Proceeding of the Standing Senate Committee on
Issue No. 29 - Evidence - Meeting of May 23, 2018
OTTAWA, Wednesday, May 23, 2018
The Standing Senate Committee on Human Rights, to which was referred Bill S-240, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs), met this day at 11:31 a.m. to give consideration to the bill.
Senator Wanda Elaine Thomas Bernard (Chair) in the chair.
The Chair: Good morning, senators. I would like all senators to introduce themselves, starting with the deputy chair.
Senator Cordy: I am Jane Cordy, a senator from Nova Scotia, and deputy chair of the committee.
Senator Hartling: I am Nancy Hartling, senator from New Brunswick.
Senator Pate: Kim Pate, Ontario.
Senator Ataullahjan: Senator Salma Ataullahjan from Ontario.
The Chair: You are wearing two hats today.
Senator Ataullahjan: Yes, I am.
The Chair: I am Senator Wanda Thomas Bernard from Nova Scotia, chair of the committee.
Before we begin our study of Bill S-240, we have a budget before us for consideration. The special study budget application relates to our study on the human rights of prisoners in the correctional system.
It includes two activities planned for the fall: one trip to Saskatchewan and Manitoba, and one trip to Scotland and Norway. I will give you a moment to look at those budgets.
Are there any questions on the budget?
Senator Pate: Are we doing a separate trip to B.C.?
The Chair: The budget for that has already been approved.
Senator Pate: That’s the one we’re talking about in August.
The Chair: Yes.
Senator Pate: My apologies. I move acceptance of the budget.
The Chair: Acceptance of the budget has been moved by Senator Pate, seconded by Senator Ataullajan.
Hon. Senators: Agreed.
The Chair: Let me ask: Is it agreed that the special budget application relating to our study on the human rights of prisoners in the correctional system, for the fiscal year ending March 31, 2019, be approved for submission to the Standing Committee on Internal Economy, Budgets and Administration?
Hon. Senators: Agreed.
The Chair: Agreed.
Colleagues, today we begin our study of Bill S-240, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs).
I would like to take this opportunity to encourage senators to consult the law clerk’s office should you plan to move any amendments to this bill.
For our first panel today, we’re pleased to welcome: the Honourable Senator Salma Ataullahjan, sponsor of the bill; from the International Coalition to End Transplant Abuse in China, the Honourable David Kilgour; and, as an individual, Mr. David Matas, Lawyer.
Senator Ataullahjan, you have the floor first, followed by Mr. Kilgour and Mr. Matas.
Hon. Salma Ataullahjan, sponsor of the bill: Good afternoon, senators. I am pleased to appear before the committee today as the sponsor of Bill S-240, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs).
In the years since human organ transplantation became a viable treatment for patients with terminal organ failure, the demand for organs globally has resulted in longer and longer wait-times for donor organs in many parts of the world.
This demand has created a shortage of available organs and has compelled countries to develop systems to increase supply, mainly via deceased donation programs. Unfortunately, these programs have not been enough to fill the gap between demand and supply.
Consequently, trafficking in human organs has become a global problem, including the Indian subcontinent, Southeast Asia, Eastern Europe, Latin America, North Africa and other regions where an economic crisis, along with social and political instability, often creates opportunities for traffickers.
Trafficking in persons for the removal of their organs is prohibited by international law as part of a general prohibition on human trafficking, defined to include exploitation for the removal of organs.
Notwithstanding, in 2007, the World Health Organization reported that trafficked organs accounted for an estimated 10 per cent of organ transplants performed around the world and that 5 to 10 per cent of all kidney and liver transplants globally were conducted with illegally obtained organs and/or paid victim donors.
The recipients of trafficked organs are often people who have been languishing on organ donor waiting lists in wealthy countries and make the decision to travel abroad to obtain a black market organ from victim donors, who predominantly suffer from desperate poverty and often have been deceived or coerced by trafficking networks into giving up an organ for a fraction of the money the organ recipient has paid to the traffickers.
Or, worse, victim donors are kidnapped and held captive for the purpose of organ harvesting without their consent. Many do not survive, and those that do most often find a very difficult road ahead.
In order to address the growing problem, to date, over 100 countries have passed legislation prohibiting the trade of organs. Further, a number of governmental and professional bodies have developed initiatives that regulate domestic and international organ transplantation and tackle organ trafficking, including, for example, the Council of Europe Convention against Trafficking in Human Organs.
While organ trafficking is subsumed within the offence of trafficking in persons in the Criminal Code, Bill S-240 seeks to amend the code to create additional offences in relation to trafficking in human organs and tissue.
Further, it seeks to amend the Immigration and Refugee Protection Act to provide that a permanent resident or foreign national is inadmissible to Canada if the Minister of Citizenship and Immigration finds that they have engaged in trafficking in human organs or tissue.
The crime of trafficking in human beings was first defined in the UN Palermo Protocol and has since become universally accepted as the international legal framework against human trafficking. The Declaration of Istanbul states that all commodification of organs is ethically wrong and must be criminalized.
The European Union has also recognized that commercial trade in human organs, including trafficking in persons for organ removal, has developed into a global problem.
In its 2015 report on the trafficking of human organs, the European Parliament emphasized that recipients of illegally obtained organs must be held morally responsible and that measures must be taken to discourage and deter this practice, including holding organ recipients criminally liable.
One of the goals of this bill is to prohibit transplant tourism, and in this regard the RCMP has said:
There is no law in Canada banning Canadians from taking part in transplant tourism — travelling abroad and purchasing organs for transplantation and returning home to Canada.
Further, in its publication on organ donation, the Canadian Bioethics Companion, an online textbook for Canadian ethicists and health care workers, states:
There is no specific mention of selling organs in the Criminal Code. . . . Canadian law does not make it strictly illegal to travel abroad to receive an organ, even though Canada has joined most of the world in the condemnation of the sale of organs and transplant tourism.
In 2013, seven people in Kosovo suspected of running an international organ trafficking ring, taking kidneys from poor victim donors lured by financial promises, stood trial. At least 24 kidney transplants, involving 48 victim donors and organ recipients, including a Canadian citizen, were carried out between 2008 and 2009.
After the trial, the Canadian prosecutor working for the European Union’s Rule of Law Mission in Kosovo stated that the Canadian government must pass legislation barring Canadians from buying human organs in foreign countries.
Honourable senators, organ trafficking is a practice that targets impoverished and otherwise vulnerable people and is a violation of the principles of equity, justice and respect for human dignity. I therefore ask for the committee’s support in adopting and sending Bill S-240 to third reading.
Hon. David Kilgour, International Coalition to end Transplant Abuse in China: Madam Chair and senators, permit me to say that I agree with every word we have just heard. David Matas and I have probably spoken in probably 50 countries about this dreadful issue with which the senator concluded her remarks. It’s quite embarrassing to us that a number of countries have passed legislation, such as Chile, Norway, Spain and Taiwan, and yet Canada has not passed the kind of bill that you have before you now.
I have a statement to make. Five minutes is a very short time. Maybe I could paraphrase part of it. I think there are copies available if anyone wants more detail.
Indeed, Mr. Matas and I wrote this book in 2009. If anyone would like a copy of it, I gather someone was kind enough to bring copies. Can I pass it around or shall I get copies for everyone?
The Chair: We’ll look at it after.
Mr. Kilgour: One point that gets made all the time is the tragedy of a mother who sells her kidney so that her child can go to college or something. There’s only one country in the world out of 196 now where the government runs this trafficking. There are no survivors in China. All of the donors in China basically have all of their organs taken and then their bodies are burned.
It’s important to differentiate between what happens in back alleys in some cities and what happens in the People’s Republic of China. You don’t even have to mention China in your bill. I don’t believe the Taiwanese legislation mentions China. If you ban trafficked organs purchased by your nationals, you’re only talking about one country and hopefully there will never be another country doing it. You don’t even have to mention China.
David Matas will talk about this bill. In my statement, I talk a bit about how the Taiwanese bill is probably the best bill. You might look at some of the points in there. I say on page 2 that I hope you’ll make friendly amendments if you need them and that you won’t get hung up on small issues. I am absolutely delighted to hear the other place is represented by a sponsor of a similar bill.
I am going to be ruled out of time, basically. We were asked, as volunteers, to look at the evidence that this was happening in China in 2006. We have 18 kinds of evidence that it’s happening. I was a prosecutor for 10 years, and I should know something about evidence.
I give two examples in the statement, but we have mentioned 18 kinds, if you need more, in the book. Ethan Gutmann, who is mentioned in the statement, lives in Britain. He spent seven years writing a book called The Slaughter, in which he explains how he arrived at his “best estimate” that the organs of 65,000 Falun Gong and “two to four thousand” Uyghurs, Tibetans and Christians were “harvested” in the 2000 to 2008 period.
David Matas and I only looked at Falun Gong, but we did an update on Ethan Gutmann in 2016. We looked at the records of hundreds of hospitals in China. We looked at things like nurses’ journals. We have 2,400 footnotes. We know, if we get a single detail wrong, somebody will say we’re not credible. I hope we’ve been extremely careful at all times on this.
We conclude that a minimum of 60,000 transplants per year are being done across China as of mid-2016, not the approximately 10,000 that the Government of China claims. If you do the arithmetic, that means about 150 people daily in China are being killed for their organs, and there are no survivors of these operations.
There’s a page or two in my statement on why we respectfully disagree with The Transplantation Society and the World Health Organization on this issue. We point out that mental health professionals globally faced the abuse of psychiatry in the Soviet Union and acted strongly against it.
Today, international transplant professionals face the abuse of transplant surgery in China, but the responses differ. We break them down into three categories, some of which we respect a great deal more than others.
In conclusion, David Matas and Dr. Torsten Trey, founder of Doctors Against Forced Organ Harvesting, published a recent article. The link to it is in my statement. I won’t surprise any of you when I end by saying that I hope you’ll consider passing a bill consistent with the one in the other place, so that we can get something done that will do what was so eloquently stated by the senator when she started this discussion. Thank you.
David Matas, Lawyer, as an individual: I want to thank you for inviting us and to commend the Senate for bringing this bill to this stage.
There have been four private members’ bills on this subject matter in the House of Commons over 10 years which have not gone beyond first reading. After 10 years, it’s about time that legislation on this subject matter went beyond first reading. The four previous bills were introduced both by Liberals and Conservatives, so this is an issue with cross-party support.
David Kilgour and I have been focused on transplant abuse in China with prisoner of conscience victims, mainly practitioners of the spiritually based set of Falun Gong exercises, a Chinese equivalent of yoga. Transplant numbers in China shot up shortly after the persecution of Falun Gong began in 1999.
The mass murder in China of innocents who do nothing more than engage in exercises with a spiritual foundation must seem a mystery to Canadians. The murderers themselves do everything they can to cover it up. The explanation, like much else which happens in China, relates to the Communist Party drive for control. The practice of Falun Gong, initially encouraged as healthful, became so popular that the party feared for its ideological supremacy. The practice was suppressed and then demonized to the point where those being killed for their organs were not seen as persons. While apostasy, even after torture, was welcome, eradication through organ extraction was also perfectly acceptable.
The ability of Canada to impact on human rights in China is limited. However, it is entirely within our powers to avoid complicity in those abuses. This bill is a welcome effort in that complicity avoidance.
One of the reasons David Kilgour and I came to the conclusion we did about the mass killing of prisoners of conscience of Falun Gong for their organs was the absence of any law or ethics directed against cross-border transplant abuse, either in China or abroad. Killing Falun Gong for their organs has been a cost-free abuse from which billions have been made.
This bill is a step in the direction of imposing a cost for the abuse. When this legislation is passed, perpetrators will know that they can be prosecuted in Canada and banned from entry into Canada.
The legislation is global in scope but has particular resonance for China because of the state-run nature of its transplant industry. Elsewhere, as we’ve heard from David Kilgour, the existence of an underground market in organs is clear to those who participate in it.
In China, where the black market in organs runs with official sanction, it is easy for those involved in components of the industry to turn a blind eye to the overall abuse. Prosecuting in Canada and banning from Canada will be a wake-up call, a notice that we know and that they should know.
I would be pleased if the Senate and Parliament were to adopt the bill even as it stands, but I do have a suggestion to make. All four of the house bills were considerably more extensive than this Senate bill. In particular, the house bills included listing and reporting requirements that this bill did not include.
The listing requirement, listing those involved in organ transplant abuse with consequent adverse impacts for those listed, may no longer be necessary because of the recent passage by Parliament of Magnitsky-type legislation. That legislation could and should be used to list those complicit in organ transplant abuse.
I suggest the reporting provisions in the House of Commons bill remain worthy of consideration here. Right now, there is not even voluntary reporting of transplant tourism by health professionals to government officials. David Kilgour and I are constantly being asked about transplant tourism into China from Canada and other countries.
We have some information but it is mostly anecdotal. For instance, there was an article in 2014 about one doctor, Jeff Zaltzman at St. Michael’s Hospital in Toronto. That one doctor in one hospital had 50 patients who had gone to China. Because there’s no collection of publicly available statistical information about this phenomenon, we don’t really know the full scope of it here or anywhere.
The information should not be difficult to get. Anyone who gets a transplant abroad needs aftercare back home. Health professionals know about transplant tourism because transplant tourists are their patients. They just don’t tell about it.
Perhaps it’s unreasonable to expect doctors to talk about what they know from their patients because of the obligations of doctor/patient confidentiality. That’s why compulsory reporting is necessary.
Without going through every province, I point out that Ontario has a Mandatory Gunshot Wounds Reporting Act; Manitoba has a Gunshot and Stab Wounds Mandatory Reporting Act; Ontario and British Columbia require reporting of suspected cases of child abuse or neglect; and Manitoba has an obligation to report a child in need of protection.
In these cases, the value of protection against gun and knife violence and against abuse or neglect of children has prevailed over the value of health professional patient confidentiality.
It should be the same for organ transplant abuse. However, even to those who have different opinions, I would say we should at least be able to gather aggregate data of transplant tourism. Without aggregate data we have no clear idea of the scope of the problem we are facing.
Transplant abuse occurs under cover of darkness. Perpetrators give out as little information as possible. Participants in the abuse are typically wilfully blind. Shining a light on the abuse is an important aid to ending it.
I appreciate that transplant abuse is a global problem, but we have a particular problem with China because, there, uniquely, transplant abuse is a state industry directed against its political enemies of choice. China denies, covers up, obfuscates and generates make-believe statistics. To respond to Communist Party propaganda statistics, we need real numbers.
Without compulsory reporting we get caught in a vicious circle. We do little about the problem because we do not know how big it is. We do not know how big it is because we do little about the problem.
Some professionals have talked about establishing voluntary reporting systems, and I encourage them to do so. However, the fact that not even these proposed voluntary reporting systems are in place now indicates the need for compulsory reporting systems. Without compulsory reporting, the black market in organs will continue to be pitch dark.
Senator Cordy: Thank you very much to all of you, and to Senator Ataullahjan, thank you, particularly, for bringing this issue to Parliament yet again.
When I look at the number of times it has been brought to the House of Commons by the Liberals and the Conservatives and has come to nothing, you have to ask yourself: When will we actually take a stand and do something?
Because it’s a global problem and a global issue, sometimes we sit back in Canada and think that it doesn’t affect us; but when I look at 50 patients from one doctor in Toronto going to China for transplants that, to me, is very jarring.
When I look at parts of the bill that talk about removing without giving informed consent, I have to wonder what is the definition of informed consent. Mr. Kilgour, you gave the example of the mother who sells her kidney so that her child can go to university or those who sell an organ so their children can get food. Is there such a thing when we’re talking about organ donations as informed consent?
Senator Ataullahjan: I’ll speak briefly to it. The Encyclopedia of American Law defines informed consent as:
Assent to permit an occurrence, such as surgery, that is based on a complete disclosure of facts needed to make the decision intelligently, such as knowledge of the risks entailed or alternatives.
I could give you another legal description, but with informed consent basically you consent to medical treatment by a patient or to participation in a medical experiment by a subject after achieving an understanding of what is involved, specifically the risks.
I’ll let Mr. Kilgour take it from there.
Mr. Kilgour: It doesn’t seem to be well understood basically what happens. If Senator Ngo needs a new liver, and I pick on him because he’s one of the few men at the table, there’s nothing funny about it. He pays a huge amount of money to a broker, like $100,000 or $150,000. We posted the schedules. The prices go up and down, but it’s a lot of money.
Through a broker, he flies to the Shanghai People’s Number One Hospital and checks in. They take his blood and tissue samples. Then they go on that theirr computer to find out who is a match for him out in one of their 350 labour camps. That is the best information we could get.
By the way, in these camps are people sent there on a police signature only. They work 16 hours a day making consumer products for the West. We have heard from people who have been in these camps that they’re making McDonald’s toys and Christmas decorations as subcontractors to international companies.
The poor man in the camp who is a match for him is taken out of the dormitory, with 16 other people and things like that, and is given some potassium. We can talk about whether that kills the person or shocks them or stuns them, but then his liver is taken out in a white van and flown by the People’s Liberation Army to Shanghai. He gets his new liver and comes back to Ottawa with it. He’s probably told that he’s getting it from some convicted criminal.
People don’t want organs from convicted criminals. They want them from Falun Gong because the Falun Gong don’t smoke or drink and tend to be healthy. We actually have in our evidence phone calls of people pretending to be Falun Gong phoning these institutions and asking, “Do you have Falun Gong organs available?” In 15 institutions, we found that they said, “Yes, we have Falun Gong organs available for you.”
That’s the hideous way this inhuman system works.
Mr. Matas: If I may add to that, your question is kind of a large one; but let me focus specifically on China. How do we know there’s informed consent from China? The official Chinese position is that everybody has been consenting all along from the very beginning.
Even when they didn’t have a donor system, they said all organs came from donors. Then they said everything was coming from prisoners, and they said they were prisoners sentenced to death, all of whom consented to give organs as atonement for their crimes. Now their official explanation is that everything is coming from donors. How do we know there’s informed consent?
Realistically, there are three different ways you can get organs from donors. One is live donors. The second is deceased donors, and the third is what China does: kill people through organ extraction.
When people are killed through organ extraction, that is never informed consent. Even if it’s supposedly a prisoner sentenced to death who signed something saying, “I donate,” that’s not informed consent. When it comes to deceased donors, they would have consented during their lifetime. They would have been alive, and you could check with them during the time they’re alive to see if this is valid consent.
Some countries also insist that, for deceased donors, the family members consent. For live donors, there is a problem with exploitation. It’s also bad for your health to lose an organ, even if you can survive it. On the whole, live donation is not advisable.
The question is, how do you know there is informed consent for deceased donation in China? The only way, I would say, is through independent outside investigation. You can’t trust what the party says, of course, but that’s your only official source of information. If we are to get informed consent from China, we will need outsiders to be able to go in to talk to the deceased donors before they’re deceased to check to see if they really have given consent.
Senator Ataullahjan: As is the case for most if not all of our bills, this bill was drafted by the Office of the Law Clerk and Parliamentary Counsel. If the lawyers in that department thought informed consent should be defined in the bill, I trust they would have done so. The term “informed consent” was used in Bill C-14 on assisted dying, if you remember, and it wasn’t defined.
Senator Cordy: Mr. Matas and Mr. Kilgour, you have done exceptional work on the whole issue of the harvesting of organs, particularly in China, and I thank you very much for that. Yet, I am not sure that a lot of people are paying attention.
One of you noted that perhaps it was because you were relying on anecdotal evidence and that mandatory reporting would be very helpful. Then you could say that 50 patients from one doctor in Toronto went to China to get organs. You would have to know, as a doctor, if they had implants when they came back with new organs.
Would that go a long way?
Mr. Kilgour: Mr. Matas will recall that we went to three hospitals back in 2009: one in Vancouver, one in Calgary and one in Toronto. We managed to learn, from those three hospitals alone, that about 100 Canadians had gone to China for organs. There are a lot of other hospitals, too.
Maybe Mr. Matas could point out the article that just came out in South Korea. Did you bring the article?
Mr. Matas: It’s on my laptop.
Mr. Kilgour: They give the number of people, where they’re going for their organs and from which countries. The only thing I couldn’t figure out from the chart is what year they were talking about.
Do you have comments you could make about that?
Mr. Matas: Certainly, compulsory reporting would be able to give us more of a handle and help us. As you say, it’s not as well known as it should be, and part of the reason it’s not well known is that, of course, China denies everything.
There isn’t reporting in countries where there is transplant tourism, so it’s just anecdotal information. The anecdotal information is interesting, useful and important in terms of the numbers, but it’s also useful in terms of what’s actually happening because one of the other pieces of anecdotal information we get is something like Jeffrey Zaltzman talked about in 2014 when he said:
One of my patients went for a kidney. It didn’t work, and, a few days later, he got another kidney, which would not happen anywhere else in the world, which means somebody is being killed for their organs.
We heard a story like that from Israel when a patient who needed a heart transplant booked it two months in advance. David Kilgour interviewed a patient from Taiwan who had eight different kidney transplants.
Once you start getting this information, you get lots of different, very telling information. By not having some form of compulsory reporting, we’re keeping a lid on some very troubling information.
Senator Hartling: Thank you very much for being here, and thank you, Senator Ataullahjan, for sponsoring this bill.
It sounds like it has been around for quite a while. I am new to the Senate. I have only been here a couple of years, so I am learning a lot of interesting information.
You’re talking about doctors telling their patients about that, and I am thinking about their ethics in that whole issue. I am curious about that.
Mr. Kilgour: From everything our medical system is based on, our doctors should not tell patients to go to China. I don’t think they do. I think it’s brokers. We’ve actually heard stories of people wandering through hospitals in Canada, trying to get patients to go and get an organ in China. These brokers shouldn’t be allowed in the hospitals. They should be prosecuted. There are all kinds of things that I hope the bill deals with.
When I mentioned the 100 patients, all of those patients’ doctors admitted to us they had come for aftercare. They hadn’t known, to the best of my knowledge, that they were going to China for an organ until after they came back.
Senator Hartling: Some good awareness needs to be happening on that. You didn’t mention anything about the East Coast.
Mr. Kilgour: Things are always better on the East Coast.
Senator Hartling: I know that. I just wanted to hear you say that.
Part two of that would be: Do you have other advocates? I know you have done a fabulous job, and I notice we have a whole group of people in the back here. You seem to have made a real commitment to this issue, but do you have people in Canada, say of Asian descent, who are interested in this topic and are helping to inform and make people aware here and in China, for example?
Mr. Matas: Maybe I could address the first question about ethics before the second one. I noticed in your second hour that you will hear from Dr. Gill, who is with the Canadian Society of Transplantation. They have developed a very detailed, thorough ethical statement about transplant tourism when dealing with counselling patients that is better than anywhere else in the world. They say that patients should be advised that if they go for transplants, in some countries somebody may be killed for their organs. I haven’t seen this anywhere else.
The ethical issue that arises, first of all, is the particularity of China and, second, the manner in which China is engaged. Unfortunately some of the transplant professionals, not necessarily in Canada but internationally, tend to feel that all they have to do is talk to the Chinese and they’ll change their ways. They have meetings. They invite them to conferences. They go there for visits. What that does is cut down on the global peer pressure that might affect change, without really impacting on change meaningfully. There is a bit of debate in the profession about that.
In terms of outside, initially David Kilgour and I were pretty much alone. It has now been 12 years and, yes, there is quite an active group. There is an organization that David Kilgour is representing here, End Transplant Abuse in China. That international group has components in different countries in the world, including Canada. It’s quite an active group now.
There is an NGO. There is a website. A lot of people are carrying this activity beyond David Kilgour and me, but obviously we could use more and we need more.
Mr. Kilgour: I wish you could hear Sarah Park, head of the Ottawa Coalition to End Human Trafficking, including organ trafficking. It is a coalition of professionals of various kinds in this city. I wish we had coalitions like that in every city.
Senator Hartling: What is her name?
Mr. Kilgour: Sarah Park.
Senator Ataullahjan: While organ trafficking has been going on in China, we’re also seeing an increase, all of a sudden, in North Africa where there is a lot of fleeing refugees. When I was doing this research, I was shocked to see some of the countries that were named.
There was an instance in North Africa where they found dead bodies. When the doctors looked at them, they said that some of the organs had been harvested while the people were still alive. Apparently, organs are harvested and then they are flown into some of the Middle Eastern countries where the doctors perform the surgeries.
It is a practice that is spreading. It has moved beyond Asia. You can look at the list. When I was doing my research, I was horrified to see how many countries were on that list.
Mr. Matas: If I may follow up on that, taking an organ from a live body, putting it into a live body and killing someone through the extraction pose different surgical and pharmacological problems than if we are dealing with deceased transplants or live transplants.
There has been a lot of research in China about how to effectively source organs from living people without worrying about whether they will survive. That research then becomes available for use elsewhere to effect that type of operation.
Senator Pate: Thank you, Senator Ataullahjan, for sponsoring this bill, and thanks to both of you for your presentations.
I am interested in how you see Bill S-240 actually helping to improve Canadian compliance with the international obligations. You mentioned the Palermo Protocol, and I am curious as to what else you see that will ensure Canada is in compliance.
Mr. Matas: My experience from following all of this for a while is that the Chinese transplant profession is susceptible to global peer pressure. They want to study abroad. They want to go to conferences abroad. They want to publish in foreign journals. They want exchange visits. They want cooperation with Canadian universities.
If they were told, at least the ones complicit in organ transplant abuse, that they could not enter Canada, it would be a pressure on them to try to effect change because they want to enter Canada for their own professional reasons.
This is part of the problem when dealing with human rights violations in China. The Communist Party basically doesn’t care. Their primary concern is maintaining control, not respecting human rights. The transplant profession is not as focused on Communist Party control as the government is.
To say that you can’t enter or, even worse, that you might be prosecuted if you are allowed entry, means something to them. Even if the number of people to be prosecuted is small, it sends out a message that will communicate something to them.
Mr. Kilgour: We’re not trying to go after someone who desperately needs a new kidney or liver and goes to China. Some people think we want to throw these people in jail. We don’t want to throw them in jail. We’d like them to know that somebody will be killed if they go to China for an organ, and probably a victim of conscience who has been convicted of nada. That’s the way the system works.
Usually our opponents say that we will annoy the Government of China. You don’t annoy the Government of China because you don’t even have to mention China in your bill. Similarly, we are not trying to throw someone who is suffering from a grave disease in jail, to fine them or something like that. We’re trying to go after the brokers, which is what Taiwan does. Taiwan hits the brokers hard and takes away their licence to practise if they refer people to China.
Senator Ataullahjan: Like you said, we need to get the word out about what you are getting into when you go abroad for organ transplants. Especially when you’re very ill, you’re thinking of getting well. You want to get better. Sometimes you don’t ask the right questions, and I think that’s what needs to be done.
Mr. Matas: There was at one point a Canadian pharmacological company in Alberta wanted to do testing for anti-rejection drugs in China. This sort of bill would send a message.
A Canadian brokerage company was advertising on the Internet from Canada, saying that they would arrange for you to have a transplant in China.
In both these cases David Kilgour and I made a fuss in the media, and the pharmacological company backed down and the brokerage company site went off the Internet. I don’t know if they are still in business but the site went off the Internet.
It’s not just the Chinese or the North Africans that are impacted by the bill. People in Canada who are cooperating with this foreign system will be impacted.
Senator Pate: Do you have recommendations on how to strengthen that part of the bill to ensure brokers get that message and there is the ability to pursue, for instance, companies that are part of those systems?
Mr. Matas: There is some legislation, as David Kilgour mentioned, in different countries like Taiwan, Spain, Israel and Italy that deal with this.
The four private members’ bills are a lot longer and more detailed than what you have here. You do have other kinds of models to follow, partly dealing with different issues like listing or reporting, but also partly dealing with the very issue the bill is focused on. The private members’ bills talk about negligence, so it’s not just criminal intent. Obviously, that would strengthen the bill.
The Chair: I have a supplementary question that I would like to ask. Mr. Kilgour, you mentioned the Taiwanese bill as what you would consider best practice. Are there things in that bill that you would highlight and that you might add to this one?
Mr. Kilgour: I talked about Taiwan in the first part of the statement. I included a link to an article written by a lawyer in Taiwan, Theresa Chu, who talks about the bill. Their bill was in 2015. I don’t have to tell you that Taiwan does a huge amount of trade with China.
David Matas and I were in Taipei, and we had a meeting with the bar association. They got behind it five or six years ago. Bipartisan support in their Legislative Yuan that passed a bill, which is the best one.
You may not like some features of it. They can disentitle a doctor to practise if he or she is involved in sending people to China. Mr. Matas mentioned a case in our book of a man with a kidney problem who went to People’s Number One Hospital in Shanghai with his wife and a doctor in military uniform, Dr. Tan. He went down a list, got a name, went away and came back with a vial of kidneys. To make it shorter, this happened eight times before he got a kidney that would work. He went back to Taiwan, and we talked to him in Taiwan. He’s doing fine, but eight human beings are dead because he got a kidney that finally worked.
That’s one of the reasons I think Taiwan is the leader in this legislation. You might want to consider some of the features in their bill.
Mr. Matas: About Taiwan, the legislation is so good partly because the situation in Taiwan is so bad. The Taiwanese were sending over transplant patients in chartered flights. They were filling planes with them.
The current mayor of Taipei is a transplant surgeon. He didn’t get involved in this practice, but he was approached by Chinese doctors who said, “Send your patients to us. We have Falun Gong. They are healthy. It would be better for their patients,” and he refused. Ethan Gutmann writes about it in his book.
Taiwanese doctors used to go over with their patients to China for their transplants. The legislation deals with that particular problem and abuses that you wouldn’t even imagine here. Also, Taiwan is not a federal system, so they can disqualify doctors, strike them from the profession if they are involved in transplant abuse. I assume in Canada that couldn’t be done by Parliament. It would have to be done by the provinces. It does have a lot of details, simply because there were so many detailed abuses there.
Senator Ngo: I listened and all my questions have been asked, but I would like to follow up on the question raised by Senator Cordy asking about informed consent.
Typically the bill is to create criminal offences for Canadians to go to whatever country. How do you deter those Canadians with this bill so that they can be called criminals or whatever? How do you ensure that those Canadians will know?
Mr. Matas: My view is that if you’re going to China, or indeed anywhere else for a transplant, you should be satisfied beyond a reasonable doubt that the source of the organ is proper. The onus is on the patient, the doctor, or anybody who is involved in a transplant.
You can’t say, “I didn’t know,” or “somebody told me this.” You have to make an effort to determine that. The Chinese system, frankly, is so opaque it’s impossible to be satisfied beyond a reasonable doubt that the sourcing of organs is proper.
Senator Ngo: How about those Canadians? They could say they had to go through brokers, and they are thinking that brokers are legitimate. Maybe they think it is proper for them to go there. How do we deter them?
Mr. Kilgour: The problem is the criminal law. As you know, Parliament can only enact criminal legislation, and I assume this is being done under the criminal law power. You have to have a criminal test. You have to make reasonable efforts to find out that this organ is not being taken from somebody who has been killed so that you could have the organ.
You could also do what was done with the prostitution and sex worker legislation. You could make the clients guilty and not the sex workers. You could say that only the people who referred them, brokers or whatever, are guilty, and the man or woman who is very ill will not be looking at a criminal sanction for what they do.
At least by saying it’s against the law, a lot of people will say, “I will not do that. I could be prosecuted.” We passed legislation banning people going to other countries for child sex prostitution. There haven’t been a lot of successful prosecutions under that, I believe, but at least that law is there and people will have to consider, before they go to do something like that, that they could end up being prosecuted for that. I think a lot of Canadians would refuse to go for that reason.
Senator Ataullahjan: I also believe, with the passing of this bill, that people will do their homework. They will look at what they’re getting into. A lot of people who think they are breaking the law will take the time to look at the issue and to see what the options are. Whereas, we’re in murky water right now and there are no clear, defined lines.
Mr. Matas: I take your point. You can’t just pass a law and say, “Problem solved.” You have to get the information out there.
As you say, people have to know more about this than they do now.
Senator Ngo: If that’s the case, can violators like the people in China, the doctors and the brokers, be sanctioned under the Magnitsky Act?
Mr. Kilgour: That’s an excellent idea, as Mr. Matas mentioned. I hope this could be added. Maybe you could build it into this bill. It’s an excellent idea.
Mr. Matas: Technically and legally they’re within the scope of that legislation. They could be added to the list, absolutely.
The Chair: Senator Ataullahjan, thank you for your leadership on this issue and for your participation this morning.
To the David and David dual, thank you very much for your testimony this morning.
For our second panel, we hoped to have three witnesses. We’re having trouble getting Ms. Comrie on by video conference, but two of our witnesses are here.
We have Dominic Lamb from the Criminal Lawyers’ Association and Dr. Jagbir Gill, Associate Professor of Medicine, University of British Columbia.
We’ll start with Mr. Lamb and then go with Dr. Gill. Hopefully, by the time they’ve finished with their testimony, we’ll hear from our other witness.
Dominic Lamb, Certified Specialist in Criminal Law, Edelson & Friedman LLP, Criminal Lawyers’ Association: I hope what I focus on in my comments on behalf of the Criminal Lawyers’ Association will be of some assistance.
I will begin by referring to some of the language used in the draft legislation with regard to the Criminal Code:
240.1(1) Everyone commits an offence who
(a) obtains an organ or tissue to be transplanted into their body or into the body of another person, knowing that the person from whom it was removed did not give informed consent to the removal, or being reckless as to whether or not that person gave informed consent;
I want to speak briefly about that and give you some input from the perspective of the Criminal Lawyers’ Association.
Certainly informed consent as a legal concept is somewhat foreign to our criminal law. It’s not language that you see in our criminal statutes. It is included in the very recent legislation on assisted dying in the Criminal Code. You will see it used twice in our Criminal Code, and those are the only places it comes up. From my experience and understanding, it is a term that is more commonly seen in common law in relation to matters of medical consent, health law statutes and privacy legislation.
I would submit to the committee that what might be important in considering the language of this legislation is to look at the language of consent provisions related to sexual assault in the Criminal Code laid out in section 273.1.
I think that language might be more consistent with the body of law that exists in our criminal jurisprudence with regard to what would be consent, or any absence thereof. Obviously, when we look at consent in the criminal context, we’re looking at whether the consent is valid. We refer to it often as vitiated consent. On the meaning of consent, section 273.1 talks about no consent being obtained where:
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
As I look to the language of the bill that we were provided, I thought it may be something that the committee, and certainly Parliament, would look at to consider that aspect of consent as it’s already provided for in the Criminal Code, as opposed to using the words “informed consent.” The criminal law, with its obviously attached mens rea requirements in criminal offences will look to the body of law that already exists.
Continuing that theme very briefly, there is the use of the words “reckless” in both subsections 240.1(1)(a) and (b) and “carries out, participates or facilitates.” The language in the statute goes on to say, “being reckless as to whether or not that person gave informed consent.”
Perhaps Parliament could look at section 219 within the Criminal Code which addresses the criminal negligence standard. It requires a wanton and a reckless disregard for the lives or safety of other persons. It’s something you could look to in terms of the final wording of this legislation as it moves toward becoming law.
For criminal negligence it is section 219 and, of course, sections 220 and 221 are current criminal law provisions that deal with causing bodily harm by criminal negligence. Bodily harm, obviously, means any hurt as defined in the Criminal Code or injury to a person that interferes with the health or comfort of a person and is more than merely transient or trifling in nature. I would submit that is something important to look at in terms of drafting the wording of the legislation. As it is laid out right now, it doesn’t really incorporate the language or the body of jurisprudence that exists around the existing language in our criminal statutes.
“Tissue” was one of the very broad terms that I noted in the context of the criminal law. What immediately came to mind for us as criminal lawyers is that it’s very broad. Perhaps it needs a more refined definition if we’re looking at capturing conduct under Criminal Code. As it is, the term would capture everything from gametes to stem cells, blood and blood products, all the way up to the major organs that it seems to me this legislation is designed to capture within. It’s something that I think Parliament should look at in terms of defining “tissue” in the context of any legislation that leads to criminal prosecution.
Punishment is the final point I would address in my opening statement. Maximum punishment is life imprisonment, which is as draconian as it gets under our criminal law. I had a look at some legislation, the Assisted Human Reproduction Act. If you look to the criminal punishments that exist within that act, it seems that most of the provisions for illegal transactions and the illegal use of tissues in the Assisted Human Reproduction Act, as criminal consequences, are summary convictions, five-year maximum indictable offences or, at the most, 10-year maximum indictable offences. These are somewhat connected to the provisions in that act. It would be something I would encourage the committee, and certainly Parliament, more broadly to look at when refining the wording of the legislation.
I’ll leave it at that. Thank you very much.
Dr. Jagbir Gill, Director; Associate Professor of Medicine, University of British Columbia; Transplant Nephrologist, St. Paul’s Hospital, Canadian Society of Transplantation: I am a transplant nephrologist in Vancouver, but I am here today on behalf of the Canadian Society of Transplantation, an organization that represents transplant professionals across the country.
I’d like to say upfront that we had somewhat short notice in this regard. Because it’s a broad spectrum of professionals that we represent, we haven’t had the opportunity to formally address this issue with the membership at large, so the comments I’ll make today are representative of what we believe are the opinions of our membership based on the board of the Canadian Society of Transplantation.
As a professional society, we firmly stand against the practice of transplant tourism and organ trafficking and particularly anyone who coordinates that act, be it brokers or those that profit from that act. We also strongly support the statements outlined in the Declaration of Istanbul, which we have ratified, as they relate to the position against organ trafficking and, more importantly, as they pertain to the importance of maintaining self-sufficiency in terms of transplantation and organ donation within Canada.
We believe that the primary driver of transplant tourism and organ trafficking among Canadians is decreased access to transplantation within Canada. The fact that patients have to wait many years to get an organ transplant is the primary driver. Our sense is that the most effective way to tackle that issue is to tackle the demand issue. The fact is that people are waiting protracted periods of time and organ donation rates could be better than they are today.
We also looked at a few specific issues that we have in terms of the bill. While we certainly support legislation aimed to prevent transplant tourism and organ trafficking, we have some initial trepidation and reservation about legislation that would result in the criminal prosecution of our patients. This is something that has not been overtly assessed on a national level, but based on previous committees and in previous discussions certainly it’s a divisive issue within our community.
As stated earlier, we would rather target the underlying causes behind this issue, which is improving access to transplantation and increasing organ donation, which uniformly will be embraced by the community as well as professional groups.
Related to this, we have concerns about the role of transplant professionals and the impact the legislation may have on that, particularly for a few issues. One is that identifying and accurately identifying cases of transplant tourism is very difficult. There isn’t a standardized way for us to truly determine if someone has travelled for transplantation, which may be legitimate in the context of relatives or friends in another country versus illegitimate in which organ trafficking is involved. That’s something we have clues to, but it’s difficult for us to be able to delineate, as transplant professionals, whether or not that has in fact happened. Therefore, it’s difficult from a reporting perspective.
The other scenario to consider is comparing this to other reportable offences where physicians are in a position to report. If we take, for example, cases of abuse or potential child abuse, those cases typically are to prevent future harm. If we think future harm is to happen, we would report those cases. In this setting, particularly in cases where transplant tourism has already occurred, the harm is already done. That is a different context in which we would be reporting on something that would have to be examined further.
There are a few other considerations. The definition in terms of the financial consideration of the bill is quite broad and quite vague. In order to really get to the crux of the goal of the legislation, that would have to be clarified and refined a bit further to be much more specific as to exactly what we’re talking about in terms of consideration. An example where that may be tricky is that there are countries where there are regulated systems of payment for organs. Iran is an example of that. It is probably the sole example of where Canadians of Iranian descent may go to Iran and illegally partake in transplantation where there is exchange of money for kidneys. That is legal in that country, so it’s unclear where we would sit with this legislation in that type of a setting.
In terms of where we currently are with our professional standards and how we deal with this matter, I refer you to the policy statement of the Canadian Society of Transplantation and the Canadian Society of Nephrology on organ trafficking and transplant tourism. I won’t go through the details, although we can go through them in the question and answer period. It essentially summarizes our legal and fiduciary obligations to patients who participate in transplant tourism, both before and after transplantation. It provides recommendations, not prescriptive, regarding the pre-transplant evaluation process, what we should be informing our patients and educating them about, and how to handle patients who return after engaging in suspected transplant tourism after the fact.
I have time, I can highlight a few of the major issues. In terms of pre-transplant counselling, the document proposes that all transplant candidates should be educated about the dangers and ethical concerns regarding transplant tourism and organ trafficking. If a physician has a personal objection to the issue, we are within our rights and we actually are mandated to inform patients that we have a personal objection to transplant tourism. We have to inform them how this may impact our willingness for their elective care after they engage in this practice.
While physicians have a responsibility to do what is in the best interest of their patients, we are not obliged to conduct investigations or evaluations of patients for transplantations that will occur elsewhere. It’s only for the transplantations that will occur locally. We are not obliged to provide medications. In fact, we are not allowed to prescribe medications if we’re not to be directing that care. Those issues I think already exist.
A trickier situation is in provision of medical records of patients who may want to use their medical records and evaluations that have happened here when they go away. Most laws are very much in favour of the fact that we have to provide a patient’s medical record to them. There is the exception that if we feel that harm will be done to a patient or to a third party, we can refuse that. In that policy statement it’s proposed as something that individual physicians can explore within their own centres, depending on the scenario, if they feel there’s potential harm to either the patient or a potential donor from whom the organ would be taken.
Lastly, I’d like to briefly tell you a bit about post-transplant obligations that we feel we have with patients. Without question, we are obliged to provide emergent care to all patients in Canada, and that has not changed. For non-emergent care, we are also obliged to provide that care. However, we are allowed to defer that care to a different physician.
In the context where we have a personal or professional issue with what a patient has done in terms of transplant tourism, we are within our rights to arrange for patients to be followed by a different program, as long as they have the necessary skills to do that and we will make arrangements for that to happen. We will have to assume their care up until that time.
I’ll conclude there, and we can take questions. Thank you very much.
The Chair: We have from the United Nations Office on Drugs and Crime, Aimée Comrie, via video conference. We will hear your testimony now, please.
Aimée Comrie, Crime Prevention and Criminal Justice Officer, Human Trafficking and Migrant Smuggling Section, United Nations Office on Drugs and Crime: Madam Chair and honourable senators, I would like to begin by thanking the Standing Senate Committee on Human Rights for this invitation. May I add that, as a Canadian lawyer born in Saskatchewan and having studied in Quebec, this opportunity is indeed a tremendous honour. I commend the Senate for considering the important issue of how to reduce human trafficking for organ removal, a heinous crime that targets the most vulnerable segments of society.
By way of introduction, I have more than 15 years of experience in investigations/prosecutions, research, policy and program development at the international level addressing international and transnational crimes, with a particular focus on human trafficking in Asia, Africa, Eastern Europe and elsewhere. I currently work at the United Nations Office on Drugs and Crime, or UNODC for short. UNODC is the lead agency of the United Nations to prevent, suppress and punish human trafficking, and is the custodian or guardian of the United Nations Convention Against Transnational Organized Crime and its protocols on trafficking in persons and migrant smuggling, which Canada has ratified.
It is important to note that these international instruments have reached near universality, with 173 countries having rati to translation fied the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children to date.
In my brief remarks to you today, I will aim to do three things: first, provide an overview of the legal and policy framework at the international level; second, flag some potential issues in Bill S-240 and its inevitable interface with Canada’s anti-trafficking national and international commitments; and third, highlight some practical tools to strengthen the investigation and prosecution of this crime.
Let me begin by confirming what you may instinctively know. Human trafficking for organ removal is a crime for which reliable data is extremely scarce. In all forms of trafficking, victims are typically reluctant to come forward. They may not seek help, or they do not wish to be identified for good reason. They may be threatened by the traffickers. They may be in an irregular situation in a foreign country. This is even more so in the case of trafficking for organ removal. UNODC is mandated by the General Assembly to report every two years in a global report on trafficking in persons. We have received reports of trafficking for organ removal. We understand this to be a small fraction of the total reported cases of trafficking, which is definitely the tip of the iceberg when it comes to this form of exploitation.
Nevertheless, I can point to several important trends. First of all, no region or country is immune to this form of trafficking. Organ removal networks are highly organized and transnational. They are motivated by and yield high profits. Men, women and children on the move, whether asylum seekers fleeing conflict or migrants seeking to improve desperate life chances, are particularly vulnerable to human trafficking.
Organized crime networks know this and target victims for their vulnerability. They target Indigenous and minority groups, women and children, socially marginalized or excluded groups and, above all, persons facing serious economic hardship. The typical victim, if I can say so, has low access to justice, does not have access to regular health care, is not in regular employment, is frequently illiterate or does not have a higher level of education, all of which make the concept of obtaining informed consent highly problematic.
Indeed, most victims of human trafficking consent or agree to the exploitation. This may surprise you. If you were to google human trafficking right now, you would most definitely come across images of chains and handcuffs; but the sad truth of the matter is that most victims of trafficking go willingly with their exploiters. They are duped by false promises, or they are coerced psychologically or economically.
This raises a complicated question when we’re speaking about informed consent for organ removal. I have met victims in South Asia who have apparently consented to having an organ removed. Within the legislative framework on human trafficking, that consent is irrelevant. The very strong human trafficking legislation that Canada has been put in place and the international legislative framework state very clearly that consent to your own exploitation, in the form of human trafficking, is not a defence to the crime. You cannot consent to your own exploitation.
The problem there is that traffickers are not only using kidnapping and using of force, but they’re using these subtle means. How will law enforcement in Canada realistically be able to ascertain whether or not consent is truly informed, given the fact that victims may put themselves forward as apparently consenting?
Moving on to my second point, I would signal a few issues from the draft legislation. As I mentioned on the issue of informed consent, this bill is attempting to target organ trafficking, which is actually a separate regulatory statutory offence currently in Canada, alongside human trafficking for organ removal that already exists in legislation. Nevertheless, as proposed, organ trafficking legislation will inevitably apply to situations of trafficking for organ removal. In Canada, human trafficking for exploitation is defined in section 279 of the Criminal Code. This includes subtle means such as where people have feared for their safety and where they were deceived or coerced. I would suggest, at the very least, if this bill sets out to target organ trafficking it should definitely reference the important language of consent in the human trafficking legislation in Canada.
Furthermore, the question of how to assess the criminal liability of organ buyers or organ recipients is quite complex. From the perspective of the United Nations, I can tell you that there is no strong guidance on this issue. Different countries have approached the issue from different angles. In the Medicus case from Kosovo, which was referenced by an earlier panel, the star witness for the prosecution was actually a Canadian gentleman who had purchased the organ. It is clear, for example, that his cooperation was key to the success of that case. What’s not clear is whether criminalizing their liability would have effect on their potential collaboration should there be an investigation.
If all forms of trafficking and organized crime, the United Nations strongly encourages countries to go after organized crime groups and not only the lower-level fruit, which in this case may be desperate people who are on waiting lists. I must signal to you an important risk. One of the key modus operandi of traffickers is to recruit former victims and coerce them into being part of the criminal network. Then these persons can be subject to prosecution. Within the context of human trafficking for which there are strong human rights principles established by many different UN agencies and international instruments, we have the principle of non-criminalization or non-punishment for victims. Victims should not be prosecuted for a crime they were forced or compelled to commit as part of their trafficking exploitation. In this situation it’s not clear to me with the draft legislation how this could apply in that situation.
I would suggest possibly looking at other provisions that could be possible. For example, for a potential recipient, you may want to think about having them prepare a declaration that there was no valuable consideration or profit gained from their procurement of the organ in another country.
To move to my last point, the keys here are partnership and cooperation. Let’s face it. Currently it has been a challenge. Medical professionals are not normally speaking with law enforcement and working with NGOs. These are typically separate groups of professionals who are not regularly sharing information and cooperating. In fact, that’s what is really needed for Canada to be able to prosecute this crime extraterritorially.
Perhaps I could point to a few practical tools that we developed. We have an important assessment toolkit which will allow countries to assess the state of the art of the criminal justice response in a country. We have important financial and cyber-crime investigation tools that may also be relevant, given the high level of profit. We’re also developing a very new virtual reality investigation tool for law enforcement that would allow a police officer to walk through a potential crime scene in a transplant setting and identify the relevant forms of evidence.
I will stop here and remain open for questions. Thank you.
Senator Ataullahjan: I thank all the witnesses for their testimony. You feel there are issues with this bill, but we also heard over 12 years from Conservatives and Liberals in various governments and in opposition. Everyone has been trying to pass some sort of legislation, and nothing happens. What are the alternatives? Should we let everything continue the way it is?
Dr. Gill, you said that if a patient gets a transplant, the harm is already done. I am not specifically talking about targeting patients, but don’t you think there should be some sort of guidelines for people who are looking for transplants? If they think before they go to brokers, if they think before they go abroad or if they think they’re breaking the law, won’t that be a deterrent?
You all bring good points, but I feel this is a starting point. We seem unable to get any legislation going. When I was researching, the RCMP said that there was no law in Canada banning Canadians from taking part in transplant tourism. Don’t you think it is a good start instead of letting things continue the way they are?
Dr. Gill: I have a few comments on that. Certainly, it boils down to how we could best deter this practice. I agree with you. We don’t want this to continue as it is. Having legislation that will criminalize this activity is not entirely unreasonable, but we need to have the protections in place to ensure that patients are actually made aware of the legislation. That’s my biggest concern.
If we look at the way transplantation services are delivered across the country, it is extremely variable. There are many different physicians, often not transplant physicians, that are engaging with patients. Vancouver happens to be one of the largest sites where we encounter this issue. I would like to say that the magnitude of this has decreased quite substantially in the last seven years. We looked at all of our transplants between 2000 and 2007. We identified almost 100 patients, which was roughly 10 per cent of the transplants we were doing at that time. That was very sizeable.
Since then the Declaration of Istanbul has come up. There has been a lot of work done globally to try to deter this practice. The policy statement we put forth has actually forced us, as transplant professionals, to educate patients on the risks. The highlight is that this is a risky procedure for patients themselves. There is an increased risk of infectious complications. The outcomes are inferior when they go abroad and, in my opinion, that has made a significant dent.
I have two pragmatic concerns about legislation that will criminalize it. One is that we are already in a place where we are not getting adequate reporting of this practice across the country. It’s something we’re trying to get. If there is now legislation where there is fear for prosecution of patients, that reporting structure needs to be refined. There will be an inherent desire not to report if the consequences are so dire, particularly given the punishments outlined in the bill.
The other concern is ensuring, if we are educating patients prior to transplantation, that all physicians that will touch this patient along the path need to be made aware. About a third of the patients in Vancouver that engaged in transplant tourism, in our study looking at 2000 and 2007, had not even been assessed by the transplant program. That’s an entirely different pool of physicians that we need to engage in the process.
Those are my pragmatic concerns. I am not against a disincentive, per se, as a stance to say this is something that should not be done. I am in support of that. It’s just the logistics of trying to make sure we don’t end up with unintended consequences as a result.
Senator Ataullahjan: What you’re worrying about is the risk to the recipients, but where does that leave the victim donors? Who looks after their interests?
Dr. Gill: I believe the risk is significant for both the donors and the recipients in this practice. The recipients are also unaware of the risks they face when they engage in this because, as I stated, patients don’t do as well. They end up with transplants,but they often come with many other significant complications.
My view is that if we are to criminalize this activity, patients need to be very clear on what legislation exists. That needs to be communicated in a very clear way across the board. The difference and the challenge in this situation are that these are generally desperate people who are making a very bad decision. My concern is that typically it is not an informed decision that they’re making.
I view them as victims in this as well, quite frankly, and I think that is the struggle you’re hearing in terms of where we stand.
Senator Ataullahjan: If you heard part of my testimony, that was the concern. You could say that desperate people resort to desperate measures. We need to get the word out if this legislation goes through in any form or if it is amended.
Senator Cordy: Thank you very much to all three witnesses. It has been a great learning experience this morning to be hearing about these things. I think the term desperate people applies to those who want to get organs. Unfortunately they’re dying. In many cases there are those who are desperate for financial reasons or have no choice and are being killed for their organs, as we heard from previous witnesses.
One of the things we heard about was that we have a lot of anecdotal evidence but not numbers. Unless you’re in the situation where you’re looking for an organ, you’re a transplant surgeon or you work in a hospital, I do not think Canadians are aware of how prevalent it is. We heard earlier that 50 people had gone from one doctor in Toronto alone for transplants to China, so we know where those organs came from.
What do we do? Mandatory reporting was suggested. You seem to think that wouldn’t work because of the harm it could cause to the person who received the transplant. I don’t think anybody wants people going to jail for long periods of time for doing something they were desperate to get done.
How do we reconcile it? How do we get the data without putting people in positions where they will not talk about it or give information?
Dr. Gill: I actually think mandatory reporting would work in terms of getting at the numbers. It is something that is required. I am concerned that mandatory reporting in the context of criminal legislation will get a bit dicier, and you will face more resistance from the physician groups.
However, mandatory reporting is critical as a first phase to get at the scope of the problem. The act, in and of itself, mandates and puts in place a series of steps which requires that education piece to happen, so we have to obtain that information. There are mechanisms in existing registries, for example, to actually implement mandatory reporting, at least on a broad scale, to say whether a transplant occurred outside of the country. Even that can be robustly captured. I do actually agree. I think that would be important.
Senator Cordy: Mr. Lamb, you spoke about definitions and I asked questions earlier about informed consent. Are you suggesting that the bill have a section defining informed consent and being reckless? Some bills do have definition sections, actually.
Mr. Lamb: Yes, I think so. The way it is drafted, as I read it, you are to incorporate it into the Criminal Code. Section 240.1 is simply added into the Criminal Code, which has its own definition section in section 2.
Criminally speaking, the concept of informed consent implies somebody not being knowledgeable of the consequences. That’s my understanding in somewhat layman’s terms. I would probably defer to Dr. Gill. It is something that’s very important to physicians.
If a criminal act is actually committed, you can’t consent to it if you have been duped, if you’re unaware or if you have been defrauded. Of course, I said to look at the express definitions in section 273.1 for the meaning of consent with regard to sexual assault. There was a time when there wasn’t a very robust definition, when consent was vitiated in the Criminal Code up until the 1980s. They changed that to broaden the area where consent would disappear as a result of how a person was engaged in the sexual activity. For example, when someone is in a position of trust or authority, you simply can’t consent if it is established in the context, obviously, of a criminal prosecution.
It seems to me that the language of informed consent doesn’t exist in our body of jurisprudence. If you research our criminal case law, there is not a robust examination of that concept. It’s just framed differently in the Criminal Code. If you look to what’s already in the Criminal Code, it would be of assistance. Maybe it would be changing the language itself from informed consent to simply consent. If that consent is brought about as a result of criminal action, fraudulent action, or by someone in a position of authority or power over somebody else, then that consent doesn’t exist.
Senator Pate: Thank you to all the witnesses. The previous panel talked about the legislation in Taiwan as being a model or a best practice. I am curious to hear from all of you what you think about that.
In terms of your work, Ms. Comrie, in particular, and the comment you made about the toolkit, what is your assessment of the proposed Canadian legislation? In what ways could we improve this legislation?
Perhaps you would care to comment on this point. There is another bill coming forward. It is not before us yet. It deals in many cases with the issue of financial transactions that have been seen to be problematic, whether in trafficking of people or trafficking of organs. In the area of surrogacy it is now coming up. I am curious as to how you see that impacting these sorts of issues as well.
Ms. Comrie: With regard to the Taiwanese law, I must admit that I would need more time to study it in detail. I am not so familiar with it.
Returning to this draft legislation, I applaud the effort and believe it is not only an important issue from the perspective of the United Nations, but we see worldwide a consensus growing among member states. There was also a General Assembly resolution on this issue from the fall of 2017. As well, there were several summits held by the Vatican, convening all kinds of faith leaders and civil society groups.
We see a convergence in terms of the interest in addressing this serious and heinous crime. I applaud and support this effort. I believe there are some inconsistencies with Canada’s existing national and international human trafficking framework. Arguably, all the situations described so far today can be covered by the existing human trafficking for organ removal legislation, both the national legislation and the international provisions. What is interesting about this bill is definitely the focus on the financial transactions, which could be very useful for a prosecution. We may want to look further into that issue.
I do concur with Mr. Lamb about the reservations on the informed consent language since, as he mentioned, it is not currently defined in the Criminal Code. I would propose that any reference to consent must include a cross-reference to the fact that this consent, therefore, should be free from fraud, deception, coercion, and abuse of position of power and trust, since these are the means of human trafficking already listed in the Criminal Code.
With regard to moving forward in terms of data, it is extremely difficult to collect this data and to better understand the problem. Obviously, government reporting is critical. We at UNODC receive reports from the government. We analyze them, but it’s very difficult to come to some kind of global figure. Definitely there is a need for greater research and cooperation among these different sectors of people so that we can have a better understanding of the crime pattern.
The Chair: Would either of you like to respond to Senator Pate’s question?
Mr. Lamb: Very briefly, Senator Pate mentioned surrogacy as an issue and connected it to financial transactions. I think I am correct in understanding that is included in the Assisted Human Reproduction Act. As I look at the draft legislation with regard to financial transactions, it seems to me it might be something because it has included the same punishment for the financial transactions.
Of course, we know about financial transactions in relation to some human reproduction issues, certainly in the United States. It’s my understanding that although it is illegal to buy and sell gametes in Canada, you can buy and sell them in the U.S. I believe Canadians can and do buy sperm and eggs from the U.S. market as it is right now. The broad definitions of tissue would capture that. It would also capture those concepts which, as I understand, people are doing right now in this country.
In terms of how it is structured as legislation, the financial transaction may have to be dealt with separately, both in terms of punishment and in terms of the definitions of what’s captured under that Criminal Code section. It’s something to look into and study further.
Dr. Gill: I’d have to review the Taiwanese legislation in more detail before I could provide a good answer on that issue. I can provide that in the future.
In terms of the financial considerations, each province has a Human Tissue Gift Act which does prohibit the sale of organs or essentially any valuable consideration in terms of that. That has fairly recently been harmonized across most provinces. To some extent that legislation does exist already. That’s what we have been operating under in terms of the presumption of that right now.
Senator Ngo: I want to follow up on Senator Pate’s question with Ms. Comrie and with Mr. Lamb.
In your opinion, then, compared to international standards, is the current state of Canadian law on trafficking of human organs and tissue too soft compared to international standards? What do you think?
Ms. Comrie: From the perspective of the United Nations, we feel that a national legislation should be owned and driven by the government. When requested, we’re happy to give our opinion.
In this case I would say that Canada enjoys very strong human trafficking legislation. We have followed it since it was first initiated. There have been several very good amendments which clarified in more detail in 2013, for example, the exact definition of exploitation. The removal of organs has always been included as a form of human trafficking in the Canadian legislation, which is not the case in the United States. In the United States they are now considering adding the removal of organs as a form of trafficking, but it does not yet exist. From that perspective, I think there is a strong framework. Sometimes law enforcement and prosecution are reluctant to consider using the framework of human trafficking.
It may seem complex. It may seem transnational. From UNHCR’s perspective over the years, the longer the period of time since a country has ratified the protocol and put in place legislation, we see a progressive increase in the number of cases coming forward. We do interesting work bringing together investigators and prosecutors across different countries in joint investigations to promote that cooperation.
Ultimately, as it was said earlier by an earlier panel, the goal is to target the brokers. We are not looking for the low-hanging fruit. We are not looking for the desperate patients in Canada or indeed in other countries. We are certainly not looking to prosecute victims or donors who have not given their informed consent. What is left in the middle are those very organized criminal groups. Here is a spectrum of modus operandi. This crime is occurring, on the one hand, in listed clinics in back alleys with very little equipment, usually just for kidney transplants, all the way to the most sophisticated hospitals that you can think of in the world with proper documentation, all of which is fraudulent. There is a spectrum within the modus operandi of this crime which will be very challenging.
In sum, I would say the Canadian legislation on trafficking for organ removal is strong. I know there is not yet a criminal prohibition on obtaining an organ for profit, which in a way is the goal of this bill, but I personally would like to see maybe a shift in the language.
Mr. Lamb: It’s not something I’ve been able to look into, given the time frame I had with regard to a comparison with other legislation whether in Europe or in the United States even. I wouldn’t really be able to give you an informed answer with regard to internationally where we stand.
I could say, just in passing, that there’s always a law of unintended consequences that attaches to prohibition. Of course, by its very nature, criminal law is prohibition. Sometimes we need to ask ourselves whether there is something short of prohibition that can work. Obviously, I would use the simple example of marijuana in this country, which for years led to the proliferation of organized criminal groups engaged in its distribution. As we move away from the prohibition of that conduct, the hope is that it will lead to the disappearance of organized crime groups. Perhaps that’s something that has to be considered as we move to put in place criminal legislation with regard to this issue.
Senator Cordy: Mr. Lamb, when you were speaking about the punishment aspect, that is being liable to imprisonment for life, you said that might be a bit harsh. For the legislation, as written, I think you suggested that it should perhaps be a maximum from five years or 10 years. Would you expand on your earlier comments?
Mr. Lamb: As I looked at the punishment for all of the listed offences, whether it is a financial transaction or if it is being a party to an offence, all of the outlawed activity in the drafted legislation leads to an indictable offence that carries with it a maximum of life imprisonment.
I looked at the other legislation out there, particularly the Assisted Human Reproduction Act. It is Canadian legislation that covers much of the same territory, but with regard to gametes and surrogacy it seems that it has multiple options. Obviously, the Canadian Parliament tabled legislation recently that seeks to hybridize most of the offences under the Criminal Code. Hybridization in and of itself gives prosecutors an option to pursue a case by way of summary conviction or by way of indictment. As a starting point, the punishment might be something that, by simply adding a hybrid option to it, would allow prosecutors to assess the specific facts of the case to determine whether they proceed summarily or by way of indictment. Summary conviction offences will carry a maximum penalty of two years in a provincial detention centre. Indictable offences can carry anything from up to whatever the maximum punishment articulated by the legislation lays out. That’s one option that can be considered to give broader discretion to prosecutorial authorities.
In terms of life imprisonment, I am sure there are situations in this type of activity that could attract particularly the high-level organized crime, as mentioned by Ms. Comrie. It is one of the goals of the legislation. It may be something that could carry life imprisonment. A multitude of different moral culpability, if you will, exists in the context of what’s drafted here. A more robust punishment section should be considered, with perhaps maximum penalties that reflect what we already have in the Assisted Human Reproduction Act, whether that’s five or 10 years. Under criminal legislation, we see five, 10 and 14 years. When you get to the 14-year maximum, you’re at the highest moral culpability and the gravest of crimes before you hit life imprisonment.
Senator Cordy: Going back to the financial transaction aspect, would the definition of tissue include egg and sperm?
Mr. Lamb: That is my understanding. It’s not defined in the Criminal Code per se. I certainly would defer to the doctor sitting beside me. As I see tissue, I understand it includes gametes, so egg and sperm would be included in that.
Dr. Gill: The definitions exist for different reasons, so I think it could be interpreted as broadly as that.
Senator Cordy: It is pretty broad.
Senator Ataullahjan: Is informed consent defined in other instances where it’s used in the Criminal Code? I refer to Bill C-14 on assisted dying where informed consent was used and it wasn’t defined.
Mr. Lamb: That is right. It is recent legislation. There is no definition of informed consent in the Criminal Code. I raised it because I know, from dealing in other aspects, other quasi-criminal and other legal matters for informed consent, that it arises all the time in our regulated health professionals acts across the country and in our colleges that regulate health professionals.
Informed consent is a very important concept, but it’s not something for which you see any jurisprudence. It may come in terms of ad hoc definitions arising as a result of the assisted dying legislation that has been added to the Criminal Code in recent times. Right now it doesn’t, and that’s why I think the word “consent” in and of itself can empower all of that criminal law jurisprudence. If you use the word “consent,” you cannot consent if you’re induced to consent as a result of somebody in a position of trust or authority, or if there is any sort of fraud or that type of thing. That’s why I raise that.
Senator Ataullahjan: I have one other point. When we’re talking about punishment, the sentencing of offenders, according to me, will remain with the discretion of a judge.
Mr. Lamb: Of course. It’s a highly individualized process, but at the end of the day a judge will be informed by the maximum penalty that’s out there.
The Chair: Thank you to all three of you for taking time to give evidence to us today on this bill, and thank you senators.