Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 8 - Evidence - June 2, 2010
OTTAWA, Wednesday, June 2, 2010
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years), met this day at 4:16 p.m. to give consideration to the bill.
Senator Art Eggleton (Chair) in the chair.
[English]
The Chair: I call to order this meeting.
Today we continue with our subject matter Bill C-268, an act to amend the Criminal Code, minimum sentence for offences involving trafficking of persons under the age of 18.
We have two panels today and we will spend less time with the second panel that consists of two people from one organization. We will spend 15 or 20 minutes with that panel, so we can get into clause-by-clause consideration at the end of our time.
On the first panel we have two participants. Director John Winterdyk is with the Centre for Criminology and Justice Research. He is the former chair of the Department of Justice Studies at Mount Royal University in Calgary. He received an honours BA in psychology from Wilfrid Laurier University and has a PhD in criminology from the School of Criminology at Simon Fraser.
His prime areas of interest include young offenders, criminological theory, research methodology, bio-social explanations of crime and comparative criminology criminal justice. He has published extensively in the areas of criminological theory, youth at risk, corrections and criminal justice related issues.
By video conference from Vancouver, we have Benjamin Perrin, assistant professor, Faculty of Law at the University of British Columbia. Professor Perrin is a faculty fellow at the Liu Institute for Global Issues. His teaching and research interests include domestic and international criminal law, international humanitarian law and human trafficking.
Professor Perrin is the founder of The Future Group, a non-governmental organization that combats human trafficking that works with victims overseas, assists with the extraterritorial prosecution of offenders and conducts public policy research on the issue.
Welcome to both of you. I will start by going to the video and ask that each of you give us about seven minutes of introductory remarks, after which we will engage in a dialogue with the committee.
Benjamin Perrin, Assistant Professor, Faculty of Law, University of British Columbia, as an individual: Thank you very much and thank you for allowing me to join you today by video conference.
This bill is an historic bill for several reasons: First, the mere fact that it a private member's bill and has made it all the way to your committee, as you well know, is testament to the significance of this issue. The genesis of this particular piece of legislation grew out of discussions that I had with the bill's sponsor in the house, member of Parliament Joy Smith. It began with a research study we have recently completed here at UBC, a three-year study looking at a comprehensive analysis of human trafficking in Canada. During the course of the study, I interviewed front line police officers, social workers, and in some instances met with victims and survivors. Many thousands of pages of information were released under access to information laws.
We will release our study in October. Many of the cases I will talk to you about today have never reached public light. The bottom line is that human trafficking is happening in Canada. It is a systematic criminal enterprise in human rights violation, and it happens in every major region of the country.
Contrary to some myths and stereotypes, human trafficking does not simply involve foreign nationals being brought to Canada and exploited by organized crime. Human trafficking includes that, but it also includes men, women and children from abroad being brought to Canada to be commercially sexually exploited in various forced-labour outlets.
The alarming part of this picture that emerged in the last several years, which spurred the need for this bill, is the explosion of our awareness of domestic sex trafficking in minors. We are talking about Canadian victims. Underage teenage girls typically are recruited in a systematic and ruthless fashion by loosely-affiliated criminal networks, street gangs and individual criminals.
I will give four brief examples to talk about the issue and to show the committee the full scope of what our police forces are facing and why police agencies call for this bill.
A case in British Columbia involved a 14-year-old girl lured and recruited over Facebook. She was brought to Victoria. Someone she thought was her ``boyfriend'' used physical force and threats to force her to be sold for sex on the street.
Many of you are familiar with the Imani Nakpangi case. This case resulted in the first conviction for human trafficking. It involved two underage girls being sold on Craigslist. Nakpangi used serious physical force, threats against the victim and the victims loved ones, and many other methods to control the victims.
Tattoos and branding have been used by traffickers. Nakpangi indelibly inked his name on the neck of one of his victims. The girl was recruited at the age of 15 as a homeless youth and was under Nakpangi's control for two and a half years. He made $360,000 by selling this young woman, who we call Eve to conceal her identity. She lost those years of her life. Her victim impact statement spoke of nightmares and she lives a horrible life while trying to recover. Fortunately, good police officers were able to investigate this crime and had her trafficker convicted.
Unfortunately, when you do the math on how long Mr. Nakpangi will spend serving his sentence for that count of human trafficking, it will be less than the time he spent exploiting the victim. It is a crude measure by any stretch of the imagination, but one that demonstrates the initial sentence for child trafficking in Canada falls far short of what many expected and, more importantly, falls short of international standards.
Another case exposes the false distinction often made in debates between sex trafficking and forced labour. In many instances, these forms of exploitation are merged. In our research, we came across a case involving a 16-year-old girl from Saint Vincent and the Grenadines. She was brought to Canada to work as a babysitter and ended up being essentially in domestic servitude — forced to work long hours, her papers taken, physically and sexually abused during the night. If you were to break down this case, you would say she was a labour-trafficking victim by day and a sex- trafficking victim by night. Her exploiters were never held accountable.
There are victims as young as an 11 year old who was identified entering Canada by someone posing as her parent. An investigation revealed she was destined for exploitation.
A final case happened literally blocks from where you are sitting in Ottawa. Laura Emerson trolled through women's shelters seeking underage women who she could exploit and who she violently and physically kept under her control. Her actions included forcing her victims into the trunk of a car. She beat her victims, forced them to freebase crack cocaine and threatened them when she realized they sought escape. One victim fled into the frigid Gatineau River. Laura Emerson dragged the victim back by her hair.
We know victims are recruited predominantly as minors. While you hear about adult and minor sex trafficking, remember that many victims that we identify as adults were initially recruited, targeted and exploited as minors.
Who are the traffickers? Law enforcement across the country has begun to nail down their identities. They include violent street gangs like Halifax's North Preston's Finest, Ottawa's the Ledbury Banff Crips, which Laura Emerson and her associate were believed to be affiliated, and Greater Toronto's Haitian gangs the Bloods and the Crips.
Law enforcement tells us that these individuals are armed and dangerous. Police officers are told not to approach them if they identify these individuals. The question I put to you is: How do you expect a 14-, 15- or 16-year-old girl to escape the control of someone like that? How do you expect that individual to be confident to testify in court when, in some instance, his or her traffickers are freed merely one week after being convicted?
The case that truly spurred the need for Bill C-268 was that of Michael Lennox Mark. This was the first Quebec conviction for human trafficking. The victim was a 17-year-old Canadian girl forcibly sold for sex. Her trafficker pled guilty and was sentenced to two years imprisonment, which is an egregiously low sentence for such a serious violent crime. He received two-for-one credit for one year of pretrial custody and spent one week in prison upon conviction. It should come as no surprise that this 17-year-old Canadian victim declined to give her victim impact statement in court when she was informed that exploiter would be free within a week.
The bottom line is that law enforcement officers are deeply concerned that the courts have not recognized the seriousness of this crime or its systematic nature. I have two documents to submit to the committee today. I authored an article in the Alberta Law Review that sets out, in detail, why Bill C-268 complies with our international legal obligations. The age of 18 is consistent with the Convention on the Rights of the Child, which Canada ratified, the Optional Protocol on the sale of children and what is referred to as the Palermo Protocol, the UN anti-human trafficking protocol. Canada already has agreed that less than 18 years is an age at which an individual requires additional protection of the law.
The additional materials before you include evidence from the Criminal Intelligence Service Canada in a report entitled: Organized Crime and Domestic Trafficking in Persons in Canada. This document is literally a 911 call. It came out in August 2008 and identifies for police agencies that this is a systematic national enterprise across the country.
The bottom line is that Bill C-268 is about denouncing this conduct, about separating the individual from society. It recognizes the egregious nature of the crime.
I will end with a one-paragraph quote from an instructional manual given to me by law enforcement and victims group. It is available on the Internet and shows how domestic sex traffickers recruit and lure their victims. It describes the grooming process:
You will start to dress her, think for her, own her. . . . If you and your victim are sexually active, slow it down. After sex, take her shopping for one item. Hair and/or nails is fine. She will develop a feeling of accomplishment.
The shopping after a month will be replaced with cash. The lovemaking turns into raw sex. She will start to crave the intimacy and be willing to get back into your good graces.
After you have broken her spirit, she has no sense of self-value. Now pimp, put a price tag on the item you have manufactured.
To conclude, human traffickers have a plan. They are ruthless. They are making a great deal of money off trafficking. Our current law is not working to hold them accountable. I urge you to pass Bill C-268 promptly and without amendment.
John Winterdyk, Director, Center for Criminology and Justice Research, Mount Royal University, as an individual: Honourable senators, I thank you for allowing me to be here today. I will be brief. I am not a lawyer; I am a social scientist. I will approach this from a slightly different perspective. I obviously condemn human trafficking of any nature, whether of minors or adults in any form or otherwise.
However, as a social scientist, I urge you to think about whether simply passing a law of punishment will act as an effective deterrent. The basic premise of the Criminal Code or any punishment is one of either general or specific deterrence.
Setting a minimum standard is in agreement with United Nation's protocols and in concert with what other countries are doing around the world. That is illustrated in Professor Perrin's article regarding the United States, and is articulated, to some extent, in my written submission. However, there is no evidence that general or specific deterrence would work in this effect. I agree that Canada needs to take action to address this problem but, first, we do not understand the true extent of it. The industry estimates range from $12 billion to $32 billion involving 600 victims to several thousand victims, depending on which resource you look at. If we are going to take steps, we need to understand the underlying motivation and cause behind human trafficking. Depending on the regions studied, the motivation for recruiting individuals, for example from the Balkan States or from the Pacific Rim, tend to be quite different. A deterrent of 5 years to 14 years to life imprisonment has completely different connotations.
I encourage the committee to consider another issue when thinking about setting a minimum penalty: To what extent does the perpetrator of the crime actually acknowledge or pay attention to these things. We see that in other types of crime, such as the war on drugs, war on terrorism and in virtually any other type of crime is that most criminals do not pay attention to the consequences of minimum penalty because less than 1 per cent of crimes such as human trafficking are ever detected and/or reported. The principles underlying deterrents are certainty, swiftness and severity.
Professor Perrin gave excellent examples of individuals who made exorbitant amounts of money and the price they had to pay was basically inconsequential. Whether another human trafficker is observing this or paying attention to this either directly or indirectly, is unlikely. For example, in my research I have found that most youth do not think of themselves as being of risk of being apprehended. Whether you set the minimum at nothing or at 5 years or at 10 years, it is not an effective deterrent to an offender based on opportunity.
We need to make a statement to the public that we do condone this type of action. The energies and resources need to be allocated to understanding traffickers and victims and to providing the front end support to do that. In that regard, a colleague and I completed a study looking at the capacity of Canadian border security to identify and detect potential entrants into the country. The study was in comparative form between the United States and Canada. The results were abysmal. The average CBSA officer has absolutely no skills in identifying, recognizing or otherwise intervening in protecting these individuals from coming into the country. That is a simple example.
If this bill goes ahead, I suggest that in addition to setting a minimum penalty, some of the proceeds of the crime could be redirected into prevention and intervention in the countries of origin, transit and destination to help understand and educate people. In that way, we would address this problem at a collective level instead of thinking that introducing this amendment to the Criminal Code will bring about effective results. I have just returned from the Balkans.
The Chair: I thank both witnesses for their presentations.
I will move to questions. There is no doubt that we have to do something about these awful crimes. I am sure we all agree that preventing them in the first place is better than reacting after the crime has been committed. We all agree that the people who commit these crimes should receive the appropriate punishment. I am not convinced that mandatory minimums are the answer or that mandatory minimums serve as a deterrent.
At our last meeting, we heard from the Canadian Association of Crown Counsel who said that said this bill would bring about fewer guilty pleas if there is a five-year minimum resulting in more cases going into the court system. An overburdened court system means longer periods of time to bring cases to trial, which means that memories, including the memories of the victims, begin to fail. In some cases of such delays, victims are forced into the traumatic situation of having to relive the crime in court. Previously, Crowns were able to work out with the court on a plea-bargaining basis. I know that might not be most popular thing with people but remember that there are individual circumstances in every case. You cannot simply say that they are all the same.
Both lawyers who appeared at the last meeting indicated that they had faith in the court system. Not everyone has complete faith in the court system but keep in mind that the court system includes the judges who hear the cases as well as the appeal process whereby the Crowns can appeal if the sentences are deemed too light.
We do not receive much information on why these sentences appear to be so badly out of whack with what the penalty should be. It is difficult to fathom a one-week or two-week sentence or a one-year or two-year sentence. Sometimes we do not hear the whole story. In a couple of the cases mentioned, other charges and sentences were involved. Some of them were consecutive so it was not one week after all but several years instead. There is also the question of how much time had been served in custody before the case came to trial. Of course, under this bill Crown counsels will have people in custody longer because fewer of those charged will plead guilty due to the minimum sentence.
I ask both of you for your comments. Is a mandatory minimum sentence the right thing to have? Should we not look more at prevention? Should we not look at other ways to reduce the number of these terrible crimes?
Mr. Perrin: I note that six separate issues have been raised. I will go through them one by one. First is the question of whether Bill C-268 and mandatory minimums generally constitute an effective deterrent. That was also one of Professor Winterdyk's main submissions. The legislative record in the house on this and the article I have written show that the primary argument for Bill C-268 is not one of general deterrence. It is one that reflects other recognized sentencing principles, including denunciation, separating the offender from society and providing protection for victims. This bill does that. I would put it back to you the other way by stating that there is no evidence that mandatory minimums provide general deterrence. I say to the committee that there is concrete evidence that the current practice of our courts in sentencing is absolutely failing to protect victims and hold traffickers accountable.
Second, with respect to fewer guilty pleas, I would put it to you that the overburdened Crown load in many provinces in the country, which is a provincial area of responsibility, is a separate problem that needs to be addressed as is the training of judges on this issue. I agree with those measures. Other proposals by Professor Winterdyk, such as providing greater prevention activities, I fully support, and there have been calls for a national action plan. Bill C-268 is not overly ambitious. It is directed at a specific part of the problem and it is here with you now. I urge you to pass it because it would be an effective part of a greater plan. If the committee is interested in studying the issue further and supporting colleagues in developing a national strategy, then I am more than happy to work with you on it. But this is the bill before you today.
I do not believe that a two-year guilty plea that results in spending one week in jail is effective. As evidenced in the record, that occurred in the Michael Lennox Mark case. There were no other charges at issue and he was released within a week. We do not want to encourage guilty pleas like that, which is why we establish these minimums in the first place.
Third, the trauma victims are exposed to when testifying in court is absolutely a concern. Bill C-49 was passed in respect of general human trafficking offences and Bill C-268 builds on that by creating stiffer penalties when the victim is a minor. Fortunately, C-49 brought in a whole range of victim protection measures, such as protecting the victim's identity from the public, including when testifying by video link; and a number of other measures as well. Therefore, there are provisions in place to help the victims gain the confidence that they need to testify.
The fourth point was on faith in the court system and that we should simply trust the judges. I would like to read a quote here. It is from the Report and Recommendations in Respect of Legislation, Policies and Practices Concerning Prostitution-Related Activities. It is from a federal-provincial-territorial working group that studied that issue. It relates to an issue tied to sex trafficking. When the report looked at the mandatory minimum of five years in section 212(2).1 in the Criminal Code, which is the aggravated offence of living off the avails of prostitution of a minor, it stated the following, which was endorsed by the provinces and the federal government:
. . . it is difficult to imagine a case in which the minimum sentence would not be suitable . . . it definitely signals the community's abhorrence of such a crime by imposing a sentence commensurate with the gravity of the offence . . . Both public protection and the expression of public revulsion for such conduct require that the minimum time served in a correctional system be the subject of legislative rather than judicial or administrative control . . .
There is broad recognition that egregious exploitive conduct against children necessitates legislative intervention. We have mandatory minimums for murder, manslaughter with a firearm, possession of child pornography and drug offences. Some of those you may agree or disagree with. This type of conduct, though, trafficking of a child, is one which has far greater support and justification behind it.
Mr. Winterdyk: This notion of denunciation is an interesting one as well. The perception of denunciation is who is hearing this message. The public already abhors this activity. Whether or not you send this message to the perpetrators of the crime, in essence, does not mean much when you look at the vast volume of individuals. If the lowest estimate is 600 individuals being trafficked a year, and let us say each of those has his or her own individual perpetrator, the number that comes before the courts is abysmal.
We already know the justice system is becoming overburdened and is collapsing and imploding on itself because of the cost. We need to understand that the human trafficking, as I referred to it in various pieces I have done, is a ``dis- ease.'' I hyphenate ``dis-ease'' because it speaks to not only the psychological problems that express themselves but also the social problem, the economic imbalances that exist around the world and here in Canada that allow for the exploitation. However individuals get drawn into this, the law itself cannot address that.
In terms of a message going out to the public or to the perpetrators of this crime that we will take this seriously, there are other ways we can take this seriously. The law has been a wonderful tool, but if we look in terms of the effectiveness of the Criminal Code, it has tripled in size since the turn of the last century, and crime is not going down. We need to address the social ills of society and human trafficking, and, as Professor Perrin points out, it is not just an international problem but also a domestic problem. Regarding the perpetrators of those crimes in Canada, if we look at the traffickers and not just the victims, we will see that the traffickers have a lot of dis-ease as well. If we are not able to help them, then the problem will not go away by simply amending the Criminal Code.
As we well know, within the correctional environment, the majority of offenders are not there because they are of sound mind and body. They are there because over 60 per cent or 80 per cent of them are challenged with social, economic and mental health issues.
Senator Plett: Mr. Winterdyk, you suggested that we do not understand and we do not have evidence that mandatory minimums in fact are successful. The fact of the matter is if we do not try something, then we also will not know whether it is not successful. We do not have mandatory minimums right now. Clearly the system we have now, as Mr. Perrin has said, is not successful, it is not working.
I believe that first and foremost we need to punish the crime. To me, and I say this maybe with some reservation, but the deterrent must be secondary, in my opinion, to the punishment. In fact, being in jail is a huge deterrent to trafficking people. The trafficking that the person in jail will do might be in jail, but he will not be trafficking children out on the streets if he is in jail. That alone is a large deterrent.
My biggest concern is to protect the victim. You are absolutely right, sir, when you say that these Lennox Marks of the world and Imani Nakpangis of the world clearly have some terrible problems. I do not doubt that for one second. Maybe they are not beyond help, but they must receive that help behind bars where they cannot hurt innocent children. As Mr. Perrin suggested, Imani Nakpangi tattooed and branded his victims to brainwash them into becoming another Imani Nakpangi on the street.
I agree with you, Mr. Winterdyk, that five-year minimums are not the way to go. We should have 10- to 15-year minimums. I certainly would want these people in jail for a lot longer. As I said, if they are in jail, they will not be involved in human trafficking.
I agree with the great comment you made that the proceeds from these horrible crimes should be used to help the victims and should not be used to help the perpetrators of these crimes. I am certainly entirely supportive of that comment.
Our chair suggested that a couple of lawyers last week had not been supportive of the mandatory minimums. I would like to remind the committee that the group we had just a day or two before that, Statistics Canada, the Department of Justice and the RCMP — I might be wrong on all of those groups — but I certainly got the impression that they all supported the mandatory minimums. I would suggest there that is four groups to two groups in support of mandatory minimums. I certainly agree with the groups that did support them.
The chair was wondering whether we are hearing everything that there is to be heard. I do not believe we are. I certainly believe there is a lot that we have not heard. Frankly, I do not want to hear any more about Lennox Marks and Imani Nakpangi again. I am sorry if this is not the right attitude, but I do not care about those individuals at this point. I care about the Eves of the world and about the 17-year-old girl that was raped over and over again. Again, prevention is keeping the perpetrator in jail.
I do not have a lot of faith in our court system on some of these issues, keeping in mind that I do not even think it is necessarily the judge's fault at all times. It is our system's fault. The lawyers here last week talked about all the plea bargains. Fortunately, we have gotten rid of the two-for-one sentencing fiasco. That is a huge step in the right direction. That would only have given Lennox Mark two years instead of one year, which still would not have been enough.
I thank you both for your input here today, but I have to say, and I would never want people to say when you vote that it should be a secret ballot, but as someone said to me one day, your fig leaf has gotten small, Don. Everyone knows how I plan to vote on this particular bill, and I certainly hope everyone else will do the same.
If there are any comments you would like to make to my comments, feel free. I have not asked a question but made a number of comments.
Mr. Winterdyk: I appreciate the gravity, and I think we all do. At the end of the day, what I hear is a reactive process. Yes, perpetrators need to be held accountable, but if we do not build in this notion of deterrence, then the future perpetrators of human trafficking will follow in their footsteps. There is plenty of research to show that if a message does not go out to the community at large, it does not have a ripple effect to future offenders. If you want to simply punish those that you are able to identify, capture and sentence, fine. However, what will we do about all the new offenders coming forward?
If you look at the literature, we see that as we are responding and as the global community is responding, the offenders are responding in kind. We used to only focus on international trafficking. Now, because of issues of border security, domestic trafficking is becoming an issue. As is the case with all crimes, crimes tend to morph because they know the punishment is not effective.
Mr. Perrin: I want to break down this false debate about deterrence. What the evidence shows, and this is absolutely true, is what does provide general deterrence generally is increased enforcement, greater public education and greater awareness about the instances in which people are arrested for crimes and held accountable for them.
The key part that everyone seems to be missing who says Bill C-268 will not help deter is the fact that no matter how much enforcement there is, no matter how much public awareness is raised, if the law still allows for one week in jail upon conviction, it will not deter anyone.
I hear a great deal of this mutually exclusive language being made by some who have concerns about this bill. I would put it to them that this bill is part of the solution and we should not fall prey to the famous maxim that perfection is the enemy of good. Certainly a greater national action plan, which disgorges proceeds of crime routinely from traffickers, is something I fully support. I support prevention as well.
As I said earlier, this bill is with you now. We have an opportunity in this minority Parliament to pass it without amendment, before the summer recess, and that again is what I recommend.
The question was put of who hears the message of denunciation if no one really knows what is going on in court. I can tell you the Michael Lennox Mark case was never public until our researchers identified it and put it into the Alberta Law Review article. It came out from reviewing the court record.
I can tell you who is hearing the denunciation message. Over 14,000 Canadians signed a petition in support of this bill, including the Assembly of Manitoba Chiefs.
Let us not forget the one person who matters most: The victim who sat in the courtroom and decided not to tell her own story because her trafficker would be out within a week.
Senator Martin: Thank you both for your presentations.
I have a question for Mr. Winterdyk concerning the need for front-end support to address this issue. You spoke about the need for greater law enforcement and how to provide that kind of support. Professor Perrin mentioned that during the course of this three-year research he consulted or met with front line officers. Is that correct?
Mr. Perrin: Yes, I spoke to front line officers in eight Canadian cities.
Senator Martin: I would like to hear more about what you heard. We heard witnesses from the RCMP. We had some other officials and many of them said that because the provisions are new since 2005 that there are cases currently in the courts but, in terms of this human trafficking issue, it the cases are increasing and yet we are still educating ourselves and need to learn more about this crime.
Could you tell us, Professor Perrin, what you heard from the police officers you met with in the eight cities? We need to hear what they had to say.
Mr. Perrin: I thank you for that question and you have made a crucial point. While the RCMP has the Human Trafficking National Coordination Centre, that office has absolutely no investigative capacity at this present time. All of the human trafficking cases that I have referred to the committee involved municipal police forces, which, as you correctly point out, have not been before this committee.
What I heard in speaking with officers in these eight cities, which included Montreal, Quebec City, Ottawa, Winnipeg, Edmonton, Calgary, Vancouver and Victoria, was that to begin with, human trafficking is an issue they are beginning to finally understand. Part of the reason is because it is so deeply underground. There are very few resources for victims. That has been a major concern. When we look at where accountability for victims' services lies, it is with provincial governments.
Other than the issue of the federal Criminal Code, border issues and immigration issues if there is a foreign victim involved, all of those needed services fall within provincial jurisdiction. Those issues include where the victims live, what housing they will receive, whether they can obtain medical support to have the tattoos removed or altered, how they get into back high school, and what sort of income support or job and education can they expect. Only Alberta and British Columbia have comprehensive systems in place. Ontario is a gaping hole.
I have had the chance to meet with Premier Dalton McGuinty and put the evidence before him, similar as I have today with you, and called on the provinces to step forward and provide services for victims.
The federal government's role is to ensure that we have well-conceived and well-crafted federal laws. Law enforcement officers who have begun to prosecute these first few cases, particularly Peel Regional Police in the Greater Toronto Area, are the very officers who raised the specific concern about the inadequacy of the sentences and recommended to our research team that a mandatory minimum sentence be put into Bill C-268 and into the Criminal Code. This comes from the front line police officers and they are certainly the people who see these cases.
Police officers have told me that traffickers in Canada consider the sentences handed down against them to be a joke. Who can blame them in feeling the sentences are a joke? If you can earn $360,000 over a two years and end up spending a year or two in jail, that is not a horrible trade-off for some of these individuals, and that is someone who was caught. As we have heard, most of them are not apprehended.
There is a real concern among law enforcement that the Criminal Code is not up to what it needs to be. In fact, the Canadian Police Association has endorsed Bill C-268. We need to listen to our officers when they tell us that these violent organized criminals do not take the law seriously and, as a result, continue to act with impunity.
Senator Martin: You mentioned that the law is a very wonderful tool. Yes, it is a tool at our disposal; however, some tools can be blunt or less useful, less effective if not sharpened.
I feel that this bill addresses how we can improve this tool because we do have the current provisions. However, as you said, Professor Perrin, there are some gaps. As the early sentences show, they are not serving the victims and not serving the public in the way that they should.
You also mentioned that the global community is responsible. It is a growing global problem. However, it is true that other jurisdictions have addressed this with more stringent penalties. Some of the members around this table have said we need stricter penalties.
Would you comment on why it is a five-year mandatory minimum and not 10 years or 15 years, as it is in other jurisdictions? How is the five-year mandatory minimum very specific to what can be usable in Canada?
Mr. Perrin: That is an issue that we will look at very closely. We wanted to ensure that the minimum was not too low and that it was not too high.
Those of you who have children know the story of Goldilocks and The Three Bears. There are some senators who say it is too low and some who say it is too high. That would probably suggest it is just right.
To be more direct though, we looked at the constitutional standards in the Ferguson decision in the Supreme Court of Canada and the Chief Justice of Canada's statement about the current test.
I was asked not to get too technical into the legal issues, but as a criminal lawyer and a criminal law professor, my legal opinion is that Bill C-268 is constitutionally sound and that five years is an appropriate level. I believe there would be potential for a successful constitutional challenge if we were to get into the realm of a 10-year or 15-year minimum sentence. At the end of the day that would in fact not protect any victim.
To pass a law that simply looks tough, that will not pass constitutional muster, will not help these victims. Therefore, my emphasis is that Bill C-268 is a measured response. It is a calculated response that recognizes the Supreme Court of Canada's test. It also recognizes human trafficking is not a crime that can be committed accidentally or with low levels of mental fault. Human trafficking has the highest level of mental fault in the Criminal Code, which is a purposeful or intentional act. As a result, we believe the bill will pass muster.
We also compared the five-year sentence to section 212(2.1) of the Criminal Code. There are important differences between Bill C-268 and that section of the Criminal Code. However, the court told us it will look to other similar or related offences to see if their minimums match. We carefully brought parity to the Criminal Code with Bill C-268 so that both section 212(2.1) and Bill C-268 have this baseline five-year minimum sentence.
Senator Dyck: I think everyone here agrees that we need something in place to protect minors in Canada from trafficking. It is a terrible crime. There were concerns with respect to the imposition of minimum mandatory sentences.
With regard to past cases, you indicated that Michael Lennox Mark only served one week. That will no longer occur because of recent legislation. You neglected to mention that in the cases of both Imani Nakpangi and Michael Lennox Mark, they were sentenced for trafficking as well as other offences. In the case of Lennox Mark, he was given two years for procuring. Therefore, his total sentence was four years. Mr. Nakpangi's total sentence was five years.
Bill C-268 will offer a tougher sentencing option, but other sentencing options are available. How did that factor into your decisions in the drafting of the bill to impose a five-year mandatory minimum sentence, knowing that the person can be charged with other offences?
Mr. Perrin: There is already judicial practice on when a concurrent or consecutive sentence should be handed down. Basically, if someone is convicted on two charges and sentenced to two years for each charge, it is up to the judge to determine whether the sentences are served at the same time, making the effective sentence for both counts only two years. In other rare instances, sentences are served back to back.
My understanding of the Lennox Mark case — and it should be examined further if you have evidence to the contrary — was that he was not given consecutive sentences. However, Imani Nakpangi was given consecutive sentences. There were two victims involved in that case and the total sentence was five years. Imani Nakpangi was given pretrial credit as we mentioned earlier.
Your question was how that factored into other offences. When criminal justice policy is crafted and the Criminal Code is developed, it is based on discrete criminal acts. We do not consider that a murderer may also break and enter, assault someone on the way into the house or commit theft. Those are separate crimes.
Similarly in this instance, separate crimes are committed by traffickers. If they take photos of their underage victims and post them on the Internet, which many have been alleged to do, that is the separate offence of distributing child pornography.
Why would we provide the offender with a lesser penalty for the ongoing sale of a victim to random men for sex acts? Why would we reduce it or think it is less egregious if they also commit other crimes? I do not see that logic. We followed the standard practice in drafting criminal law, which is to consider the discrete criminal elements separately.
Senator Dyck: We have heard from witnesses and read comments from others about how women and children are trafficked almost exclusively for the purposes of commercial sexual exploitation in the sex trade — in other words, prostitution-type related services. Why does Bill C-268 not specifically address that issue?
UN conventions and the International Labour Organization discuss the worst forms of child labour. They include commercial sexual exploitation and drug trafficking as the worst forms. There is more than one form of trafficking minors. Why did not you distinguish in Bill C-268 that minors are trafficked explicitly for sexual exploitation and for the profit of the trafficker?
Mr. Perrin: This bill is directed to all forms of human trafficking because that is what Canada committed to do. Canada ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, in 2002. Part of the legal obligation under this binding treaty was a promise to create a crime of human trafficking with respect to all forms of human trafficking. The bill is based on our international legal obligations. Canada must ensure that our laws are ready and equipped to deal with these forms of trafficking.
Are forms of what we refer to as forced labour trafficking happening in Canada? This talks about things like domestic servitude — a minor who is unable to leave the home of someone that she was brought into Canada to provide babysitting or massage services. These people are treated literally as modern-day slaves.
Should Canada's law treat those forms of exploitation less seriously? I mentioned a case earlier to point out that it is a false distinction to split sex trafficking from forced labour.
Bill C-268 takes the standard that these are all forms of exploitation that we need to take seriously. As a result, when we have cases like the young girl from Saint Vincent and the Grenadines that I mentioned where she was a domestic servant by day and she was raped by the man of the house at night. No commercial exchange occurred; no money was traded. We need to be careful how we craft the laws to ensure they are broad enough to capture all forms of trafficking that can be and have been derived.
A final word of caution is in regard to the United States, which has had a crime of human trafficking in minors for many years. The U.S. was fortunate to have a law that captured both sex and labour trafficking because it allowed them to deal with issues that came forward. Today, their law provides much higher penalties for sex trafficking. It has been roundly criticized by a number of non-governmental and feminist organizations.
Senator Dyck: Is the U.S. law still on the books?
Mr. Perrin: Absolutely. The United States has a 15-year minimum sentence for trafficking those victims under the age of 14 and a 10-year minimum sentence for those between 14 and 18. The major difference is that the U.S. has not ratified the UN Convention on the Rights of the Child. Therefore, we have totally different standards to which Canada has committed that the U.S. has not.
Senator Dyck: Is it correct that the U.S. does not have a minimum mandatory sentence for trafficking for the purpose of forced labour?
Mr. Perrin: Yes, that is my understanding.
Mr. Winterdyk: I would like to follow up on Senator Martin's question to Professor Perrin. Our study looked at CBSA front line officers. We also had anonymous senior RCMP officers that went off record to comment on resources available to combat entry of perpetrators into Canada. They basically all agreed that resources available to apprehend or prevent people from entering the country are almost non-existent. Basic training opportunities are available to senior management, but it is virtually non-existent for the front lines.
One suggestion in the report was to provide the resources to combat entry of the perpetrators. When we talk about providing resources for the criminal justice system per se, whether it is law enforcement, corrections or the judicial process, we simply continue to add layers to a criminal justice system that can no longer support the cost to its citizens.
It is argued that the criminal justice system needs to continue to denounce, but in denouncing, when we use the term ``measured response,'' in whose estimation is that a measured response? Is five years acceptable to all Canadians? Do we use the utilitarian principle of the greatest good for the greatest number? Should we go to the extreme, push the law to the limit, and put it up to 10 years or 12 years?
The criminal justice system needs to continue doing what it does. We cannot throw out the baby with the bathwater. In the meantime, we need to look at the prevention oriented ideas, education and asset forfeiture and so on. By way of example, the United Kingdom has an equally horrendous problem with human trafficking. A couple weeks ago, the London Metropolitan Police disbanded the human trafficking unit because they do not have enough resources. It is not that they do not recognize it as a serious problem, but they do not have the resources to deal with it. We also need to be cognizant of that and think seriously about how we can best use the resources we have to combat this grievous problem.
Senator Eaton: This is interesting. It distresses me that both the chair and Mr. Winterdyk are more worried about the court system. You seem to be on a tangent of worrying about the judicial system and not about what is at the heart of this bill. You have provided us with some very nice academic language to say that you do not believe in deterrence. Your research has shown you that and I respect that. Forget the court system and the judicial system. Do you believe in punishment for sex trafficking?
Mr. Winterdyk: That is a loaded and interesting question. I believe that a message needs to be sent to the general public that justice is seen to be done. At the end of the day, no matter what our punishments have been for rape or terrorism, we are not seeing the results we expect. I repeat that the Criminal Code has literally tripled in size since the early 1900s. The rate of recidivism in institutions shows us that we can lock people up but they will get out sooner or later and the message is that once they get out they go right back to what they were doing. I am currently studying gangs.
Senator Eaton: Do you know anything about the rehabilitation and the success of it in jails with sex traffickers or people who have sexual problems.
Mr. Winterdyk: That is a very good question. As Professor Perrin pointed out, part of our difficulty is that there is a vast body of literature but the quality of literature on the studying of traffickers is extremely limited. I am going through some material now. I was recently in the Balkan States where they are looking at that particular effectiveness, but it is too early in the process to determine whether that is an effective deterrent.
Senator Eaton: In effect, a prison sentence might be the only protection afforded to the public.
Mr. Winterdyk: I agree. It is the only protection that the public has at the moment. As I said earlier, one of my other overriding concerns is that yes, we need to address the perpetrator but equally, we need to address the forthcoming perpetrators.
Senator Merchant: My question is directed to Professor Perrin. Why is the U.S. criticized for their law on the sex trafficking of minors? What is wrong with it? I believe you said that, did you?
Mr. Perrin: Yes, the United States has been criticized for its law because it is not reflective of what the international community has recognized, which is that there are other forms of human trafficking beyond the involvement of sex acts. In some instances, those other forms are just as degrading and life-altering as forms of sexual exploitation. The U.S. law also ignores the issue of what constitutes sex trafficking. You get into the same issue that we faced with the law governing rape and sexual assault. If you think you have a definition of sex trafficking, I would love to hear it because the term alone has been hotly debated. For example, is it sex trafficking when a minor is posted on Craigslist as being for sale for sex? We say, yes, it is. How about someone who is forced to strip as an exotic dancer? Is that sex trafficking? Is that young girl I mentioned earlier who is in a domestic servitude situation and abused by the employer at night, in a sex trafficking situation?
A problem occurs when you try to cut out one form of trafficking that may be of concern to you as the most egregious because it can leave big gaps in the law. That is why the U.S. approach has been challenged.
I encourage members of the committee to look at the recent U.S. publication on the topic by a researcher named Kevin Bales and is called, The Slave Next Door. Some of the so-called labour trafficking cases in the United States are extremely egregious. One case that opens the book involves an individual literally being chained outside in Texas during 40-degree-Celsius temperatures so that no one could see the domestic servant being exploited in the house.
We need to be careful not to craft a law today that will be far too limited to encompass the forms of human trafficking that we know exist in Canada. We would be naive to think they are not happening here.
Senator Merchant: That is the problem. It is difficult to define the instance and to have just one punishment for all these different instances. That is what I find difficult with the sentences.
Mr. Perrin: The definition of ``exploitation'' used in Bill C-268 is the same phrase that then Minister of Justice and Attorney General Irwin Cotler proposed. This bill uses the same definition of human trafficking as is currently in the Criminal Code. I find it hugely incongruous to have a general offence of human trafficking in the Criminal Code and then carve out one piece involving sex trafficking of children, which we think is worse than human trafficking of a child for any purpose. It would not be consistent with what Canada committed to doing, which is to identify all forms of trafficking.
The definition is quite specific, and the courts will begin to interpret it as cases come forward. We are waiting to see what further evidence they will have. Let us not tinker with that definition at this time. The time for that will be later. Bill C-268 uses the same definition and makes a focused change, which is to deal with the sentencing issue.
Senator Cordy: Professor Perrin, you said it was amazing that a private member's bill has gotten this far. A couple of years ago, Liberal Senator Phalen from Nova Scotia brought forward a bill on human trafficking. However, Parliament was prorogued so we did not have time to get the bill through before Senator Phalen retired.
Everyone around the table would agree that human trafficking is a horrific crime. It is found in every major centre in Canada. We tend to think of it as being international but it is in our backyard. Homeless women and children are the most vulnerable to becoming victims. I used to sit on the board of a centre for homeless teens in Halifax.
One thing struck me, Mr. Winterdyk. Did you say that less than 1 per cent of traffickers are detected and reported?
Mr. Winterdyk: Less than 1 per cent reaches conviction.
Senator Cordy: Punitive measures are not going to change much because 99 per cent are not found guilty and not convicted. Unless we do other work in Canada to provide deterrence to the crime, then this is bill will deal with only 1 per cent of the crimes being committed?
Mr. Winterdyk: Exactly.
Senator Cordy: That is scary.
Mr. Perrin: If I may, it is not at all clear to me what this 1 per cent statistic is. We need clarification. My research does not say anything to indicate that in Canada there has been only a 1 per cent conviction rate. It is much higher than that. The committee would need clarification on what Professor Winterdyk is specifically referring to.
Mr. Winterdyk: The 1 per cent goes back to my earlier comment that we do not even have an accurate number of how many perpetrators there are in Canada. The 1 per cent is based on a crude estimate of how many we think there are versus the potential number of perpetrators. If we go on official statistics, it could be as low as 600, in which case the 1 per cent would be lower; and if it is 8,000 or higher, then the percentage is extremely low.
Research out of the United States points to the fact that because we are preoccupied with the problem while not understanding it, we are putting parameters around things that we do not fully understand. I am not suggesting that we are overreacting but rather than have a knee-jerk response, we need to understand this phenomena in order to take the appropriate measures.
That body of literature is finally beginning to emerge. What Professor Perrin is doing, some of what we have been doing, and what is emerging in the United States and internationally is beginning to shed light on these richer questions rather than the descriptive information where we talk about case examples. A case a cause does not make.
The Chair: Thank you. We have run out of time. Thank you to both witnesses.
We will continue with our second panel. We have two people from the International Bureau for Children's Rights. Ms. Nadja Pollaert is Director General. She received her diploma in international relations from the Institut d'études politiques de Paris. She also received her master's degree from the Université de Montréal. She spent many years working as coordinator of the committee to aid refugees, defending the rights of refugees and advocating for asylum.
Mr. Camille Karbassi is Program Manager against Child Trafficking. He earned a diploma in international law from the Université de Paris. He has since acquired vast experience in the field of human rights and trafficking. He worked extensively in South America with different NGOs on these issues and contributed to United Nation's reports on modern forms of slavery. He has developed training for front line workers in Canada that focuses on the identification of children— victims of human trafficking.
[Translation]
Nadja Pollaert, Director General, International Bureau for Children's Rights: First, may I thank you for this opportunity. It is a privilege to appear before you this afternoon.
We feel that the first question to be asked is why we have so few trafficking charges in Canada today. This is a question that neither Professor Perrin nor Mr. Winterdyk has yet answered. Then, having worked with police officers and with victims' rights organizations, we want to point out to you that yesterday's victims can sometimes help to recruit the victims of today.
The position we take is on the side of children's rights, which is very different. In our view, when we look at other international instruments, like the UN guidelines on crime prevention, it is very important to consider the 3 Ps: prevention, protection and prosecution.
Canada has already passed a body of legislation on sexual exploitation, as mentioned in particular in Canada's first report on the implementation of the optional protocol against the sale of children and sexual exploitation.
The police to whom we have spoken, in particular in and around Montreal, have confirmed to us that this legislation is very effective, that it does what it is supposed to do, which is to put abusers in prison and to protect victims.
Camille Karbassi, Program Manager, Child Trafficking, International Bureau for Children's Rights: I would like to add that we are in complete agreement with recommendation 6 in the Senate report on children entitled The Silenced Citizens.
We think that a holistic approach is important and that prevention must be considered as well, not just the suppression of the crime. We must understand how complex the phenomenon of trafficking is before we move such a major response to the legislative level. This is a most complex phenomenon that is very difficult to pin down.
As Ms. Pollaert said, I think also that it is important to understand why there are so few convictions. Is the problem with the evidence, with the charges?
It is also important to educate and train judges to understand that they have an important role to play; they must also be given room to manoeuvre. That is basically our position, because a position that does not give judges that room to manoeuvre is a dangerous one. As was mentioned, victims often become traffickers themselves, so it is important to consider how the response can be adapted to the situation.
Ms. Pollaert: We have trained a number of organizations that work with young people in the street and in bus stations, kids who are exploited and vulnerable. The people involved told us that one of the problems is the availability of protection.
We held round tables with Youth Protection, the RCMP, Border Services, Citizenship and Immigration Canada and the Montreal police. I feel that it is important to stress that young people in a trafficking ring run by street gangs do not always want to get out of it, do not always see themselves as victims. That is something else that has to be looked at: we sometimes have a lot of difficulty getting them to testify, because, as victims, they really have no other option in life and they are trapped in the ring and the manipulation.
We would like to draw your attention to the fact that victims can sometimes become recruiters. If the minimum sentence goes to five years, those who have been victims are in danger, because the judge will no longer have the discretion to take that factor into consideration, where a victim becomes an abuser and commits a crime.
The whole question of the sexual exploitation of children in Canada must be considered. We have appeared before the Standing Senate Committee on Human Rights on this matter and we know that currently no strategy is in place. But there is a lot of good will and we have produced a report painting a picture of trafficking in Canada. At the moment, there is even no difference made between the trafficking of children and the trafficking of adults. So it is a problem. Violence against children, sexual exploitation and luring on the Internet are areas where we see that action is not coordinated. That is another important factor to deal with.
[English]
The Chair: That was brief. Thank you. You talked about victims who recruit new victims. One of the problems I have with mandatory minimums is that not all of the perpetrators are the same. Certainly, we want to see some of the bad cases that Professor Perrin talked about get an appropriate sentence. However, some perpetrators are themselves victims who recruit new victims. I would like you to talk more about that. Do those victims deserve a five-year sentence? We know in other cases where people are manipulated, brainwashed and set about doing these kinds of things. They would be caught by this bill and subject to a five-year minimum. Could you comment further about such a situation?
[Translation]
Mr. Karbassi: It is important to have a case-by-case approach. Often, girls who have been victims can play a fundamental role in recruitment because they manage to gain the confidence of new victims. They are manipulated, which is why they cannot really be considered traffickers because, as former victims themselves, they have already lost their humanity to a considerable extent. It is important to maintain that case-by-case approach and not to lump them all together.
[English]
Ms. Pollaert: I would add that the laws governing refugees and immigration are becoming restrictive with regard to international trafficking. In many cases, people are trafficked into Canada because in some instances they have no legal way to get into Canada.
We did not mention this point but there is a specific temporary permit for trafficking victims, which is six months. It is our view that it is not procedure. We know from people who work with refugees that they do not complain. There is no insurance that they will not be sent back. Often there is no collaboration between the courts, immigration and the border agencies. I had a case of a victim from Bangladesh who wanted to testify but CIC deported her before she could testify. That is usually not a great thing to do if you want the testimony heard by a court.
There are major issues with regard to victim protection, especially for foreign nationals and people who have no status in Canada. It is a discretionary permit so there is no obligation to issue it. The immigration officer can decide to give it or not. It is difficult to gain the trust of victims and say that they have a chance.
With regard to children, we think it does not take into consideration the primary consideration, which is the best interest of the child. That can be found in Article 3 of the Convention on the Rights of the Child. After six months, the child can be sent back. It is our view that there is no in-depth evaluation of the possibilities of being re-trafficked.
[Translation]
Senator Champagne: You have each talked to us a lot about your preference for a case-by-case approach rather than for a real minimum sentence, so that the judge has the widest possible manoeuvring room. In theory, I find that right and proper. But we have seen what happens when one of these abusers is caught: he is put behind bars for a while and then they come up with the two days' credit for every one he spent in jail before his trial. So those days are counted double and, after abusing a victim for two or three years, he ends up doing about a week in prison. In cases like that, I wonder if it would be better to have at least some minimum sentence before he is put back on the street to start the same racket all over again.
Ms. Pollaert: We agree with you in principle. But, before you make your decision, we would like you to consider that existing laws against the sexual exploitation of children have a lot of teeth. That did not come out today in the presentations. I do not have detailed statistics. There are a number of child sexual exploitation cases before the courts and people are being sentenced.
We know from police officers working in the street that the police often tend to use sexual exploitation and organized crime legislation because they know that they will end up with the same result. The person will go to prison. Trafficking is so hard to prove because it is longer and more complicated. There is a greater danger of not being able to prosecute people, but you can do that very well with legislation that is already in place. So I would invite you to compare this with the legislation that is already in place and how effective it is. Specifically, compare the combination of sexual exploitation and organized crime legislation with the human trafficking act.
Senator Champagne: We also have problems with young people who are put with a family, in a house, for example. It is really forced labour. That should be included too. You talked about the difference between trafficking in children and trafficking in adults. That is the hole in the legislation that Bill C-268 would fill because everyone under the age of 18 would be covered. There would be less danger that victims would recruit other victims. That is what you were talking about. That shocked me. I am not sure whether any of my colleagues reacted in the same way to hearing that victims recruit other victims. Maybe it is a way to get better treatment from the people holding them.
Would Bill C-268 not make it so that, with children under 18, it would be considered a crime, but that abusers like them would get a lighter sentence? Are you completely against that as an idea?
Ms. Pollaert: We did not come here to be for or against. I just think that it is important for us to point out that, if the kids, in certain cases, move from being victims to being recruiters, it is important to take that into consideration and to see how this proposal can be adjusted to accommodate the situation.
[English]
Senator Plett: Ms. Pollaert, you mentioned victims who recruit victims. If the victims who recruit are underage, they will be tried as minors, so this bill would not apply to them. It would apply only if they were over the age of 18 years. I am not sure that is entirely relevant. If they are adults and they turn to crime, it is terribly sad. We should try to work with them and to help them before they turn to that crime.
I had a conversation with an individual that used to be a provincial attorney general. I discussed with him situations like those you mentioned where there is not much leeway; they must be tried even if there are circumstances. He is quite sure that if there are extenuating circumstances — I hate to say this — there are enough loopholes that they can be tried for something other than human trafficking.
We keep saying we want to have faith in our judicial system and in our judges. I would also have faith in the prosecutor that he or she may be tried for another crime if there are extenuating circumstances. Maybe that is a cop- out.
I said this repeatedly, and this may be the last time I say it because our committee hearings are coming to a close, we bend over for the perpetrators and the victims will simply have to suffer. It is time that we start to penalize the perpetrators and not the victims.
Ms. Pollaert: I think you take the problem from the wrong standpoint. That we do not have a lot of cases in court currently is not because there is no minimum sentence. There are no cases because people are not willing to testify. It is complicated for police to gather proof.
I do not think this bill will change much concerning sexual exploitation of children or human trafficking in Canada. We have given this training to approximately 20 organizations. We work with people that work with children and youth in difficult situations and that may be victims of sexual trafficking. They do not even know what to do with such a child or to whom they can turn. For example, in Montreal, gangs involved in trafficking are outside the youth centre and call the girls. Manipulation and the other factors are still involved. What the bill proposes is, for me, not about victim protection.
Senator Plett: You say this bill will not help these victims, but you have not convinced me that it will hurt the victims. Unfortunately, we will continue to have crime. Even if we had capital punishment, we would continue to have crime, although that individual would not commit a crime again. We cannot simply throw our hands up and say, ``It will not work anyway, so let us continue the way we are going.'' Human trafficking is a problem and it needs to be addressed.
Senator Cordy: I would like to think that you did not say we should keep things the way they are. I want to thank both of you for the work you do for children and the rights of children around the world.
I see the low percentage of traffickers that are prosecuted and found guilty. Whether it is 1 per cent or 10 per cent, we know it is low. That is scary because we are producing a bill that will deal with a low percentage of the crime when the problem is growing increasingly larger.
I do not think a perpetrator thinks about whether they will get one year, five years, or 10 years because few of them are caught. Their feeling will be that they will not be caught rather than they will not commit this crime because they might be sent to jail for five years.
Human trafficking is a horrific crime. We want those found guilty to be punished severely because of what it does to the victims who are, in many cases, the most vulnerable members of our society in Canada or from other countries.
When I look at Bill C-268, I do not think it goes far enough. It deals with the punitive aspects of the crime, but I wish part of the bill dealt with helping people. We talk about breaking the cycle of poverty; I would like to see us breaking the cycle of human trafficking. I do not think being punitive is enough to stop that cycle.
You talked about victims becoming perpetrators. By sending those victims to jail for five years, we re-victimize them instead of helping them when they were victims, which is what your organization does.
What else should we be doing? We heard from other witnesses that we should educate our border security because they are unable to determine people that may be victims of trafficking coming across the borders; that the proceeds of crime are used to help victims; and that RCMP needs more resources to go after the problem.
Many people feel trafficking is only bringing in people from other countries. Trafficking is common in all of the major cities in Canada. I am not sure people understand the prevalence and severity of the problem. Should we have a national action plan dealing with human trafficking?
Ms. Pollaert: The idea that we should have a national action plan is not new. Even the government has been interested to implement a national plan of action, but nothing has been done.
Another problem is that we talk a lot about trafficking, but we want international groups for children's rights to broaden the definition to the sexual exploitation of children, which comes back to the preoccupation of the Senate as well. I told you that we had the privilege to appear at the Standing Senate Committee on Human Rights in October.
We have asked for a national children's ombudsman for Canada to coordinate different initiatives with regard to sexual exploitation and violence against children. This would be a way forward to achieve coordination and to identify good practices.
We are regulars at the committee of Senator Dallaire against the sexual exploitation of children, which includes many native organizations. After all these years of participation, we came to the conclusion that there must be a focus on good or commendable practices more than on punitive measures to prevent trafficking, especially in native communities. We have worked with native women's centres, and they are concerned about what is happening on reserves. Prevention is a main factor.
Senator Dyck: One of my major concerns with the bill is that it put all forms of forced labour of minors into one package. However, the International Labour Organization's convention identifies a need to prioritize the worst forms of child labour. That category of worst forms includes commercial sexual exploitation and the use of children in drug trafficking.
Do you think the bill should, at least, address the fact that most children are trafficked for the purpose of working in the sex trade for the profit of the trafficker?
Mr. Karbassi: I believe it is important to consider all aspects of trafficking for sexual exploitation. There is a greater prevalence of sexual exploitation in Canada. However, I do not think it is necessary in the bill because a bill is for the long term and we do not know how things will evolve. It is good to mention all forms of human trafficking, not one specific form.
Ms. Pollaert: We are defenders of international instruments and Canada has ratified many of them. Canada's report on the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography is basically an inventory of laws.
I am not a lawyer, but I like laws very much when they are applied. We did not find much quality information in the report of Canada to the Committee on the Rights of the Child concerning their application. We are sceptical about whether this bill will truly have an effect for children and youth.
Senator Dyck: You talked about the need for the victim to testify and the problems associated with that. One of our previous witnesses indicated that with minimum mandatory sentences, if the case had to go to trial, then the victim had to testify. Do you think that the imposition of a minimum mandatory sentence would likely force the victim to testify? Is that a negative aspect that might arise as a result of imposing mandatory sentences?
Ms. Pollaert: This is absolutely a negative effect. We have been drafting the UN guidelines for children victims and victims of crime. One of the articles adopted by the international community says that the child should not be used in criminal procedures. There should be a possibility for an exploited or abused child or youth to say the he or she does not want to testify. It is important that the best interests of the child be at the forefront.
Senator Merchant: Can you tell us about other jurisdictions similar to Canada where they have the best practices to which you referred so that we could make the reference when preparing these bills? We heard a few minutes ago that they were critical of the programs in the United States.
Mr. Karbassi: There are other jurisdictions in Europe, for instance, where they do much more work on prevention than on prosecution. They have been very successful at focussing on prevention. England and Ireland have a very good practice of coordinating services. There is a real strategy that has been very successful. There are no minimum sentences but there is an awareness of the judges and the police. As well, there are more cases of human trafficking in the justice system. This is a good practice that we could imitate in Canada.
Senator Merchant: Do you know whether it is extremely expensive? Why can we not imitate these same practices? If someone is doing something that is working, why are we trying to reinvent the wheel? If something is working somewhere else, why do we not adopt these practices in Canada?
Ms. Pollaert: With the first report we did in 2002 on child trafficking to identify whether it is a problem, we found that there is not a lot of collaboration between the different levels of government and the NGOs. There is a problem with coordination.
One of the outcomes of Senator Dallaire's committee is to make the effort. Currently, there are many local initiatives to prevent trafficking or sexual exploitation of young girls, especially in native communities. Although they might not have much funding, they have the will to gather and evaluate good practices. This could be a good recommendation.
Senator Martin: After listening to both of you, it is clear how much you care for the victims and the advocacy work that you do. All of us around this table share the same hopes and goals to address this problem and to plug the holes and strengthen our system.
This bill addresses a specific provision that we want to add to the Criminal Code. In no way does that mean that we are neglecting or overlooking the other needs we have as a society and as a country. The member of Parliament who sponsored the bill testified and the professor on the panel all clearly stated that this is a multi-faceted approach to looking at this important issue. The law is one piece of the approach.
We talk about breaking the cycle of trafficking. Where can we enter to address a problem? We have identified that the current human trafficking prohibitions in the law are failing us when the perpetrators are not being justly punished. Something needs to be addressed and this bill specifically addresses where the gaps might be.
I am curious about something. As a former teacher, I look at the terrible issue of bullying and the phenomenon of the bully who was a victim of bullying, which does not lessen the gravity of bullying. It is unfortunate that these victims become perpetrators. You said that each situation is unique but those who are victimized do not change.
I would argue that in cases where the victims become perpetrators, these victims are not career criminals. Perhaps Bill C-268 could become a bit of a deterrent if the laws are clear. That was a statement more than anything. I wonder about that kind of deterrent. This bill looks at other sentencing principles such as denouncement as well.
We are aware that there are many other things that we must do, but this bill fills a gap that we see in the current system.
Senator Demers: I will be brief and go along with what Senator Plett said. Thank you for being here and thank you for your honesty.
You mentioned that there is no one in court because there are no witnesses. We can lock them up for five years, like that young girl who will spend time in jail and then be on the streets. She has no chance. It could be a young girl or a young man or a young child. The victim will know she has a few years to get her life back on track if the criminal is in jail. She could move. If he gets six weeks or six months, he is right back on the streets and she does not have a chance to get her life back on track. If he goes to jail for five years, the victim will have the time to restart her life. It will give her an opportunity to move on to better things. She will testify if she knows the perpetrator will get five years. That is just an opinion.
Right now, that young girl knows that the bum, excuse the expression, will be back on the street within a week or two weeks or six months. She does not have the time or the money to relocate. Does that make sense?
[Translation]
Ms. Pollaert: On the question of proof, the fact that the perpetrator will not be incarcerated for five years is not the issue. In our justice system, a person is innocent until proven guilty, which means that a great deal of evidence has to be presented to prove a case of trafficking. As Professor Perrin stated with his usual eloquence, it is very difficult to prove a case of trafficking.
Judging from the victims we work with, if they are reluctant to file a complaint or to go to court, it is usually because they know that proof will be required and that there will be lengthy legal proceedings. You know better than I do that in the end, justice is not always served. That is generally how it is in a democracy. The lack of cases before the courts has nothing to do with the fact there is no minimum sentence.
[English]
Senator Eaton: Thank you. Your points are subtle and very interesting.
Ms. Smith brought forward Bill C-268. I am sure you are all aware that section 212(2.1) of the Criminal Code specifically relates to the financial gain or benefit from underage prostitution. In a court of law, you must prove someone has been living off the avails of trafficking or prostitution. Bill C-268 does not carry this burden of proof and focuses on the method of trafficking and exploitation that occurs. That could be both labour and sexual.
Perhaps you may see, Ms. Pollaert, that if Bill C-268 becomes law, it will be easier for courts to charge and sentence people because there is no financial burden of proof in the bill.
The Chair: Any further comment?
That brings us to the end of this part of the session. Thank you to both witnesses for being here and for your work with the International Bureau for Children's Rights.
Honourable senators, I want to mention one thing before going to clause-by-clause consideration of Bill C-268. From time to time, members ask me about supplementary questions. I talked to the steering committee about this. We came to the conclusion that it is very difficult, particularly on a tight time frame, to take supplementary questions. It can get out of hand quickly. If we allow one question, there may be others. I believe that the best way for us to operate is not to permit supplementary questions, unless we have a lot of time, and to put people down for a second round of questions.
Let us proceed to Bill C-268. Senator Dyck is planning an amendment that is being passed around dealing with clause 2. For those senators that are new to this method, it may sound archaic at times, but there is specific language that I will use that is traditional. I will go slowly so we do not pass anything that anyone wants to discuss.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 2 carry?
Senator Dyck: I move:
That Bill C-268 be amended in clause 2, on page 1, by replacing lines 22 to 25 with the following:
``of six years if
(i) the person kidnaps, commits an aggravated assault or aggravated sexual assault against, or causes death to, the victim during the commission of the offence, or
(ii) the exploitation involves the provision by the victim of a sexual service for which the person receives, or expects to receive, a financial or other material benefit; or''.
The Chair: Is there any discussion about the amendment?
Senator Dyck: Would you like me to put forth an explanation?
Some Hon. Senators: Yes.
Senator Dyck: Number (i) is really not a change. It only changes ``they'' to ``the person'' to make a clear distinction between the trafficker and the victim. Number (ii) inserts the idea that the trafficker has exploited the victim in a sexual service for which the traffickers obtains financial gain. It will give the trafficker a six-year penalty instead of the five- year penalty.
Senator Eaton: Is that not covered in living off the avails of prostitution?
Senator Dyck: Yes, but that is not covered under this offence.
Senator Eaton: They can be charged under section 212 of the Criminal Code.
Senator Dyck: Yes.
The Chair: Any other discussion about the amendment?
Senator Martin: I have a question to the committee and maybe to Senator Dyck who is proposing this amendment. By inserting in (ii) ``victim of a sexual service for which the person receives, or expects to receive, a financial or other material benefit,'' does that, in any way, make it more difficult for the Crown to get a conviction? Did we not hear that trying to get a conviction to prove there was a financial gain is challenging?
Senator Dyck: Ms. Smith indicated that, but a lawyer — I forget which lawyer — said later they did not think it was so. It would depend on the specifics of the particular case. You could not make that generalized statement.
Senator Martin: I only wonder if this amendment is more limiting.
Senator Dyck: If a person were trafficking a minor for the specific purpose of putting that minor into the sex trade, the offender would receive six years instead of five years. That is the intent of the amendment. If the offender is trafficking and putting that minor on the street for sexual exploitation, the offender will get six years, not five.
Senator Martin: The bill is concise and specific. What would adding something to it do to the effectiveness of it? I am not a lawyer; I cannot comment on this specific change.
The Chair: I am taking questions for Senator Dyck. Then I will go speakers. Do you have further questions for Senator Dyck?
Senator Martin: Which lawyer did you consult on this issue?
Senator Dyck: I consulted with Janice Tokar and Mark Audcent, Law Clerk and Parliamentary Counsel in the Senate of Canada.
Senator Martin: What did they say about it?
Senator Dyck: They drafted the amendment. We talked about it and they said this would fit according to what they know with respect to criminal law.
The Chair: They give you the legal wording. They do not give you the policy decision. That is a matter for the committee. The legal people are not saying that this is fine to do. Rather, they are saying how to word it if we want to do this.
Senator Martin: I am still concerned.
Senator Ogilvie: I want to make it clear that I will vote against this amendment. Number (i) is unnecessary and number (ii) is an issue that changes the nature of the bill and introduces a risk that we should not take at this stage. This bill is necessary in Canada, and I am opposed to the amendment, as it would delay the opportunity to deal with these horrendous and heinous crimes as soon as possible.
The Chair: It is worth knowing that any amendment to this bill goes to the Senate. If the Senate carries any amendment to the bill, then the bill goes back to the House of Commons. Senators should know the process but it does not mean they should not do it.
Senator Champagne: Do not get mad at me. I am just saying that it bothers me. That is all I said, Senator Eggleton. This is not city hall.
Senator Eaton: I reiterate that section 212 of the Criminal Code covers Senator Dyck's victim of sexual service, financial gain. That is the difference between this bill and section 212 of the Criminal Code, living on the avails of prostitution, which we already have on the books.
The Chair: Shall I put the vote? Should the amendment proposed by Senator Dyck carry? Those in favour? Those opposed?
Some Hon. Senators: No.
The Chair: The amendment is defeated.
Shall clause 2 of the bill carry?
Hon. Senators: Agreed.
The Chair: Carried. Stop me if you want any other amendments.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: I call it on division. Do you want to do more than that?
Senator Cordy: I am talking about observations.
The Chair: I will come to that. The bill carried, on division.
Does the committee wish to consider appending observations to the report?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: Senator Cordy, do you want to make your case quickly?
Senator Cordy: I do not have anything formalized because I just jotted it down when we heard the witnesses today.
We heard that the RCMP has a human trafficking division, but they do not have any investigative ability because of a lack of resources. It does not give me great hope that this bill will accomplish anything if there are no resources to find the people who are committing the crime of trafficking people under the age of 18.
My observation is that the RCMP trafficking division has no investigative ability because of a lack of resources. The RCMP should be given the resources to prevent and apprehend those trafficking persons under the age of 18.
If they do not have the resources, we can have 5,000 bills on the books but they will not do any good. We heard one witness today say that 1 per cent of traffickers is found guilty and prosecuted. If we have even 20 per cent prosecuted, what is the point of having bills that our national police force cannot enforce because of a lack of resources? We all believe that people should be brought to trial, but you cannot enact legislation without having the resources to enforce the law.
We heard that the border services agents are not trained for this purpose. They should be trained to have the ability to recognize traffickers of persons under the age of 18 at border points.
I would like to include those items in observations.
The Chair: Are there other proposals for observations before we have our discussion?
Senator Dyck: One of the witnesses said that the imposition of minimum mandatory sentences might have the unintended consequence of fewer guilty pleas. The trafficker would have to go to trial and the victim would have to testify. For those cases where the victim is young, that essentially amounts to re-victimizing them. The requirement to testify places the victim in a position of reliving the trauma.
The Chair: Do you want to put that as an observation?
Senator Dyck: Yes.
The Chair: I will put all the proposed observations on the floor. Are there other proposed observations? I have Senator Plett, Senator Champagne and Senator Martin.
Senator Plett: I have a few comments about Senator Cordy's observations. First, I do not think that we should give any credence to the 1 per cent statistic. The person admitted that he pretty much pulled the 1 per cent out of the air and had absolutely no support for it. He said if we have 600 people, it is about 1 per cent and if we have 8,000 people, it is less than 1 per cent. He gave us a number that is on the record that we have absolutely no backing on at all. We should not give that any consideration.
I did not hear the RCMP say that they did not have the resources. The prosecutor said that he does not have the resources. The RCMP is entirely in favour of this bill. Both of them sat there and said that. They never mentioned a lack of resources. Certainly, we cannot have an observation saying that the RCMP said they had a lack of resources because they certainly did not.
Senator Cordy: Could we have the second part that they should be given the resources?
Senator Plett: I am of the opinion that observations deal strictly with hypothetical situations. We have a bill here that we have passed. We are creating hypotheses on what may or may not be the case. I simply think it is a waste of time. I think we need to bring this bill to the Senate and get it voted on as quickly as possible. I oppose any observations.
Senator Champagne: Senator Dyck, I just want to mention that we were told that when young people have to appear court, all kinds of things are done to protect them. It may be a video conference in another room so they do not have to face their aggressor and so on. That is already within the law, not this one but the other one would apply.
I can understand your concern, but if it is to be looked after, I do not see why we need to add it to the bill. It would be automatic if the victim is less than 18 years if age, obviously, unless takes two years or three years before it comes to court. That victim would be protected. I do not think we need to put it into an observation.
Senator Martin: In spirit, I agree with what Senator Cordy is saying. Of course, everyone needs more resources to do the job, but we did not hear the RCMP say that they lack resources and are unable to do their job. The Human Trafficking Centre is not mandated to do the investigation but other RCMP departments conduct such investigations. Professor Perrin said that there are many police forces across the country doing that as well.
In addition, we did not hear the victims say that they are feeling re-victimized. We heard from advocacy groups. In terms of what the victims may feel, I do not think we should have any observations from groups that we did not hear from directly. It may or may not be true, but we have passed the bill and we should focus on its merit. That is my position.
Senator Eaton: It is called hearsay.
The Chair: I have a proposed two-part amendment from Senator Cordy. I also have a proposed amendment from Senator Dyck. Do you want me to put the questions?
If we do observations, they would go to the staff for proper wording and form that reflects the testimony heard here today.
All those in favour of Senator Cordy's proposed observation?
Some Hon. Senators: Yes.
The Chair: Those opposed?
Some Hon. Senators: No.
The Chair: That observation loses.
All in favour of Senator Dyck's proposed observation?
Some Hon. Senators: Yes.
The Chair: All opposed?
Some Hon. Senators: No.
The Chair: That loses. Is it agreed that I report the bill to the Senate?
Hon. Senators: Agreed.
The Chair: I shall report the bill to the Senate.
(The committee adjourned.)