Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 26, Evidence - February 19, 2015
OTTAWA, Thursday, February 19, 2015
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons), met this day at 10:30 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Welcome colleagues, invited guests, members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we begin our deliberations on Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons). The bill proposes to provide consecutive sentences for offences related to trafficking in persons and create a presumption regarding the exploitation of one person by another. The bill would also add the offence of trafficking in persons to the list of offences to which the forfeiture of proceeds of crime apply.
Bill C-452 was originally introduced in the House of Commons in October of 2012 by Maria Mourani, MP for Ahuntsic in the province of Quebec. The bill was reinstated by the house at the start of the current session, and this is our first meeting on the legislation.
As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate Committees."
For our first panel today we welcome the sponsor of the bill, Maria Mourani, Member of Parliament for Ahuntsic.
Ms. Mourani, the floor is yours.
[Translation]
Maria Mourani, Member of Parliament for Ahuntsic, sponsor of the bill: First of all, I want to thank all of you for this invitation. I am very happy that the committee is beginning discussions on this bill, which is highly anticipated, of course, by people in the field, whether police officers or victims' groups. The bill was developed together with them; there was a study carried out in the field which lasted approximately a year and a half, and as you mentioned earlier, a bill had been tabled once before. Because of elections, the bill died on the Order Paper and was tabled again a few years ago. Now it has come before you today.
I want to discuss the three most important points in the bill, given the time I have for my presentation. I am going to attempt to be quite succinct and brief.
The first point is that of the presumption, also commonly known as reversing the burden of proof, which is a very important element in this bill, highly anticipated by police officers and of course by victims' groups. Currently the Criminal Code is drafted in such a way that the burden of proof, as it relates to the provision on human trafficking, rests essentially with the victims. Without their testimony it is extremely difficult to prosecute a trafficker. It can be done and there have been several cases, but it is difficult. It has to be said that the victims of human trafficking are not persons who would normally testify or lay charges, since in the vast majority of cases they are people who have been through hell, and have either been raped repeatedly, tortured, threatened with death or been the victims of attempted murder. The trafficking in persons offense is always accompanied by enormous violence. It is not a crime that is easy to bear for those who are its victims.
And so the victims do not want to testify. It is also extremely difficult for police officers to convince victims to testify. This presumption however is not a blank cheque being given to the police, because they still have to prove the wrongdoing beyond a reasonable doubt. The important aspect of reversing the burden of proof is that it will allow the investigation to go forward even if a victim does not want to testify.
A few years ago I asked the Quebec Bar — and I hope you have the document in question — to provide its opinion on this bill, the initial version of the bill, of course, with all of the provisions. The Bar addressed the issue of presumption in its October 23, 2013 letter, which is still quite a recent opinion. What the Quebec Bar stated, by and large — and I invite you to read the entire letter — is that the bill would be in compliance with the Supreme Court statements in the Downey decision. In brief, in that judgment, the Supreme Court referred to the provision on procuring, which we know no longer exists in the Criminal Code because of the new prostitution legislation introduced last December 6.
The Supreme Court concluded that reversing the burden of proof regarding those who live off the avails of prostitution, even if it infringes the presumption of innocence, constitutes a reasonable limit on that constitutional right, given the power dynamic that exists between the offender and the victim, and thus the validity of that person's consent to take part in various sexual acts. The Supreme Court also emphasized that although a victim's testimony is usually the only way to obtain the evidence necessary to convict a person suspected of procuring, victims of course refuse to testify out of fear of violence from their pimps.
The Quebec Bar concluded that the provision in Bill C-452 is a reasonable application of the Supreme Court judgment regarding procuring at that time.
The other important aspect of the bill concerns consecutive sentences. Consecutive sentences have two advantages: sentences can be imposed for each offence committed, while preserving the independence and discretion of judges as to the overall determination of the sentence.
The Criminal Code already provides for consecutive sentences for certain offences relating to the use of firearms, terrorism offences, and the production and possession of explosive substances. I invite you to read the document entitled De la détermination de la peine — principes et applications, by François Dadour, 2007. In chapter 1, on pages 19 and 20, Mr. Dadour provides a very good explanation of the principle of totality in sentencing, which is a logical consequence of the principle of proportionality. So the judge must deal with the overall fairness of the sentence, even when handing down consecutive sentences. In that chapter, the author refers to the Supreme Court decisions in the C.A.M. and Paul cases. Everyone agrees that the principle of totality allows the judge to maintain the proportionality of the sentence, and this makes it obvious that the judge maintains his or her autonomy for the determination of the overall sentence. However, for the victims, the consecutive sentence is fundamental. A victim cannot understand why her aggressor, who is charged and found guilty of several major offences, does not receive a sentence that takes into account all of the sentences handed down, because in the case of a concurrent sentence, only the longest sentence applies. Victims experience this as a profound injustice, all the more so since they have had to testify, face their aggressors, show great courage, and then see that even though the person may have been found guilty of attempted murder, aggravated assault, sexual assault and trafficking in persons, the judge only imposes the longest sentence. That is incomprehensible for victims. No matter how we explain it, they will never understand why the aggressor in question does not receive the sentence he deserves.
Thus, severe sentences will be meted out for serious offences, but the independence of judges will be preserved nevertheless.
The other point which is to my way of thinking very important for society — because it will prevent human trafficking from being a profitable activity — is the forfeiture of the proceeds of crime. I invite you to read the 2008 Criminal Intelligence Service of Canada brief entitled Organized Crime and Domestic Trafficking in Persons in Canada. The report states that on average one trafficker can make $280,000 a year with one girl, depending on her youth and beauty.
So, do the math. It there are 20 girls, we are talking about $6.552 million a year. If there are 40, it goes to $13 million a year. Trafficking in persons is a highly lucrative crime, we know that now. After drug trafficking, human trafficking has become the second most important activity for organized crime.
Trafficking in persons entails few expenses. You do not have to buy drugs, or smuggle them; all you have to do is torture, rape, and beat someone — what is known as training — training a woman, a girl or a child so that she does anything you want her to do. She will make her own appointments and turn over 100 per cent of the money she makes to you.
Trafficking in persons is profitable, because if you arrest the offender, the victim will not testify against him. In addition, if you manage to prove the charges, if you manage to convince her to testify against the offender if charges are laid and he is convicted, the sentence he will get will never be proportional to all of the money he has made.
So it is essential that trafficking in persons be included in the provision that allows for the forfeiture of the proceeds of the crimes of these individuals, and by that very fact —
[English]
The Chair: I'm going to have to interrupt you. I've been trying to give you adequate time. Can you wrap up, please?
[Translation]
Ms. Mourani: I will conclude by saying that forfeiture of the proceeds of crime already exists in the Criminal Code for certain drug-related offences and criminal organization offences that carry sentences of five years and more. I thank you for your attention and I am available to answer all of your questions.
[English]
The Chair: We will begin questions with the deputy chair, Senator Baker.
Senator Baker: Congratulations to the witness, who began her struggle to introduce similar legislation way back in 2010 or 2011 and now it is almost at its completion. I must point out, though, that we have changed the provisions that we're talking about, namely, trafficking in persons, many times over the years. One of the changes we made in 2006 was that a person need not appear to face the accused. In other words, the victim need not appear under these provisions anymore to face the person accused of the offence in court. That was adjudicated by the Supreme Court of Canada in 2010 for its constitutionality, so they don't have to appear before the person that is accused.
Next, regarding the first clause of your bill, you mentioned that the section concerning bawdy houses and the presumption was struck down by the Supreme Court of Canada in Bedford, and that's correct. You said, though, that they no longer exist in the Criminal Code. That's not correct. Under the government's new legislation replacing the Bedford provisions, the presumption now is in section 286.2 of the Criminal Code, in practically the exact same wording as you have introduced in your bill.
I will get to my question now. On consecutive sentences, the provision is not new; there are consecutive sentences in the gun, terrorism and criminal organization sections of the Criminal Code — consecutive sentences for the same delict, as we call it, the same offence. In each of those instances, they were tested in the courts for their constitutionality because it offends what is commonly referred to as the Kienapple principle, whereby you cannot be convicted of the same offence — the same delict — twice. In each of those instances, the court has maintained that because it was an indictable offence and because other matters were involved that were very serious, it was constitutionally okay.
Have you sought an opinion as to the legality of the consecutive sentencing provision in this bill?
[Translation]
Ms. Mourani: Thank you for your many questions. First of all, regarding the constitutionality of consecutive sentences, I am trying to understand what you mean when you say that a person cannot be convicted twice for the same offence. There is no dual conviction involved in consecutive sentences.
With consecutive sentences, a sentence is handed down for each offence an individual is convicted of in the same case. Normally, in the vast majority of cases, the judge will then impose the longest sentence and determine, for instance, that an individual is sentenced to two or three years for trafficking in persons, attempted murder, and so on. The constitutionality of consecutive sentences has been proven. What we say is that a sentence must not be cruel; it must be proportional. That is when the judge can intervene, as opposed, for instance, to minimum sentences where the judge has no choice. What is difficult in the case of a minimum sentence is that the judge cannot take the totality into account. In consecutive sentencing, you get a "two for one" situation. A judge may impose a sentence and consider it important that it be severe, given the nature of the crime, while having the latitude to decide on its order of magnitude.
I will give you a very concrete example. In the case of a trafficker who was charged with trafficking in persons and convicted, and also convicted of attempted murder and sexual assault, let us suppose that the judge wants to hand down an exemplary sentence of eight to nine years; he has only to apply the totality of the sentence and apply it to each offence. Thus, his autonomy is preserved and this is not a double conviction. As you say, the principle according to which an individual cannot be convicted several times for the same offence is not the same thing as the case of an individual who has been convicted once and whom we want to see convicted a second time for an identical offence. These things are absolutely unrelated, in my opinion.
Senator Boisvenu: First of all, I want to congratulate you, Ms. Mourani, for your patience. Taking a private member's bill of this type all the way to the Senate and, we hope, to its adoption in a few months, requires a lot of conviction, and I want to congratulate you. It is an honour to sponsor this bill and to further its speedy passage. I would like to discuss denunciation. I said this in my speech at second reading: a few years ago, I was speaking with stakeholders from Montreal's South Shore, and they gave me some statistics that I found absolutely astonishing. There were 200 young girls of 12 or 13 who were engaging in prostitution to pay off drug debts.
How will this bill change things to make it easier for children — because in the case of children of 12 or 13, we are talking about preadolescents — young girls, to denounce their aggressors? We know that in Canada the rate of reporting for sexual assaults is extremely low. Once case out of ten is reported and in some cases, it is even lower. How will this bill facilitate denunciation, which is key if charges are to be laid and proceedings brought?
Ms. Mourani: Thank you very much for supporting this bill. I was always told that you were the best of sponsors. You are tough, as they say.
What is important in this bill is the presumption clause, because it means that denunciation will not be obligatory. Typically, in these networks, there is not just one girl, but two, three, four, five or ten girls. If out of two or three girls only one agrees to denounce the abuser, thanks to this provision police officers will be able to lay charges on behalf of all the other girls. They will not need the testimony of the other girls to be able to charge the abuser; they will need just the one testimony. Already, this removes one burden from the victims' shoulders.
Even if the person does not want to testify or denounce the aggressor, if the police — as they normally do — do their work well and manage to prove the offence beyond any reasonable doubt, they will be able to lay charges without needing testimony from a victim. I think that denunciation is at the heart of this fight against human trafficking. As you said so well, the rate of reporting is extremely low.
In fact, Mr. Monchamp will be appearing before the committee, and he will explain this better than I have. Close to 80 per cent of victims will not speak out against the abusers. That is a very high percentage. However, in order to be able to lay charges for this type of offence, denunciation is at the heart of any proceedings. Some people I meet in the field tell me that this is often the type of crime where there are a lot of victims, but silence reigns, the silence of terror.
That is why this provision is so important, all the more so since the victims — sometimes it is difficult to imagine, because one cannot believe that — now, with the Internet, I have to say that nothing surprises me anymore — it is difficult to imagine that individuals can maintain such a climate of terror, to the point where the victims will later have severe post-traumatic stress. Sometimes they will tell police that they agree to testify, but on the day of their appearance, they no longer want to.
You are quite right, this is at the heart of the matter, and this provision will allow victims to choose to testify or not.
Senator Joyal: Welcome, Ms. Mourani. The issue of human trafficking is such an odious problem in a society; it shakes and undermines all of the values of respect for human dignity. You should be very proud of the work you have done.
However, the bill you are sponsoring raises an important legal issue. You referred to the letter from the Quebec Bar, but there is also a letter from the Canadian Bar Association. I imagine you had a chance to read it?
Ms. Mourani: No, I have not read it.
Senator Joyal: In the file, there is a letter from the Canadian Bar Association dated December 8, 2014.
Ms. Mourani: No, I do not have that letter.
Senator Joyal: I expect we will be able to give you a copy. Essentially, the Canadian Bar Association raises doubts as to the constitutionality of the presumption of guilt the bill contains in its first clause. The provision is so broadly worded that it could apply to persons who, in practice, are not the exploiters, but happen to be in the presence of the exploited person.
As a result, the presumption is so broad that it raises doubts about its constitutionality in connection with paragraph 11(d) of the Canadian Charter of Rights and Freedoms. Earlier, Senator Baker gave me the letter from the Barreau du Québec, which is based on an interpretation of the procuring section in the Criminal Code. In your analysis of section 1, did you consider that the text, as you are proposing it, casts a wide net that also includes those who are habitually in the company of the exploited person, but who are not exploiters and might end up being charged with the most serious offence in the code, as I said earlier, although they are completely innocent?
A presumption of guilt is created for innocent people. Have you been able to think about the interpretation? Once a person is charged, the text overrides everything else. The judge, the police force or the crown prosecutor whose determination relies on the text will clearly stick to the words in the legislation. What do you have to say to this argument from the Canadian Bar Association?
Ms. Mourani: Thank you for that question. That will allow me to shed light on the process that led to the drafting of this text. First, it was very difficult, and a lot of thought went into writing it and into figuring out how to present it. It was drafted while the procuring provision was still in force. We know that it no longer exists. So the text is fully modelled after this procuring provision, because I knew — and I also received advice from jurists about this — that the procuring provision had already been tested by the Supreme Court, and the Supreme Court came to the conclusion set out in the letter from the Barreau du Québec. The Court found that, although this is an infringement, it is a reasonable measure, given the relationship between the pimp and the victim. Assuming that this procuring provision had passed the test of constitutionality, we drafted the text with the spirit of this provision in mind. The procuring provision used to focus on those living on the avails of prostitution. That is the same principle as living from exploiting others.
However, what I can tell you is that, when it comes to actually applying this on the ground — and I see what you are getting at with, say, a grandmother or a husband who lives with an exploited person — the same is true for procuring with the same issues at stake. Is the person in court because they live off the victim's involvement in prostitution, since the victim is the one paying the rent and the food in the house?
In practice, on the ground, I have never seen a grandfather or husband — and all the police officers can confirm that — arrested and brought into court, because they were living off the avails of someone's involvement in prostitution. I have had a lot of discussions with police officers on the ground about how the section on procuring is enforced, and that's certainly when the discretion of police officers and prosecutors comes into play.
My premise is that these people are experienced and know that, when they see a grandmother and a prostitute, they will not arrest the grandmother. She is not the pimp. They will know who the pimp is in that whole situation.
[English]
The Chair: Ms. Mourani, I'm going to have to cut you off again. I understand your enthusiasm, but can you try to be more concise with your responses? We have a number of senators left and only 15 minutes remaining.
[Translation]
Senator McIntyre: Thank you for your presentation, Ms. Mourani. I see that your bill has a lot of support.
The strength of the bill definitely lies in the presumption, the consecutive sentences and the forfeiture of proceeds of crime. I think it is important to have a specific provision on sexual exploitation. That is the section on offering or providing labour for a service, and I think this definition is important simply because it addresses any potential situation. This addition clarifies the situation and all the implications of the term "exploitation."
As you know, in May 2002, Canada ratified the Palermo Protocol on Human Trafficking and Transnational Crime. Is it safe to say then that the definition of sexual exploitation in your bill is basically modelled on that protocol?
Ms. Mourani: I would say so. I have worked a great deal, not only with police officers, people on the ground and women's groups, but also with the Palermo protocol. The bill is not the only legislative tool enabling Canada to keep its word under the Palermo protocol, but we have definitely drafted our bill with the Palermo protocol in mind, thereby allowing us to deliver on our international commitments.
[English]
Senator Batters: Thank you very much for being here today. We've just received a copy in French of the opinion that you received from the Quebec bar association. I'm sure you only have it in the French version, but I'm wondering from the clerk if it's possible to get that translated so that we can contrast that particular opinion, which indicates that this bill is constitutional, with the opinion previously received from the Canadian Bar Association, which has a contrary view.
I think we'll have a witness appearing later today who expresses a similar view to that of the Canadian Bar Association. It would be helpful if we could have that, and the clerk indicates it will be provided, so that's great.
Ms. Mourani, I have a brief question. If you could answer briefly, I then have a more substantive question.
I took a peek at your biography. You've been an MP for a number of years now, since 2006, but pre-politics you had an interesting biography that contains some elements that are very relevant to why you're probably bringing this particular bill forward. Could you briefly outline that for us?
[Translation]
Ms. Mourani: Thank you for your question. I sort of consider myself a criminologist who is in politics. You are correct, before I became an MP — and also during my term — I was on the ground. I was dealing with street gangs, an issue that interests me and concerns me a great deal; child prostitution, which I feel is a fundamental issue; and human trafficking. That's it in a nutshell.
Canada is one of the countries where young people are recruited for prostitution; we are a transit country to the U.S., a transit recruiting country, where there is far more domestic trafficking than international trafficking. In my daily life as a criminologist, I was able to see the tragedy through the victims, who have sometimes been caught in these networks since they were 11 or 12 years old.
The criminal intelligence service says that the average age of entry into prostitution is 14, but I have actually seen it on the ground.
[English]
Senator Batters: Thank you very much for bringing up that particular point. I also appreciate your support of Bill C-36, which our government recently brought into force, our government's response to the Bedford decision of the Supreme Court of Canada with regard to prostitution. I was the sponsor of the bill in the Senate, so it's one I know well. Again, I thank you for your support of that legislation. The example of a typical prostitute in Canada being the age of 14 was one that I often used during those prostitution meetings.
Conservative MP Joy Smith has done a lot of work regarding human trafficking, and I understand you were very supportive of her private member's legislation in this area. Could you tell this committee how your proposal today fits with those other initiatives regarding sexual exploitation and human trafficking, if there is any overlap, and how they are different? Could you try to be concise, because we have limited time?
[Translation]
Ms. Mourani: I would say that the first draft of my bill was much more substantial than the current version, because, along the way, some provisions were supported by Ms. Smith.
The extraterritoriality clause was in the first draft of the bill, stating that, when an individual commits an offence abroad, it will be the same as though it was committed here, in Canada. That was an important point for me.
The items in this bill are in no way competing with any other legislation or the provisions of Bill C-36, because the latter deals with prostitution in general. The clauses in this bill deal directly with human trafficking.
So this bill will improve the Criminal Code and make it possible to provide actual tools for the work being done on the ground, for the people working on the ground to enforce the law, but also to help the victims.
[English]
Senator McInnis: Thank you for coming. It's a wonderful piece of legislation, but I have some concerns.
I always admire the flexibility of lawyers in bar societies. This letter is in French, but you've said that the Quebec bar society — I presume the criminal section of the Quebec bar — said this with respect to consecutive sentences and reverse onus, and it would withstand any Charter challenge. It will be interesting. This morning we have the Criminal Lawyers' Association, who I'm sure will speak quite a bit about this business of presumption of innocence.
It seems so simple. A person who is not exploited lives with a person who is exploited is proof of exploitation. That's a simple way of putting it, unless the accused can prove otherwise. What brought this amendment about? Are there so many exploiters out there that law enforcement couldn't collect the evidence, or is it purely based on the fact that the victim didn't want to testify? The victim can, as Senator Baker pointed out — it happens all the time — be behind one- way panes so they cannot be seen. What is it that actually brought this about?
[Translation]
Ms. Mourani: Okay. First, it is important to understand that with or without the one-way mirror, victims don't want to testify. If we could tell victims that they would leave Montreal, for instance, if they agreed to testify, and that their trafficker would never find them, they might testify. We cannot promise them a change of identity to testify. So, the fact that they testify, whether behind one-way panes or not, makes their testimony proof for the trafficker, the pimp, because he knows who is testifying against him.
The victims know full well that, if the trafficker goes to prison, his associate, the person who works with him, will find them wherever they are. Is that true? Are they simply imagining it? Perhaps, but the fear to testify is very subjective. These victims were tortured, raped — sometimes by 10 or 15 men at a time — burnt with cigarettes, had their pieces of identification stolen, their families threatened, and were told, "If you don't do what we tell you, we will go after your little eight-year old sister."
These women live in terrible fear. They refuse to testify, regardless of what measures we propose — and we must admit that there are not a lot of measures. Being in front of a camera and not being seen by the aggressor can help, I am not saying it can't, but at the end of the day, if the victim does not want to testify out of fear or because of the psychological trauma she has experienced, she will not testify, even if this is done in another room, with a camera, or behind a one-way mirror.
This provision is unique because it allows police officers to present proof beyond a reasonable doubt, without actually needing the testimony of the victim. It also allows them, if there are three, four or five victims, to use the testimony of the strongest victim, who is able to overcome the trauma, and charge the offender on behalf of the other victims.
That is fundamental. However, police officers don't have a blank cheque, because they still have to present the evidence. Just remember that the first piece of legislation on human trafficking was passed around 1994, if memory serves. Until 2000, there had not been even five cases of human trafficking in all of Canada, and the sentences were light, because it was extremely difficult to gather the evidence.
Senator Dagenais: Thank you, Ms. Mourani. Thank you for your kind words about police officers because, since I was a police officer for 39 years with the Sûreté du Québec, it feels wonderful to hear your comments.
I want to talk about denunciation. Often, these people arrive in Canada and we know that there are traffickers who do tricks. The young girls may come to Canada illegally. Some of them even worked as household servants and were not even paid.
Do they not want to speak out because, when they do, their identity will be revealed and they could be sent back to their countries? Do you think that has something to do with it?
Ms. Mourani: Yes. Now you are talking about international trafficking. Yes, people come here under false pretenses. Quite often, they are told that they will work in restaurants or modelling agencies, for instance. However, when they come here, all their pieces of ID are taken away. Sometimes, the traffickers also have powerful connections in the foreign countries and directly threaten the families there.
You understand that, when this happens, in some countries where human rights are quite abused, the victim is convinced that, if she doesn't do what the traffickers order her to do, her child, whom she left in Romania perhaps or somewhere else, could ultimately be killed, just like that.
Yes, you are right. In those types of cases, people don't want to denounce anyone.
Senator Dagenais: Thank you very much and good luck, Ms. Mourani.
Ms. Mourani: And congratulations on the work of police officers.
[English]
The Chair: Thank you, Ms. Mourani. You're a passionate advocate for your legislation, and we appreciate your being here this morning and providing your testimony.
[Translation]
Ms. Mourani: Thank you, Mr. Chair, for being so kind and letting me be so vocal.
[English]
The Chair: For our second panel, I am pleased to welcome back to the committee, from the Criminal Lawyers' Association, Leo Russomanno, Member and Criminal Defence Counsel; and Anne London-Weinstein, Director, Board of Directors. Good morning.
You may note on our agenda that we were also planning to have a representative from the Montreal Police Service here today. We're advised that they're on their way but apparently highway conditions are horrendous. Hopefully they will be able to join us at some point before we adjourn.
Mr. Russomanno, I understand you are sharing your time with respect to an opening statement.
Leo Russomanno, Member and Criminal Defence Counsel, Criminal Lawyers' Association: I will be speaking for both Ms. London-Weinstein and me for the allotted time we have.
The Chair: The floor is yours, sir.
Mr. Russomanno: Good morning. Thanks again for having us here today to speak about this important bill and this significant subject matter in criminal law.
On behalf of the Criminal Lawyers' Association, I want to express concerns with two aspects of this bill. The first part that I will touch upon is within Ms. London-Weinstein's wheelhouse, so I will let her address your questions with respect to the sentencing.
In keeping with the Criminal Lawyers' Association's position with respect to mandatory consecutive sentences, there is concern about the removal of judicial discretion. When you have mandatory consecutive sentences where there is a potential mandatory minimum of five years where the victim is under the age of 18, we have concerns that this bill will offend the fundamental sentencing principle of totality, and it may lend itself subject to a successful section 12 Charter challenge.
Our position is that imposing a one-size-fits-all approach to sentencing won't do much to advance the goals of sentencing and that there is no evidence that our judges currently do not impose sentences that adequately reflect society's approbation of this type of offence.
I want to turn to the issue of a Charter challenge under 11(d). The committee is familiar with this topic as it has been discussed in the house with respect to the presumption in this bill.
First, I would like to say that the presumption created here is not a minor one. It is a presumption that goes to virtually all of the elements of the offence. It will create a provision that is effectively guilt by association. What that implies is not just a presumption that a person who lives with or habitually associates with an exploited person is exploiting them but also a presumption of mens rea, that that is for the purpose of human trafficking. That raises significant concerns because that is the entirety of the elements of the offence that the Crown would ordinarily be required to prove.
Anyone familiar with the case law on 11(d) — we know the Oakes case, dealing with possession for the purpose of trafficking, and the Downey case, which was mentioned in the house — knows that this is a prima facie violation of 11(d) of the Charter. Really what we're talking about is whether this section would get saved under section 1, the reasonable limits clause. There's really no debate to be had that this violates the presumption of innocence.
Is it saved under section 1? Downey speaks to that issue with respect to the "living on the avails of prostitution" section. The majority would have saved it under section 1. The dissenting judgment of Justice McLachlin, as she then was, was it would not be saved under section 1. I would urge the members of the committee to review the dissenting judgment of now Chief Justice McLachlin. My view is that this dissent would carry the day today, that it is a more compelling argument. It is a more detailed section 1 analysis, primarily on the issue of rational connection.
If you look at Chief Justice McLachlin's analysis under section 1, rational connections, she says that the majority fails to conduct a comprehensive rational connections analysis. What the majority did in that case was to look at external rationality and not internal rationality. External rationality, as she mentions in paragraph 64 to 66 of the Downey judgment, deals with whether or not the effect of the legislation would be connected to the purpose of the legislation itself. Internal rationality relates to whether or not the presumed facts are rationally connected to the actual facts.
One can easily come up with examples, as one did with "living on the avails" in the Bedford case, of individuals who would be caught up within this provision who are not necessarily in a position of exploitation, and they would be effectively required to prove their innocence or have the onus of raising a reasonable doubt, when virtually the entirety of our criminal justice system operates in the exact opposite way.
The concern I have with Downey is that it is a 1992 case that was well before the Bedford case. Bedford struck down "living on the avails" in part because it was overbroad, because it included a whole host of relationships that would be caught up within that provision that were innocent, that were not exploitive. So the application of the Downey case with that provision, as similar as it is to the provision here, raises concerns for the Criminal Lawyers' Association. A whole host of activities that may involve people who are actually trying to help exploited persons may be caught within this provision and effectively presumed guilty, when all they're doing is trying to take a person out of a position of exploitation. It creates guilt by association and would effectively render exploited persons pariahs, because anyone who habitually associates with them would be presumed guilty of exploitation.
I do not think it is an answer to say that we should rely on police discretion or Crown discretion to remedy what is, on its face, a Charter violation. It would not be appropriate, in my submission. There's case law that recognizes the limits of police and Crown discretion. You have a recent Ontario Court of Appeal decision of R. v. Nur involving minimum mandatory sentences for loaded firearms.
I will leave my comments at that and be happy to take any questions you have.
The Chair: We welcome Dominic Monchamp from the Montreal Police Service. He's a detective sergeant.
Mr. Monchamp, do you have an opening statement you would like to make?
[Translation]
Dominic Monchamp, Detective Sergeant, Montreal Police Service (SPVM): Good morning. I already commented on the tools that a bill such as this could give us when I testified at the first reading of the bill.
I heard Mr. Russomanno's comments on the bill and on the reverse onus. As I said, I already made some comments on this during my first appearance, but I would like to go over it very quickly, if you don't mind.
Mr. Russomano is right in saying that the procuring clause of the bill regarding those living on the avails of prostitution was struck off by the Supreme Court. However, the clauses on the control of procuring have remained in force. The reverse onus, which we use in investigations on procuring and which is addressed in this bill, is used in exactly the same context. So it is not used in the context of living on the avails of prostitution, but rather in the context of control where victims are facing psychological or physical pressure, torture and fear; in those cases, victims would not be likely to file a complaint with the police service for those reasons.
That is why the reverse onus was introduced. Those are the circumstances under which this tool would be useful in the bill's clause on human trafficking. We are talking about the same type of control and hold that traffickers have on victims.
I must tell you that the reverse onus would not convict innocent people or those who want to help prostitutes or are caught in human trafficking. That's absolutely not the case.
As I said in my first testimony, this provision seeks to help people who are not able to get out, who are afraid to get out, who are afraid to speak; this means that we can use other types of evidence to fuel the charge against traffickers.
What that means in concrete terms, say, in the case of someone who is habitually found in the company of a prostitute or of an exploited person, if I submitted that to a prosecutor or a judge, the onus would not even be enough to charge that person. We are very far from convicting or charging the person.
Let me give you an example of what a reverse onus could bring about. Let us consider a case in which organizations or individuals are controlling a number of women, a number of victims, and we manage to get one away from that organization. That person makes a statement and explains her situation and what happened. She tells us that she was a victim of human trafficking and that four other victims were with her in the same situation. In addition, because it would still not be enough to lay charges, if our investigation confirms through various means, such as physical surveillance or infiltration, what the first victim reported, we would then be able to lay charges on behalf of those other victims, even though they did not testify.
This has been done in many cases of procuring, cases that were challenged by the defence in court, and these are cases that were upheld for those reasons. It is a group of factors that allows for fuelling the reverse onus. The reverse onus alone is not proof. It isn't something the police can use to charge an innocent person.
There is a distinction I would like to make, which is that it is an essential tool that is used in procuring because the victims are extremely vulnerable. We have to be proactive in this kind of investigation, go and help them, find them. Without these tools, it's extremely difficult.
There are a number of other prevention tools that we can use, because we use a variety of tools. Clearly, I want to note that. This tool cannot be used to charge a person who has not committed the crime. That is the first part of what I wanted to address.
If I may have a few moments, I would like to speak to the part of the bill relating to consecutive sentences. What needs to be understood is that human trafficking and procuring trials are long and arduous. The victims may be called to court to testify up to 15 times, to be interrogated and cross-examined by the defence. The procedures can quite commonly be drawn out over about two years, if not more. Since these are serious crimes, the accused is detained during that time in most of these cases.
Although double time has been abolished, and the individuals are detained preventively, the time counts for time and a half. The accused have done two-thirds of their sentence by the time they are convicted and, at the end of the trial, what that means for the victim — the sentences in these cases are four to five years — is that the accused is released in the weeks following the end of the trial.
[English]
Senator Baker: I have one question that I will ask in a moment, but I want to congratulate the witnesses.
First of all, Mr. Monchamp, I recall recently reading R. v. Alain Jean Pierre. You are recognized by the Quebec court as an expert in this area and have been in this special division in the Montreal police force for 21 years.
Mr. Russomanno is well known, a man quoted in case law every week or so, but my question is to the new witness who hasn't appeared before the committee before.
Ms. London-Weinstein, I quite often read the decisions of the Court of Appeal for Ontario. Mr. Russomanno said you would take those questions. Concerning the consecutive sentences, the courts will be tasked with the Kienapple principle. You know what I'm talking about when I say that.
Anne London-Weinstein, Director, Board of Directors, Criminal Lawyers' Association: Yes, I do.
Senator Baker: I reference this to the mover of the motion. She didn't completely understand. She believed, perhaps, I was talking about 11(h) of the Charter, double jeopardy, but I wasn't.
The Kienapple principle will have to be tested by the courts. We have three provisions in the Criminal Code that I'm aware of where consecutive sentences are mandated: the firearms provision, the terrorism provision, and the criminal organization provision. I will read one sentence from a recent decision of the Ontario Superior Court of Justice, R. v. Evans where these matters were reviewed, compared to the Kienapple rule. The court concluded by saying at paragraph 113:
In each case it is an offence to commit an indictable offence in conjunction with a special aggravating circumstance, for example: while using a firearm, for the benefit of a terrorist group, or for the benefit of a criminal organization.
Do you believe that this will be tested in the years to come in our courts, that it does violate section 12, cruel and unusual punishment, and for what reason would you say that would be a concern of the courts?
Ms. London-Weinstein: It is a legislative attempt to circumvent the Kienapple principle, which can be done in legislative circumstances where it is deemed to be appropriate. However, the point that I wanted to make is it is really the mandatory aspect of it. Judges at present impose consecutive sentences where there are particularly aggravating factors or they want to particularly express retribution, denunciation, or whether there's a need for incapacitation, which are some of the principles of sentencing which proponents of consecutive sentences often talk about.
Our judges are already able to do that. I just don't see the evidence that they're not going to impose sentences which reflect our disgust of these types of offences without the need for making it mandatory. Once you have made it mandatory and tied a judge's hands, there are always going to be factual cases that don't neatly fit.
Say you have a person who is an adult but very young, or they are made part of the offence by virtue of the fact they're a party and not a principal. You don't want to be forced to impose a sentence that's going to be so harsh. It may be proportional to the offence itself, but it also has to be proportional to the culpability of the offender. That's what we're concerned about.
It is really expressing a distrust of our judges and what they're capable of doing. I don't see the evidence, as a criminal lawyer with 16 years' experience, that they're not capable of really imposing very strict sentences where they feel they're warranted.
[Translation]
Senator Boisvenu: Mr. Monchamp, thank you for your testimony. I completely share your point of view.
What concerns me, you know, is the denunciation of victims. I think it is one of the biggest problems in our justice system to see so few victims denounce their attacker. The younger they are, the less they speak out. These are burdens that they carry throughout their life.
In terms of white women, trafficking doesn't target 35- to 40-year-old women; it targets 12-, 13- or 14-year-old girls. It is terrible, and I think we need to have very strict laws about this.
What troubles us as legislators is the ability to equip police with the best possible tools so that they can do their job while respecting the Charter. What interests me about you, as a serving police officer, is knowing how this bill will make your job easier and how it will make denunciation easier for victims.
Mr. Monchamp: There are two things. First, as I said, it's the reverse onus. What helps us is reaching victims that would not come to us.
Once again, I'll bring this back to the field and provide you with some examples of actual cases of procuring that we handled using this tool. Using varied investigation techniques, we managed to amass enough evidence and charge an individual with procuring. That individual will be detained and, during the detention period, what's important to understand is that the hold the individual has over the victim can be broken at that time. That is when the victim can be directed to resources to get psychological help and housing, and get some real help.
That is when victims have been able to report. It's a breath of fresh air for them, which is what they needed to be able to report.
Senator Boisvenu: How will this bill take you even further in terms of —
Mr. Monchamp: The reverse onus doesn't exist with human trafficking. Human trafficking is for the more serious cases. Procuring concerns non-violent cases. You can accuse someone of living off the avails of prostitution or exercising control, that's something where we can be more flexible. Human trafficking takes it up a notch. It's basically slavery.
What we are seeing are true cases of slavery. Girls are tortured, raped, confined and forced into prostitution. I talk about prostitution because it's what I am more familiar with.
When we're talking about human trafficking, that's what we're addressing. It's all the more difficult, and I'm not even telling you about international cases where there are the language and culture barriers. These are the tools that do not currently exist for human trafficking, that work and that we could use.
It is also important to know that what the victims want most of all is to be safe when they denounce an aggressor. There aren't that many ways to do it. They are safe when the individual is behind bars. However, if the individual is released at the end of the legal proceedings, it basically sends a strange message to future victims who want to speak out.
Senator Joyal: Thank you, Mr. Monchamp, Mr. Russomanno and Ms. London-Weinstein.
[English]
There is still an element that has not, in my opinion, been explained at length, which is the presumption and the uncertainty that still exists in relation to the decision of the Supreme Court in Bedford. As you know, in the Bedford decision, the Supreme Court struck down sections of the Criminal Code in relation to proxénétisme, which certainly Detective Monchamp knows well professionally. Detective Monchamp mentioned that the presumption as labelled in the proposed legislation would not be sufficient to lead a judge to find a person guilty. Would this in a way help to save the presumption — I'm being the devil's advocate to Mr. Russomanno — in the context that there is not the slightest chance of a person being found guilty by the mere fact that she meets regularly, for all kinds of reasons, with the person who is the object of the person being trafficked? That could be an element to save the presumption against section 11(d) of the Charter.
I am not sure that the decision in Bedford has totally excluded the presumption. If the presumption is part of a series of proofs, then I think that the intended mens rea that you alluded to in your presentation would be rebutted by other facts being proven in front of the court. Don't you think there is a way to maintain the constitutionality of the presumption?
Mr. Russomanno: My interpretation of the provision comes from the words of the section itself. There would be a way to prove or raise a reasonable doubt, but that would be by forcing the onus, evidentiary burden, on the defence, which is in effect a violation of the presumption of innocence.
The wording of the bill, subclause 2(3), is that it's "proof that the person exercises control, direction or influence over the movements . . ." — so that's the actus reus — and then "for the purpose of exploiting them or facilitating their exploitation." That's the mens rea. That's the complete sentence.
By not rebutting that presumption, once the Crown establishes that a person — and it's not only "lives with" but "habitually in the company of a person." Just think of all the people that may habitually be in the company of someone who happens to be an exploited person who would be caught under this clause. With that small amount of proof of that habitual association, you have an automatic presumption of actus reus and mens rea. So really what this comes down to is the section 1 analysis, as I said, and in my view it's particularly tenuous on internal rationality, for the reasons that Justice McLachlin, as she then was, very articulately said in the case of Downey in her dissent.
The other lesson from Bedford is not only the pitfalls of the "living off the avails" provision, which was analyzed in Downey — which didn't occur to the court at that time; they weren't faced with it — but the other important part of Bedford is that cases can be reconsidered. The stare decisis principle of precedent can be used to reconsider cases, and I think Downey, given all these factors, would be ripe for reconsideration. Justice McLachlin as she then was, her dissent, as with the case of Carter that we recently became aware of, may very well become the majority. I firmly believe that her legal analysis of Downey in her dissent is sound and that her argument that the majority failed to consider internal rationality is a solid and compelling point.
[Translation]
Senator Joyal: Detective Sergeant Monchamp, in performing your duties, what other aspects do you use as evidence on the basis of presumption related to procuring, as it existed in the Criminal Code prior to Bedford?
Mr. Monchamp: First of all, the only thing we are unable to confirm is exploitation because it takes place in conversation, in what really happens, in what is not visible.
For the rest, we can use physical surveillance and infiltration by double agents with the victims and with the traffickers who recruit double agents, to prove the intention and method used to recruit. We are able to explain how they are going to proceed. Recruiting is generally done gently, through seduction and deception. That is how they proceed.
So we use double agents and physical surveillance. We can also use more extensive investigation techniques. I don't know if you want me to talk about this here, but I think you can imagine. We use all these methods to support the reverse onus. Usually, we have the testimony of one other victim.
When we lay these kinds of charges against a trafficker, we have at least used infiltration by a double agent and have confirmation that people are basically in a prostitution situation, that they are being prostituted, that they are in the physical presence of this individual who will drive them around and who will be in contact with them.
Traffickers will sometimes be in contact with several young women at the same time. There will be other aspects regarding communications. I brought a photo that I would have liked to have passed around and that speaks for itself. I will describe it to you. If you agree, I will circulate it.
It involves an individual on a social network who takes a photo of himself with the money that women have handed over to him. There is already another file involving a victim we learned about. She was exploited by that individual, who forced her into prostitution. All the women in the presence of this individual lead us to information that will enable us to investigate further. We also have photos that show that he is taking money from these women. We see him take a photo of himself. He boasts and says, "I am a pimp!"
These are all elements we use to support the reverse onus. We won't just use the fact that he is in the presence of these women. We are also going to submit the fact that he is in the prostitution business, that he drives them around, and so on.
Senator McIntyre: Thank you to the three of you for your presentations. Mr. Monchamp, I would like to come back to the topic of procuring and human trafficking. I understand that, with procuring, there is always some kind of exploitation, but the Crown must absolutely prove prostitution, which is not the case for human trafficking.
With procuring, threats or coercion do not need to take place and, as you mentioned, the presumption exists with procuring. Furthermore, with human trafficking, the Crown must prove the extent of human trafficking and exploitation; in other words, prove that there was coercion and threats and that the safety of the victims is at stake.
If I have understood correctly, it is possible to lay two separate charges for this kind of offence, one for procuring and one for human trafficking. Is that correct?
Mr. Monchamp: Yes.
Senator McIntyre: So there is no other problem with that. As for the presumption, given that it already exists for procuring, it would be normal for it to exist for human trafficking as well, right?
Mr. Monchamp: We can't use it for human trafficking at present.
Senator McIntyre: No, not at present, but it would be possible with the new bill?
Mr. Monchamp: That's right.
[English]
Senator Batters: Thank you very much for being here, everyone.
Mr. Monchamp, in your experience, has the crime of human trafficking increased or decreased over the last decade?
[Translation]
Mr. Monchamp: It's difficult for me to respond in a completely detached way, because I do this every day. I don't have the figures, but we are working full time. We have more and more cases to deal with, but we are working differently, which means that we have more and more cases. Increasingly, we are joining forces with community groups. We have established prevention programs, which lead to more cases. Does that mean that we have more? I don't know, but I can tell you that the victims' faces have changed.
In the past, victims were from youth centres, broken families, and suffered from emotional deprivation and serious difficulties. We still see them. They are the main commodities for these individuals. What has changed in this picture, or rather what has been added, in the last decade, is that victims come from all kinds of backgrounds. We have people who do not come from disadvantaged backgrounds or broken families. You would never suspect that these people would end up in this environment. I can give you several examples. In a case we handled, the victim was a young woman in her 20s, at university with a stable job. She was recruited into this environment, but she had never been in the sex business before, and she would never have believed she would end up there. No one in her family could have believed that she would be in that environment. However, she was recruited; she got caught in a trap. She was forced into it. Once there, the only way she could get out was through police intervention, and it was a good thing because she would be dead. Most of these young women tell us that they did not think they would get out. Most of them do not think that the police can do anything for them.
[English]
Senator Batters: Thank you very much.
In response, if you could address this question also, Mr. Monchamp. Ms. London-Weinstein was speaking earlier about consecutive sentences. I'm wondering if you could tell us what your experience is about how often judges currently impose consecutive sentences in these types of serious crimes.
[Translation]
Mr. Monchamp: It is extremely rare. We are mainly concerned with cases in which the individuals have several victims over a long period of time. They are predators for the most part who will victimize people throughout their lives. For example, when we arrest an individual for a specific case, we go back in time to corroborate the victim's version. In doing so, we see who that individual has been in contact with, and we often find other victims in the past. We will have parallel cases that are not linked. The victims are from two different periods, and yet the individual will receive concurrent sentences, while the two victims have been exploited in different periods. That situation concerns us because it sends the message that there is no difference in what a person does to one, two, five or 12 victims.
We recently saw a major case in Vancouver where there were almost a dozen victims. The individual received consecutive sentences for the 12 victims.
[English]
Senator McInnis: Thank you for coming. I'm just seeking your assistance here because I'm trying to come to understand something. Any form of exploitation through prostitution and the Criminal Code — I think it's section 212 — falls under the definition of trafficking in persons.
Now we have the amendment to section 279.01 in this bill, which is pretty much the same. It seems to me that the offender could be charged under either section. We seem to see a fair bit of that now, since I've been on the Legal Committee, two or three occasions where it's already in the code.
I guess my question is for my clarification, since I have you experts here: Why is this necessary? Is there an advantage when they're essentially the same?
[Translation]
Mr. Monchamp: There is an important distinction. It is true that a person involved in human trafficking can be charged for procuring, but those who commit procuring may not necessarily be charged with human trafficking. That's the distinction, which is why the section on procuring is important. All the cases that have to do with the seduction, manipulation and deception used to get girls into prostitution by making them fall in love with these individuals do not fall under human trafficking. For something to be considered human trafficking, we are at a point where there needs to be a steady rise in threats, violence and fear for the victim's safety. If those elements aren't there, we are not dealing with human trafficking; it is still procuring.
You are right that exploitation is involved with procuring, but not without violence. In some cases, the element of violence is not present, but it is simply the element of manipulation that is at play. That is why the section on procuring is useful. It is important to be able to target these individuals who will manipulate the young girls having them fall in love so they can eventually use them in human trafficking when those techniques no longer work. If we do not go back there in space and time and there is a file that shows that a young woman was manipulated, that she discovered this and had given away all her money, because she had been promised the sun and the stars, a life together, a couple. All he did, in the end, was to sexually exploit her to obtain all her assets, but through false pretenses and lies. If we did not have this section on procuring, we could not pursue these individuals.
You mentioned Alain Jean-Pierre previously, and it is exactly a case like that. A case like that is one in which we would not have been able to lay any human trafficking charges because there was no violence, no threat to security, and the manipulation of the victims all took place in a subtle way. He was exploiting six at the same time. That is the distinction I could make between the two sections.
[English]
Senator McInnis: It is a reasonably fine distinction.
The Chair: Mr. Russomanno, do you want to briefly respond to that as well?
Mr. Russomanno: Yes. The offence of procuring under section 212, as you pointed out, just by looking at the sentencing provisions for persons under the age of 18, it's a mandatory minimum sentence of two years, whereas the existing section 279.01 carries a mandatory minimum of five years for people under the age of 18. The mens rea is heightened in the case of 279. The level of moral blameworthiness is higher given that it's for the purpose of exploiting that person, whereas under procuring it could be for the purpose of having illicit sexual activity. So the level of mens rea or intent is less, maybe even far less, under procuring.
There's a significant overlap there because I think we can agree that there's a certain amount of exploitation regardless. But the elements of the offence would be different, and I think the sentencing provisions reflect a heightened level of moral blameworthiness for section 279.01.
The Chair: We have time for a few second-round questions.
Senator Baker: The provisions covered by the consecutive sentencing clause in this bill are 279.01 to 279.03. If you're convicted of an offence under 279.01 or 279.02, it's a life sentence. It's up to life imprisonment if violence was used and if you had a case that was covered by the first section. In the second section it's up to 14 years.
When this provision was brought in — I remember it very well — it was after we ratified the United Nations convention. Two bills were brought before the Commons and the Senate. One was the Criminal Code provision that we're dealing with now. The other was under IRPA, the Immigration and Refugee Protection Act, and they mirrored each other in penalty and provisions. Here we're changing one but not the other.
Ms. London-Weinstein, when you look at the other provisions where you have consecutive sentences, you find that the consecutive sentences are listed. I'll give you an example. There are three of them, as I mentioned before. If you go to 83.26 of the Criminal Code, it says:
A sentence, other than one of life imprisonment, imposed on a person for an offence under any of the sections 83.02 to 83.04 . . . shall be served consecutively . . . .
Other than one of life imprisonment.
Ms. London-Weinstein: That's right.
Senator Baker: This bill doesn't say that.
Ms. London-Weinstein: No, it doesn't.
Senator Baker: This bill says that they will all be consecutive, even including the life sentences.
Ms. London-Weinstein: That's right. So the potential for defending the principle against gross disproportionality exists. We're not saying at all that these types of offences are not worthy of a retributive aspect and that they're not worthy of drawing serious periods of incarceration.
My understanding is the officer indicated that there have been very few consecutive sentences, if any, given by judges in relation to this legislation. My understanding is that there have been very few convictions at all, and that may relate to some of the comments he made earlier about the difficulty in prosecuting these offences due to the nature of the complainants in these cases.
One thing we haven't discussed that I wanted to raise in terms of proving these cases, we have many vulnerable victims in our criminal justice system. We have children who have been sexually abused. There are women who are victims of domestic violence, and our jurisprudence has developed a number of methods and provisions in the code itself to make it easier to receive the evidence of these witnesses. They can testify by way of closed circuit television. We have methods of admitting recorded statements that they've given. If they're unable or unwilling to testify, rather, the evidence can be received as a form of admissible hearsay.
The courts are sensitive to the difficulties in prosecuting these cases, but to just solve the difficulty of the fact that it's a difficult case to prosecute by reversing the presumption of innocence and reversing the onus is an extreme approach when there are other methods of successfully prosecuting them.
So where you will have sentences that are consecutive to any other sentence that a person is subject to, or there are a number of separate incidences that wouldn't be subject to Kienapple, because they would be separate complainants but part of the same investigation, there's a real potential for a sentence to be so crushing that it is going to offend section 12 and you will end up coming into constitutional conflict. That's the problem there, as you indicated.
[Translation]
Senator Boisvenu: Ms. London-Weinstein, in the case of sexual assault, one victim in ten denounces the assailant. According to the study done by the Canadian prison system, one reason for this low denunciation rate is related to the ridiculous sentences that are given; most of the time, sentences are less than two years, followed by a release at one- sixth of the time. If the assailants of multiple victims or individuals who carry out this treatment over a long period of time are given consecutive sentences, don't you think that it would improve the victims' faith in the justice system and we could increase the number of denunciations?
[English]
Ms. London-Weinstein: I do believe, senator, that sentences that are appropriate and do reflect the community's view of these types of offences — which I agree are worthy of denunciation as there has to be a denunciatory element to these sentences — in certain circumstances, where the facts are very aggravating, consecutive sentences can be appropriate. What I object to is making it mandatory in every instance so that you're limiting the ability of judges to fashion appropriate sentences.
I'm a trial lawyer by profession, so I'm raised in a tradition of trusting judges to do the appropriate thing because they're dealing with cases which are all different on their facts. You may have an offender who is severely culpable by way of being a principal as opposed to a party. You're going to want to impose a sentence that's very harsh to express the community's view on sentence.
You might have another offender who is younger and is culpable by way of being a party as opposed to a principal, much less involved, and you wouldn't want a sentence that was that harsh.
[Translation]
Senator Boisvenu: Don't you think that concurrent sentences favour the criminals more than the damage done to the victims?
[English]
Ms. London-Weinstein: I would say that a consecutive sentence is harsher than a concurrent sentence. I would agree with you on that. However, I'm saying that I see judges imposing consecutive sentences in circumstances where they're warranted on the facts of the case, and I'm comfortable with the judges being the ones who make that determination.
[Translation]
Senator McIntyre: Mr. Monchamp, clearly, the strength of this bill lies in the presumption, the consecutive sentences, the provision on sexual exploitation and, lastly, the confiscation of the proceeds of crime. On that point, certain sections of the Criminal Code relate to the confiscation of the proceeds of crime once an individual is convicted of certain offences. Having said that, I note that the bill adds to that list any offence relating to procuring or human trafficking. In your opinion, what is the importance of this clause of Bill C-452?
Mr. Monchamp: It's obviously an important punitive tool and may also be restorative, in certain cases of recovery, depending on how it will be applied by the judges.
Honestly, I would say that we are already doing this. We are already doing this recovery of proceeds of crime, with regard to that aspect of the bill. I do not know what it will facilitate. To be honest with you, I do not know in terms of that aspect. Perhaps the jurists could give you a better explanation, but we cannot tell you that. We are already doing it in cases where it is possible. Will this section facilitate things? I do not know, quite honestly.
Senator McIntyre: But it might help?
Mr. Monchamp: Clearly, it may be useful, yes.
[English]
Senator Joyal: I would like to come back to the issue of the presumption and the constitutionality of the presumption.
What strikes me is that the letter from the Quebec bar is dated October 23, 2013, which is before the Bedford case. The Bedford case, as you know, is dated December. It seems to me that in the context of the decision in Bedford that found section 212 unconstitutional, the opinion put forward by the Quebec bar certainly raises doubts about its legal validity.
The opinion given to the committee by the Canadian Bar Association is dated December 8, 2014, which is much more recent. In one of its footnotes, number 3 on page 2, there is a very encompassing legal argument, and I will read it:
. . . the wording of s. 212 did not create a presumption of control or exploitation by merely living with or habitually being in the company of a sex trade worker. The presumption merely related to the more logical deduction that if one lives with a prostitute, they are likely living off of the avails of that individual's work. Conversely, Bill C-452 proposes a presumption of exploitation and control by virtue of merely living with or habitually being in the company of someone who is exploited.
The reasoning I would make is that if Bedford has struck down section 212, which was a lesser encompassing presumption, the fact that this bill brings forward a presumption that covers the intent has a greater risk of being found unconstitutional.
Mr. Russomanno: Absolutely. You've raised a very important point here. The import of Bedford is not necessarily direct or perhaps readily apparent. What the court finds in Bedford is that a whole host of innocent activity could be included in that provision of living on the avails.
Something that strikes me about Justice McLachlin's dissent in Downey and her talking about internal rationality — if you would permit me to read from paragraph 66, this deals with the presumption of living on the avails. It is not even as far-reaching a presumption. It states:
This case, as I see it, requires us to consider the degree of internal rationality required to justify a presumption under s. 1. In Oakes, this Court held that there was insufficient rational connection between the substituted fact of being in possession of a narcotic, and the presumed fact of being in possession for the purposes of trafficking. The reverse onus clause in issue there was held to be irrational despite the obvious fact that in some cases an inference could be made from proof of possession that that possession was for the purposes of trafficking. The fact that there would be some cases, for example where the possession was of only a small quantity of narcotics, where the inference would be unreasonable, was sufficient to render the reverse onus clause irrational . . . .
The other case to look at, by the way, is Whittle, where there's a presumption in law that someone in the driver's seat of a car is in care and control of that vehicle. Justice McLachlin draws this distinction saying that you have an internally safe presumption where there is consistency between someone in the driver's seat, that they're in care and control and have all the means to control the vehicle.
Whereas Justice McLachlin in Downey says that just because you are in the company of someone who makes a living from prostitution does not mean you live on the avails. Here, as you have pointed out, senator, it is even more difficult, even more internally irrational, if I could use that term, because not only do you automatically presume the actus reus, but you presume the mens rea.
How can we say that anyone who associates with an exploited person is themselves exploiting that person for the purpose of exploiting them? How can we say that? There are so many people that would associate regularly with someone who is exploited who may not be doing that, including people who are trying to get them out of the situation of exploitation.
So this would effectively render anyone who associates with an exploited person caught under this section. It can hardly be said to fit within that language. Those are my concerns.
The Chair: We will have to wrap it up on that. Thank you all, witnesses, for being here today.
Detective Sergeant Monchamp, a special thank you for braving some very difficult driving conditions to appear here. It is very much appreciated.
Members, next week we will continue with the consideration of this legislation and possibly deal with clause-by- clause on Bill C-279.
If members of the steering committee have a few moments after we adjourn, I would like to try and firm up next week's agenda.
(The committee adjourned.)