is one of the things we are trying to do through the federal interdepartmental working group.
[Translation]
Senator Rivest: The case I have just mentioned involved young women who left their country to come to Canada, but who were diverted along the way. It is extremely traumatizing for someone who was already a victim of abuse — this was a prostitution ring — to file a complaint or to take up the matter with the authorities. The young girl was wondering: "What is going to happen to me? I do not have any papers anymore, I have nothing, and I am in a foreign country. I do not speak the language." That is why I was asking whether the Department of Citizenship and Immigration can look into what has happened to a group of people two, three or six months after they have entered the country.
[English]
Senator Andreychuk: I think I saw the same show. The problem was that the young women did not have their papers. The person who brings them in often retains their passports and applications. They are walking the streets with nothing. I think that was the situation.
[Translation]
Mr. Cotler: That is the responsibility of the Department of Citizenship and Immigration. It may ultimately concern the trafficking of people. As far as the trafficking of people is concerned, that may be an offence under the Immigration and Refugee Protection Act. If this bill is adopted, it may also be an offence under it, at the end of the same process.
The Chairman: You said that an interdepartmental task force will be created. Will there be specific initiatives to help victims navigate the immigration process or concerning international corporation between Canada and other countries in the area of human trafficking?
Mr. Cotler: That committee has already been created. A representative of the Department of Citizenship and Immigration sits on the committee. The RCMP is another organization which has representation on the committee and it has implemented a system to counter human trafficking, not only nationally, but internationally as well.
[English]
Senator Milne: Minister Cotler, I have been asked to sponsor this bill through the Senate. I agreed because I feel strongly about the matter.
However, I do have a couple of concerns about clauses 5 and 6 of the bill, which indicate that if convicted people have to provide a DNA sample and can be put on the sex offender registry.
You said that 98 per cent of the victims are women and children. What about the other 2 per cent being brought in basically for forced labour? I cannot see what purpose there would be in obtaining a DNA sample from such perpetrators. It would not help the police track them down, because presumably, they are being brought in to work in the fields or whatever. I have concerns about putting that small portion of perpetrators on the sex registry.
Mr. Cotler: As you indicated in your opening remarks, trafficking in persons is a serious offence and we have made serious offences designated offences for DNA purposes. We are just being consistent with our principled approach to the use of the DNA Identification Act and its application, in this instance, to trafficking in persons.
It would be somewhat anomalous if we identified this as being the heinous crime it is and then said it should somehow be exempt from the application of the DNA Identification Act. It is a question of being consistent with designated offences under that act. That would include trafficking in persons.
Senator Milne: What about the sex offender registry?
Ms. Morency: The reference you made to 98 per cent was taken from the minister's comments concerning the International Labour Organization's estimate of 2.5 million people in a situation of forced labour because of being trafficked. Some 43 per cent of those, or just over 1 million, have been trafficked for the sex trade or commercial sexual exploitation. Of that number, 98 per cent are women and children.
Mr. Cotler: It is 98 per cent of the 43 per cent.
Ms. Morency: In terms of the sex offender registry, the amendment is to the discretionary provisions. If you look at provision 4 of the sex offender registry and subsection 490.012(2), you will see that it states that the prosecutor can make an application for sex offender information registration designation, and must prove or establish beyond a reasonable doubt that the person committed the offence with intent to commit, et cetera. Basically, it deals with one of the sexual offences.
The expectation remains, as I indicated earlier, that a prosecutor would seek the designation only in those cases where the sexual offence is an underlying part of the exploitation of the victim.
Senator Milne: That is the answer I needed. If I will have to answer questions on this, I would like to know what I am talking about.
Senator Ringuette: Mr. Minister, you stated in your opening remarks that our police forces indicate that between 600 and 800 persons are trafficked into Canada yearly. We heard in previous testimony that between March 2004 and February 2005, 30 such cases were prosecuted. Mr. Cotler, that is only 5 per cent of the cases under the current legislation.
It is always nice to have stricter legislation. You mentioned a forthcoming comprehensive strategy. Currently, the police can only bring 5 per cent to the courts.
What will this bill give to police authorities? I include immigration authorities and customs officers because they all have particular access to ports, which is the door to this type of crime.
It is all well and good to add more opportunity to bring to justice those who commit these crimes, but are we supplying the manpower to ensure that more than 5 per cent are being prosecuted in Canada?
Mr. Cotler: In the matter of the prosecutions, as I indicated, in April 2005 the first charges were laid under the specific offence of trafficking of persons under the Immigration and Refugee Protection Act.
Additionally, if you look at a review of the Criminal Code cases from March 2004 to February 2005 — because there are other provisions in the Criminal Code that allow for the prosecution of trafficking-related offences — you will see that at least 31 individuals were charged with trafficking-related offences, which resulted in 19 convictions. There remain 12 cases before the courts.
Bill C-49 will provide a more comprehensive and substantive approach from the point of view of the criminalization of the conduct through a new set of offences, the three offences to which I referred.
There will also be parallel training with regard to RCMP, police, customs officers and the like. The RCMP is engaged in its own specific not just training at this point, but in leading an international effort through the code that they have put out to address questions of trafficking in persons. It is entitled, Human Trafficking: Reference Guide for Canadian Law Enforcement. This is not just a domestic matter; it is something that can be made use of internationally.
In terms of the Cross-Border Forum and the United States, we have 15 integrated border enforcement teams. We have cooperation on prosecution at the border. I described earlier the posters and pamphlets, in 17 and 14 languages respectively, the purpose of which is to create a culture of prevention and get at the trafficking source before it begins to emanate from that country.
I expect there are more cases that have yet to be reported. I think we are beginning to see an increase in the number of cases that are being investigated, prosecuted and reported. Bill C-49 will add to that framework, both from a substantive criminal law point of view and from a parallel law enforcement point of view.
Senator Ringuette: With regard to enforcement and an earlier question from Senator Rivest, is there a sharing of information on potential cases among immigration, the RCMP and other policing agencies? Is there a sharing of information to facilitate the identification of cases such as the one Senator Rivest mentioned to us?
Mr. Cotler: Information is shared through the RCMP human trafficking unit. The RCMP work with Citizen and Immigration Canada. Information sharing takes place through interdepartmental working groups that include Immigration, Public Safety, RCMP, Justice, and so on. There is a more coordinated approach with respect to law enforcement purposes and information sharing. On the international level, information is shared with INTERPOL.
Senator Andreychuk: Mr. Cotler, I am not opposed to this bill, and I made that clear in my speech. My concern is that when we pass bills and talk about how good they are the public is somehow reassured and lulled into thinking we have the answers to these tough questions. Anyone who has worked in this field, whether they are police officers or women's groups or NGOs, both in Canada and overseas, will tell you that the problems is not the law but the administration of the law. Second, the law is a very small part of how we need to attack human trafficking. It is a social development and economic problem. It is many things before it becomes a legal problem.
As you said, this bill will help to signal our approach to this problem; however, I find it strange that we are putting trafficking within and outside Canada in the bill, while at the same time, the House of Commons has indicated that perhaps legalizing prostitution may be the way to go. There is a conflicted approach, and I would like to know where the government stands on that conflict. We are signalling that we abhor trafficking in persons, yet we are considering the legalization of prostitution.
Are we moving to accept some forms of prostitution, while at the same time putting in these layers of law to deter it? We seem to be working at cross-purposes. What is the government's position on prostitution?
Mr. Cotler: I do not want to send out a false signal that this proposed legislation is an entire panacea for this problem. You are correct that law is an important component, but it is only one component. We see this particular bill as organized around the three Ps of prevention of trafficking, protection of the victim, and prosecution of the perpetrator.
Clearly, one needs a comprehensive approach. That is why we set up the 17-member interdepartmental and agency working group. That was done shortly after I became Minister of Justice and identified this as a priority. In my first speeches in March 2004, I voiced the same sentiment as you do today: We must have a holistic approach to combating this problem.
Specifically on the matter of prostitution, prostitution per se is not illegal. It is prostitution-related offences that are criminal.
Senator Andreychuk: I stand corrected.
Mr. Cotler: We are awaiting a report from a parliamentary committee, the Standing Committee of Justice and Human Rights, to whom I referred the question of how we address the entire matter of prostitution-related offences, which have federal, provincial and municipal dimensions. That issue is unlike the matter of trafficking. The point about trafficking is that there could never be valid consent. You can never consent to trafficking. However, you have consensual features in prostitution-related activity. In that sense, we are talking about two distinguishable genres of offences. You may see a degree of overlap, but for the most part, we are talking about non-consensual and forcible offences in the case of trafficking, and consensual offences with regard to prostitution. There too, you have prohibitions with respect to persons under the age of 18, lack of consent, and exploitation.
Senator Andreychuk: There is also an inherent problem in separating smuggling and trafficking. Many people are smuggled but find themselves within the trafficking trade. We have to look at separating those.
The Auditor General has indicated that the police forces, particularly the RCMP, are understaffed in many communities for the work they have already have, and they lack training. The training packages such as that in youth justice look like big dollars but they do not amount to as much as is necessary on the ground. Therefore, we do not have the capacity to deal with it. That is important to me because the victims of trafficking are twice victimized. The minute the court process or police process begins, most of the victims who have had to testify have done it unwillingly, either for fear of those in whose clutches they were or because they have been brainwashed into believing what they were told. The witness protection portion of this bill troubles me because it is not sufficient to really get at the problem of trying to assist those who have been trafficked. The entire bill leads to their victimization again by putting them through a criminal process. I think that is why we are down to the 5 per cent number. Not many people are willing to come forward because of fear and concern that they will be sent back to their countries. It is a human social problem that cannot be addressed by a witness protection program in the way that we traditionally set those out.
How will we reinforce that on the ground?
Mr. Cotler: Let me take your questions and comments one by one. I might deal with the questions of smuggling and trafficking for a moment because they are used interchangeably and I think it is important to identify the difference.
Media reports often use the notions of smuggling and trafficking as if they amount to the same thing. Before you know it — since we are all respondents to the media — it enters into the public discourse and we treat them as being the same. However, they are not the same. Smuggling involves the illegal movement across international borders of people who are then free, on arrival, to go wherever they wish. In contrast, although trafficking can also occur across as well as within borders, victims are not free upon arrival to go to their destination of choice. That is where the coercive and exploitative aspects come in.
Smuggling victims can, however, become trafficking victims. That is where you get the overlap. Smuggled victims may be exploited on arrival, for example, if they cannot pay the entire smuggling free. Instead of being able to go freely, they move from being smuggled migrants to victims of trafficking.
This brings me to the second point, in reference to victim testimony. I mentioned it in my remarks. I also came before this committee to testify on Bill C-2, protection of children and other vulnerable persons, which deals with the entire question of protection of children against predatory practices of pornography and the like. Those provisions came into effect on November 1. Other provisions are about to come into effect on January 2, 2006 that deal with the question of facilitating the testimony of victims and witnesses.
That part of Bill C-2 will assist trafficked persons, in this instance, either in victim testimony or witness testimony. I think this will provide an important resource, because in effect, Bill C-49 is not just a matter of prosecutorial approach. It is also a victim protection approach. One of the protections being offered to the victims is to facilitate their testimony and provide them with protection for that testimony. That will come with the application of the provisions of Bill C-2 to Bill C-49.
Senator Eyton: Bill C-49 is very broad in its definition, but it seems to be focused on the offenders or perpetrators. There are provisions to protection the victims, but it seems to have a different emphasis than the parallel U.S. legislation, which by its title — Trafficking Victims Protection Act — seems to have a different emphasis. Can you comment on that?
Mr. Cotler: The U.S. legislation's orientation — in the processes and even in the language — is anchored in the approach of still seeing it in terms of slavery. We have approached it in terms of a criminal offence with regard to trafficking in persons.
Theirs also, by the title, "victims of trafficking," seems to speak in terms of the victim. However, in our legislation, you have to cross-reference Bill C-49 with the protective framework set forth in the Immigration and Refugee Protection Act. In the U.S., you will find what I would call the victim protection provisions in the victims of trafficking legislation itself.
In the end, it comes down to much the same thing; we have parallel initiatives and objectives. I have had discussions with former Attorney General John Ashcroft and the present Attorney General, Mr. Gonzales, on this, and we looked at their legislation when drafting ours. The three objectives of prevention, protection and prosecution are the same. However, if you look at our proposed legislation in a stand-alone sense with regard to the creation of the three new offences and their important dimension of exploitation, you have to read in the protective framework of the Immigration and Refugee Protection Act.
Senator Mitchell: As I read this, someone who carries out the technical features of the crime — kidnaps or assaults — is subject to life imprisonment. On the other hand, those who receive a financial benefit would be subject to only 10 years imprisonment. It seems to me you can make the argument that the people who just receive the financial benefit and are not involved in the actual act might well be the ring leaders and should be every bit as culpable, if not more so, than the ones who do the kidnapping.
Does that make sense? If so, why do we not subject those people to life imprisonment as well?
Mr. Cotler: The distinction I tried to draw in my original remarks is that those who engage in the primary offence will be subjected to life imprisonment. Those who are not themselves engaged in it are not so much the ring leaders — because you would be able to catch the ring leaders — they are more of a secondary support system. The punishment with regard to their offence, whether it is the destruction of documents or the receipt of benefits, would be less because they are not directly engaged in the primary exploitation. They can be charged as parties to the offence.
Senator Mitchell: Once the prosecution proceeds, their involvement with the victims is over. Are those persons automatically sent back? Is that under the refugee act you were referring to? We do not send them back to the very families that sold them in the first place, do we?
Mr. Cotler: This gets back to what Senator Andreychuk was referring to. We do not want double victimization. People are not only victims of trafficking, but they are then sent back.
If you look into the protective regime, you can find measures in the Immigration and Refugee Protection Act that provide a framework by which trafficking victims may seek to stay in Canada, temporarily or permanently. I will briefly mention these measures. The first is the person in need of protection category, in which they can assist persons where returning to their country of origin would subject them to personal danger of torture, risk to life or of cruel or unusual treatment or punishment. There is that category.
The second one is a temporary residence permit, which is a discretionary permit that may be issued to allow foreign nationals to stay in Canada for a specific period when there are compelling reasons that outweigh any associated risk. Again, the application is with regard to a victim of trafficking.
The final one is humanitarian and compassionate grounds, which may be available for individuals who do not meet the statutory requirements or are otherwise inadmissible. These three are under the IRPA legislation, but you can incorporate them by reference and apply them to the protection of victims of trafficking so they can become protected persons, receive a temporary residence permit or remain under humanitarian and compassionate grounds.
We are working with Citizenship and Immigration on how we can best enhance the protective framework. The worst thing is if a victim of trafficking is doubly victimized by being sent back and put into another situation of risk of torture, ill treatment and the like.
Senator Joyal: Mr. Cotler, what has your department done to answer the needs of all those women lured to Canada through the exotic dancer programs who have found themselves caught up in the sex trade business in Canada against their will?
Mr. Cotler: That is an issue for Citizenship and Immigration Canada and Human Resources and Skills Development Canada. However, I do not want to leave it at that. We all have a certain responsibility.
Those two departments jointly administer the entry of all temporary foreign workers into Canada under the IRPA. As I understand it, the Government of Canada has never had a "program" to facilitate the entry of exotic dancers into Canada. In December 2004 there was a national labour market opinion in respect of exotic dancers. That was rescinded and replaced with what I understand is a stricter case-by-case approach and a series of additional safeguards and assessment criteria.
Canada does not recruit exotic dancers from abroad as a matter of policy. It does not have a program to that effect, and the opinion in terms of labour markets and the like was rescinded in December 2004 and replaced with a stricter case-by-case approach.
At this time, all of government, including CIC and HRSD, is reviewing federal legislation, policies and programs to ensure that there will be a consistent and comprehensive approach to trafficking in persons such that we do not create a system in which people can "fall through the cracks."
There is no program for exotic dancers, but there is a case-by-case immigration assessment in that respect. With regard to trafficking, Human Resources and Skills Development will work in conjunction with the Department of Justice Canada.
The Chairman: Thank you, minister. We will see you tomorrow morning.
Mr. Cotler: Yes, I will appear on Bill C-53, to amend the Criminal Code in respect of proceeds of crime. I mentioned in caucus and elsewhere that the Senate is doing a commendable job. It may not be realized by the media, and therefore not appreciated by the public, that if these two bills pass, it will be because the Senate was willing to sit extra hours to consider the proposed legislation, as it did for the same-sex bill.
The Chairman: We remember that.
Mr. Cotler: Some people will not let me forget it. I also remember that it was a hot July evening when we sat for four hours. That was a great tribute to the Senate and I believe that I stated so at the time.
The Chairman: Madame Morency, would you answer questions from Senator Joyal?
Senator Joyal: With all respect, I do not think the minister answered my question.
Close to 2,000 women were lured to Canada under that program. In 2003, 661 came from an East European country. Since the so-called exotic dancer program has existed, more than 1,000 women have been attracted to Canada, most often under the false pretence that they would be working in the hotel or tourism industry. Once they arrived, they would have had to perform. Police reports state that most of them end up being forced to work in the sex trade and fall under the control of organized crime. That information was from the Ottawa Citizen, February 6.
My preoccupation is that those women were attracted to Canada, so we cannot simply abolish the program and ostensibly wash our hands of them. I understand that the program has been abolished, but most of those women are still here and we do not know what has happened to them. We do not know what protection we can afford them through a government responsibility. It is not enough to simply abolish the program because government created this problem. I do not want to make any demagogic parallel, but the Prime Minister has announced compensation for the residents of residential schools. The program was created with all good intentions but it caused a problem. What will government do to address the problems that it created? Likely at one time the program promised answers to market needs, but I have my opinion on that.
A government program has created a human problem and has submitted those women to trafficking. It cannot ignore those women. As Senator Rivest mentioned, most of those women had their passports confiscated, and they live in poor conditions. I would like to refer you to the Law Commission Report, 2004, entitled Is Work Working? Work Laws that Do a Better Job. Certainly you are well aware of it because it was contracted through Justice.
All of the studies that I have read thus far show how vulnerable those workers are. One study was: Migrant Sex Workers from Eastern Europe and the Former Soviet Union: The Canadian Case, by three women from the University of Toronto and paid for by the Government of Canada. There are more.
There is a problem that government must address.
Ms. Morency: I will do my best to assist the committee. As an official from the Department of Justice, I am not in the same position as an official from Citizenship and Immigration, although we are working closely with them.
First, it was never a program per se. Under the Immigration and Refugee Protection Act, anyone from outside the country can seek a temporary permit to work in Canada. As I understand it, the process that follows in that situation is that HRSDC would have a labour market opinion to determine whether businesses bringing in temporary workers from another country would have an adverse impact on the workforce in Canada.
Exotic dancing is not illegal in Canada. If somebody were to apply for a temporary work permit to come to Canada to work as an exotic dancer, it would have been processed prior to December 2004. The positive labour mark opinion would have said that there was a shortage of workers in this industry in Canada. If a temporary foreign work permit were granted, it would not have an adverse impact on the workforce in Canada. Persons could gain legal entry to Canada for employment in what they believed to be a legitimate work opportunity. Some may have been duped and lured to Canada for a different reason. Perhaps they were told that they would work in a store or as a nanny, but then found themselves in a different situation.
There were concerns about the implications for exotic dancers when the positive labour market opinion was rescinded in December 2004.
Anyone who seeks a temporary worker's permit to come to Canada for a legitimate opportunity will have to be processed. That includes exotic dancers.
In that case, Citizenship and Immigration officials will review every permit application on a case-by-case basis. They are trained to look for and screen out people who may be potential victims of trafficking. They look at the contract being offered to the person seeking the temporary work permit to ensure that it is legitimate. They look to see that arrangements are made for the worker to return at the end of the permit period, and they look at health and security criteria.
As you said, there has been media coverage of the issue in recent months looking at a number of permits. Again, we have received information from colleagues at Citizenship and Immigration — and I believe this information is available through their public reports — that in 2004 they issued approximately 400 work permits for exotic dancers. This includes 350 work permit extensions for dancers already in Canada and 50 new permits for overseas first-time applicants. Apparently, eight were issued to Romanian citizens, with a 90-per-cent refusal rate.
The refusal rates suggest that the screening process is trying to assess the situation on a case-by-case basis.
If persons come to Canada through legal means, it is because they are lured for legitimate opportunities. In fact, they find themselves in anything but. They find themselves in a trafficking situation, which is exactly what Bill C-49 addresses. The third offence deals directly with the person who withholds or destroys documents to prevent the victim from fleeing that situation.
If a person a trafficking victim, it must be brought to the attention of authorities, by NGOs or otherwise. They can then intervene, rescue the victim and provide support at that point.
One of the things we are trying to do in working with our colleagues at CIC is to prevent trafficking from happening in the first place. That is the broader review, i.e., are the programs being implemented and screened appropriately? Although it is described as a program, the exotic dancer issue was not a program. It was a positive labour market opinion and does not apply now.
Can we do more? Absolutely we can. We need to look at the broader range of programs and policies in place across the entire federal government. We are engaged in that process now. We are working with our provincial counterparts on the criminal law side. We are working with them through victim services to facilitate support to victims when they are identified to ensure they are treated and recognized as victims.
Federally, we are working with our colleagues at CIC and Canada Border Services Agency to ensure that when victims are identified — perhaps at a port of entry — that we recognize their situation and try to support them.
We are working within our existing framework. C-49 provides us with additional tools. Stronger laws can prevent the offence. It can have that deterrent effect, and there is a commitment to do more on a broader scale.
Senator Joyal: Let me go at this from another angle.
Is your department funding NGOs that are concerned with the living conditions of migrant workers, people who come to Canada on a temporary basis? For instance, when they come for the crop season or on a temporary permit to answer a need for a particular period, does your department fund NGOs that would be in charge of getting in touch with those people?
I am thinking along the lines of the report that Senator Rivest mentioned. We have seen migrant workers coming from Mexico to work on farms during the summer. The person responsible for them, the farmer, more or less keeps those people prisoners on the farm. These people have to go to a specific store to buy goods in order to live and they are restricted in their movements. They cannot talk to any of the locals. They cannot leave the farm.
There have been descriptions of their living conditions. For instance, if they are injured while working, the aid given is limited unless they are dying, and of course, then they rush them out in order to avoid any investigation.
There are problems in this system. When Bill C-49 talks in clause 3 about exploiting them or facilitating their exploitation, there is a fine line between the responsibility of the farmer in the eyes of the immigration department to ensure the workers are sent home when the permit has lapsed and whether they have proper living conditions on a daily basis.
There is a need now for these migrant workers. Canada will need these migrant workers in years to come more than ever.
Senator Milne: In Ontario, those places are inspected and the farmers have to sign something.
Senator Joyal: They sign, but the way I have seen the report being handled — I could bring it if we have another session, but I doubt that — there is no support for those people outside the limited constraints of the environment in which they work. If there is a situation of abuse, they are prevented from addressing that. This is why I think there is a need to support NGO groups that are more sensitive to the plight of those people.
They are vulnerable and we know that. They are here on a temporary basis and they work hard to try to send money home. They do work that most Canadians do not want to do. It seems that the elements are not there to maintain a humane living environment for those people.
Ms. Morency: With respect to the question of whether I am aware of direct funding from the Department of Justice to NGOs that may be serving these communities, we are not funding them in the sense that you have described, to provide service to people who may be in situations of trafficking or otherwise. What we are doing under our existing resources is working with NGOs that are concerned with some of these groups that may be more vulnerable to trafficking in trying to share best practices and understand some of the approaches that they have taken.
The minister has talked about posting round tables on that. He has done that here in Ottawa, and in Vancouver with NGOs that have formed an anti-trafficking coalition to address some of those issues.
We hope in the future, with the proposed federal strategy, to be more engaged and to directly assist those groups in terms of the services they provide to the groups most vulnerable to trafficking.
We are now in the process of funding research to try to identify the needs of victims of human trafficking so we create a map of how to target resources in the future to meet those needs.
This weekend there will be another awareness-raising activity with NGOs working in the community. A lot of what we have tried to do at this point is raise awareness about this issue. Some people who may be trafficking victims may not be aware that it is illegal and there is access to help and support.
We continue to work with our federal partners. Citizenship and Immigration does work with NGOs that in turn work directly with people coming into the country. It may be on the migrant worker situation.
Some things are happening now, but more needs to be done. In partnership with the National Crime Prevention Centre, they have been active in trying to engage NGOs at the local level through discussion, raising awareness of some of the better practices and giving support to those working with these groups. How can we, as the federal government, support that as well?
You are correct. It is an important issue. We need to have a better sense of that and a stronger response to it.
Senator Joyal: I have two interpretive questions on clause 3. The clause mentions "influence over the movements of a person." When you use the word "movements," are you interpreting it as movement across borders or movement within Canada?
Ms. Morency: The phrase is "exercises control, direction or influence over the movements of a person." If we look at some of the reported cases referenced earlier under the existing Criminal Code offences, somebody can be a trafficking victim but not necessarily be completely denied any kind of access to outside of the room or building they are in. Their movements are entirely directed or controlled by the trafficker or the facilitator.
The intent of the wording in clause 3 is to provide for an offence that applies to the range of conduct that may be related to facilitating the trafficking.
In some cases, it would be keeping somebody locked up in a room. In other cases, it is controlling the movements of that person. Persons may be allowed out of the room or out of the building, but they do not feel they are free to go. They have lost their documents. It may be a passport or other identification.
The language exists already in section 212(1)(h) of the Criminal Code. It is the procuring provision that makes it an offence for everyone who, "for the purposes of gain, exercises control, direction or influence over the movements of..."
Our expectation is that in the interpretation of the new proposed offence, this language would be consistent with the language now in (h). It is intended to address the range of conduct that I described.
Senator Joyal: Finally, the word "exploitation," in the same clause, is used twice — "for the purpose of exploiting them or facilitating their exploitation."
How would you define "exploitation" in the criminal context?
Ms. Morency: The definition is provided at proposed new section 279.04. In the first case, in paragraph (a), people are exploited where they are forced or caused to provide or offer to provide a service or labour in a situation where they fear for their safety or that of someone else.
Basically, they fear for their life or physical harm to themselves, or, in the trafficking situation, threats against family members back home. It is not uncommon.
In the second paragraph, (b), persons are exploited where, through the use of force or other means, an organ or tissue is removed. This is consistent with the international standard set through the UN Convention against Transnational Organized Crime and its trafficking protocol to try to ensure that if a person is exploited for whatever purpose, whether for sexual purposes, forced labour or to have human tissue or an organ removed, the offence applies.
Senator Milne: As in Senator Mitchell's question to the minister about the penalties for someone who is the end user of the services of these people, are they not more responsible than the person who abducts the victim?
It seems to me that under those circumstances, those people might be liable under anti-gang legislation on criminal organizations and would be liable to life imprisonment there.
Ms. Morency: You are quite right. In any given trafficking case, there are many ways the police or prosecutor can approach it. Given that we understand that organized crime is much involved in trafficking, you can very well find some of those charges. You can easily frame a charge as a party to the offence as well.
Bill C-49 is creating the mechanism to ensure that people who play different roles can still be caught and held accountable, even if they are not the person doing the physical recruiting.
The sentences proposed by Bill C-49 are very much comparable to those of other countries.
The Chairman: Thank you, Ms. Morency. Is it agreed that the committee move to clause-by-clause consideration of Bill C-49?
Hon. Senators: Agreed.
Senator Andreychuk: Let the record show that this in no way sets a precedent for this committee.
The Chairman: I fully agree with all of you because it is not what we usually do. We have a long list of people we wanted to hear from, but cannot due to the circumstances.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 7 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 8 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 9 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Agreed. Is it agreed that I report this bill without amendment to the Senate?
Hon. Senators: Agreed.
The Chairman: Agreed. Bill C-49 is adopted. Tomorrow morning at 10:45 we will deal with Bill C-53.
The committee adjourned.