Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 27, Evidence - February 26, 2015
OTTAWA, Thursday, February 26, 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 10.32 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Welcome, colleagues and invited guests, and members of general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
For the first hour of today's meeting, we are continuing our deliberations on Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons), which proposes to provide consecutive sentences for offences related to trafficking in persons and to create a presumption regarding the exploitation of one person by another. The bill also proposes to add the offence of trafficking in persons to the list of offences to which the forfeiture of proceeds of crime apply. This is our third meeting on the bill.
As a reminder to those watching, these committee hearings are open to the public and are also available via webcast on the parl.gc.ca website. You can find more information on the schedule of the witnesses on the website under Senate Committees.
Our witness this morning is Éliane Legault-Roy, Director of Communications for Concertation des luttes contre l'exploitation sexuelle. Ms. Legault-Roy, you have five minutes for an opening statement, after which we will move on to questions.
[Translation]
Éliane Legault-Roy, Director of Communications, Concertation des luttes contre l'exploitation sexuelle: Good morning, senators. Thank you for the invitation to appear before this committee.
I am going to talk to you about the Concertation des luttes contre l'exploitation sexuelle (CLES), particularly why it supports Bill C-452, and the importance of bringing together the struggles and the legislation, both in their application and their scope with respect to prostitution, exploitation and human trafficking.
CLES, which brings together organizations and people critical of the sex industry, was created in 2005. Our organization has some 50 group members, over 150 individual members and many sympathizers who believe that a world without prostitution is possible. CLES' work can be divided into three main areas: direct services to women who have been involved in prostitution, awareness and training, and lastly political action.
In the context of our political engagement, we have been very involved in the process to change prostitution legislation, and we testified in spring 2013 in support of Bill C-452 during the hearings held by the Standing Committee on Justice and Human Rights.
CLES supports Ms. Mourani's bill, which provides for exemplary and consecutive sentences, as well as the seizure of the assets of pimps and human traffickers. This piece of legislation strongly asserts that the exploitation of women who are imported, exported, sold and resold for the profit of men in the case involving human trafficking, and recommends that these serious crimes be punished by applying a clear sentence.
As well, the addition of section 279.01, of the presumption relating to the exploitation of a person, is also a clear measure that favours protecting women, who are the main victims of trafficking in Canada. The reverse onus removes an enormous burden from these women. They are often afraid of retaliation if they testify and prefer to stay quiet rather than have to relive their suffering when it comes time to testify. In addition, since the majority of trafficking victims are from the sex industry, we feel it is consistent that section 279.01 be harmonized with section 286.2 on prostitution.
We feel that trafficking and prostitution are two problems that cannot be separated. In their report entitled La traite des femmes à des fins d'exploitation sexuelle: entre le déni et l'invisibilité, researchers Sandrine Ricci, Lyne Kurtzman and Marie-Andrée Roy cite the demand for paid sex among the determining factors of the trafficking of women.
I will quote an excerpt from the report:
Users of paid sex contribute to the growth of trafficking and prostitution. Given the endless demand, the trafficking of women and girls for sexual exploitation is one of the most lucrative activities. It is the third largest source of income from organized crime after drug trafficking and the weapons trade. Male clients procure "sexual services'' without considering the abusive conditions and the exploitation that prevails in the exercise of prostitution. Even if the best "intentioned'' users of paid sex, if they exist, cannot distinguish between women who are victims of trafficking and the others.
In fact, in Canada, where the majority of trafficking is done within the country, the demand for sexual services is present in every community and every province, and is the cause of the displacement of thousands of girls and women within the country. We have also noted that women are sometimes moved great distances to specific regions to meet an increased demand during sporting or other events.
In order to take action on the problem of sexual exploitation as a whole, while knowing that trafficking and prostitution are intrinsically linked, we believe that Bill C-452 must be understood, adopted and implemented consistently with the amendments made to the Criminal Code of Canada through the Protection of Communities and Exploited Persons Act. Bill C-452 will give more teeth to the legislation and will enable the legal system to take on human trafficking. It is important to ensure that legislation on prostitution, exploitation and human trafficking is not just well-understood, but applied, as well.
Through our experience on the ground, we know that many women do not see themselves as victims of trafficking and do not see their pimps as such because they do not understand the legislation. The purpose of legislative amendments, like the ones made to the Prostitution Act or by Bill C-452, is to help victims of trafficking and exploitation. However, they are also a source of confusion for the victims and are too often poorly understood by the organizations and individuals who work with victims. Similarly, we know that many police officers are not familiar with the scope of the current Prostitution Act, and that several prosecutors are reluctant to apply the legislation in cases of domestic trafficking. These gaps must be countered by training the police and the judiciary, as well as by holding awareness campaigns targeting the general public.
As for organizations that help victims of trafficking and sexual exploitation, such as CLES, it is no secret that they are cruelly underfunded and do not have enough resources. As a result, we recommend that, by including human trafficking on the list of offences to which the forfeiture of proceeds of crime apply, the amounts that would be seized could be reinvested in victim support programs and in organizations that help victims who have been involved in prostitution and trafficking.
To conclude, we also think that, in order to show our solidarity with women who too often do not have a choice and to provide true protection of prostitutes, they should be fully decriminalized.
We hope that the Protection of Communities and Exploited Persons Act will soon be amended to reflect this. In the meantime, we congratulate Ms. Mourani on her initiative, and we hope that her bill will be passed and applied consistently with prostitution legislation.
[English]
The Chair: We will begin questions with the Deputy Chair of the Committee, Senator Baker.
Senator Baker: Thank you to the witness. Thank you for your presentation. It was very excellent presentation.
I think, by profession, I know you as a political scientist and the author of a much-discussed thesis these days called, I believe, the Possibilities of Terrorism Ethic. Is that correct? You are now deeply involved in this subject that we are talking about and that you gave your presentation on. What led you almost to change professions midstream? Now, I imagine, you are full time at this cause that you have; what led you to make that change?
[Translation]
Ms. Legault-Roy: I was always involved socially during my studies, and I felt it was important to get involved with victims of violence. At the same time, I have a close friend who works in the street with prostitutes. She told me about the realities she faces every day. I came to the conclusion that prostitution was one of the greatest forms of violence and the closest thing to slavery in modern society. It is happening right under our noses. So it is quite possible to take action.
I got involved with CLES as a volunteer, and it eventually became my job because I believe in this cause, and I am passionate about it.
Senator Boisvenu: I have a few quick questions. In your day-to-day work, do you interact with girls and young women who have been victims of trafficking?
Ms. Legault-Roy: Yes, absolutely. We feel that almost all women in prostitution have been victims of trafficking at some point. They have all been moved or forced to perform acts that they would not have agreed to. We feel the two are truly interrelated.
Senator Boisvenu: Do you have exchanges daily, on the ground, with these young women?
Ms. Legault-Roy: Yes.
Senator Boisvenu: Based on their testimonies, what is the biggest problem these girls face in our justice system?
Ms. Legault-Roy: There are a lot of difficulties. They have a lot of obstacles in their way.
Senator Boisvenu: What are the main obstacles?
Ms. Legault-Roy: It is often difficult for them to be recognized as victims of crime. With the change in the prostitution legislation, we are hoping that things will improve. They are often not recognized as victims because people doubt what they say because these girls and women made this choice or because they were in a relationship at the outset.
Being recognized as victims and getting the help that a victim would receive in another case of violence, such as domestic violence or sexual assault, is more difficult. The police forces have established some very good training initiatives to see women more as victims, to help them and direct them to the right resources. However, there is still more to be done. A number of resources are not aware of the specific nature of the problem related to prostitution and trafficking, and they will not know how to properly direct these women or how to receive them.
Senator Boisvenu: We have difficulty getting victims of human trafficking to come and testify before a committee like ours because they often want to remain anonymous.
In the context of your day-to-day discussions or meetings with these victims, how do you think this bill might reassure them and encourage them to speak out more often?
Ms. Legault-Roy: Considering the women as victims of trafficking and exploitation is well-identified in the bill. The reverse onus will be reassuring for women who want to go ahead, knowing that they will not have to testify. It is something we hear often from women who call and who are in a situation they want to get out of. They sometimes refuse to give us their name for fear of being forced to testify. Either they are afraid of their pimp, or they do not want their situation to be made public. Many of them have families and acquaintances who do not know about their situation, so they want to remain anonymous. So that aspect of the bill might reassure them.
Senator Boisvenu: Thank you for being here this morning.
Senator Jaffer: We appreciated your presentation. I have a few questions for you.
[English]
As you know, the presumption of bill is meant to facilitate the job of the Crown to prosecute victims who refuse to testify, which is, as I understand, often the case in offences of this nature. What is your experience when it comes to exploited persons testifying in court?
[Translation]
Ms. Legault-Roy: Since I am responsible for communications in the organization, I do not provide support to the women, personally. My colleagues do. In cases of trafficking in particular, I am not sure what has been done. Like I said, the pimp will often not be charged with trafficking, but procuring instead. We see cases like this before the courts on a daily basis. However, I am not involved with that myself.
[English]
Senator Jaffer: I apologize, I said, "you,'' but I meant your organization, forgive me.
From what I know and what I've heard, one of the reasons for this bill is that victims are often reluctant to testify for whatever reasons, there are many. What is not your personal, but your organization's experience when it comes to getting the victim to testify?
[Translation]
Ms. Legault-Roy: I am not sure I have a good answer for you. Honestly, I do not know what happens on a day-to- day basis when my colleagues provide legal support.
In Quebec at least — and I think the same is true for the rest of Canada — there are specialized centres that provide support to victims of crime. Those people are on the front line when it comes to legal support.
We know that women who have to testify and recount what has happened to them several times experience a revictimization process. We see the impact of these testimonies and this experience on their lives. For them, it means revealing publicly to their children, their families, a potential employer, what they have gone through. It makes them relive a very traumatic experience, which they have often recounted to a caseworker, to an addictions worker and to the police when they filed their complaint. It is very difficult for them to repeat it constantly. Does that answer your question?
Senator Jaffer: Yes, thank you.
Senator McIntyre: Ms. Legault-Roy, thank you for your presentation. I understand that Aboriginal women are overrepresented in prostitution. These women are more often trafficking victims. After listening to what you had to say and reading your brief, I understand that individuals go and get these women in the north and then move them around Canada to specific regions. Domestic trafficking seems to me to be a very well-organized system.
Do you think domestic trafficking is similar to international trafficking?
Ms. Legault-Roy: Thank you for your question. I think they are two similar systems. International trafficking often occurs in Europe where the countries are smaller, where there are a lot of borders and where everything is close together. In Canada, someone may be moved hundreds of kilometres without ever crossing a border. So the women are still being moved, but we don't see it as human trafficking, per se, because they are not crossing any borders. However, the process and the goal are the same, which is to uproot women from their community, distance them from their social network and their families, and make sure that they cannot be traced. The principle is the same in Canada when a woman is taken from Montreal and sent to Winnipeg, or a woman from an Aboriginal reserve in northern Quebec is sent to Montreal.
Senator McIntyre: Because they remain in Canada, they often go unnoticed.
Ms. Legault-Roy: Yes, basically. That is what happens with women who run away or women we are not looking for — or we look for "less'' — I don't know how to put it. For example, if the person is a frequent runaway, no one will notice immediately that she has been moved for the purposes of human trafficking and sexual exploitation.
[English]
Senator McInnis: When a victim of trafficking finally escapes or is assisted and gains his or her freedom, there is a transitional period. How is the system set up for finding a place to live, possibly getting education and counselling? Are we set up properly to handle many of these individuals? Because it wouldn't be enough just to say, "Well, I'm out,'' because they could end up back in the profession.
[Translation]
Ms. Legault-Roy: Thank you for your question. In fact, there is not enough support for women who have been victims of sexual exploitation, prostitution or trafficking. There is a huge need.
There are five of us to do the work in Montreal. Our organization is very small, and we are practically the only one in Quebec doing it. The demand is enormous, and our resources are fairly limited. There are all kinds of programs to help victims of crime, but until recently, it was not clear that individuals who have been sexually exploited were victims of crime.
For example, they rarely have access to the financial support that is given to victims of crime. Despite the Act respecting assistance for victims of crime, they rarely have access to financial support for therapy. These women were very poor when they worked in prostitution. People took all their money, or they had drug problems. When they get out, they aren't any richer; they are poorer. They get no financial support to help them get back on their feet.
Also, there aren't a lot of resources tailored to this kind of situation. These are women who have experienced multiple traumas and may not want to have a male roommate or male landlord.
There could be resources tailored to their specific traumas. For example, perhaps there should be transitional housing for women only. In terms of education, CLES has set up a pre-employment program that started last fall.
It is the first of its kind in Quebec. It does not include much, but we are trying to develop services. We say "pre- employment'' because the women will not get a job at the end of the program. They really have a long way to go, which is why it is a pre-employment program
We are talking about knowing how to be, how to live in society and about re-organizing their lives. There is a very long way to go, there is so much to be done, and the resources are truly minimal. So some improvements there are possible.
Senator Dagenais: Ms. Legault-Roy, thank you for your presentation. I imagine you are aware that many women are brought into the country by smuggling syndicates, sometimes even with forged passports, and they are hired to work as servants in fancy houses in Montreal.
In your brief, you suggest that the police are better trained and are more familiar with the law. What do you expect from police forces?
Ms. Legault-Roy: That is a good question. There are a lot of initiatives and training aimed at changing the mindset, to further criminalize the client or the pimp, and to provide the woman with the resources she needs to straighten out her life. I think there are a lot of good initiatives and that we need to continue in that direction.
Some police forces still lack knowledge about the legislation. Some women say that, after being in contact with the police, they were told that certain things were illegal, when it wasn't the case.
With the new legislation, an adjustment period is needed. Women need to have a better knowledge of the tools and resources they could be referred to by police, of the specific resources for trafficking or prostitution.
Senator Dagenais: Has your organization approached police forces to provide information or at least to establish a link with certain stations? In particular, I am thinking of the SPVM and the Sûreté du Québec.
Ms. Legault-Roy: We do not exchange much information because the women who come to us place great importance on confidentiality. But, yes, we do work in cooperation in places where prostitution takes place. We can exchange information about that. I think you heard from Sergeant Dominic Monchamp.
Senator Dagenais: Yes, that's right.
Ms. Legault-Roy: We work with Mr. Monchamp under the survivors project, which is a very nice initiative that provides training for police officers. Some of the women who participate in that project are also members of the CLES.
[English]
Senator Batters: Thank you very much for appearing in front of us today. You've really helped us to understand from the perspective of victims of human trafficking why this particular piece of legislation is important.
I note that you testified before the House of Commons Committee on Justice and Human Rights in May 2013 about this particular bill and I've just had a quick chance to look at your testimony from that. I'm from Saskatchewan and I note that when you were testifying before the House of Commons committee you made a reference that Aboriginal women in particular in your view are greater victims of trafficking. Could you perhaps tell me a little bit more about that because, of course, that's of particular concern to us in Saskatchewan?
Also, you mentioned something this morning but I would like you give us more detail. You said that reversing the onus of proof in this particular bill will really help these women who are victims of human trafficking, and when you testified before the House of Commons committee you indicated that this is extremely difficult for these women. And you said:
As in rape cases, only a very small minority file a complaint and institute legal proceedings. Of that very small minority, some give up along the way because the process is too difficult.
Could you please give us some more detail about how this particular reverse onus in this legislation would affect the experience of victims of trafficking in the court system with these changes?
[Translation]
Ms. Legault-Roy: It's clear that Aboriginal women are overrepresented in prostitution. They are often involved in the most violent forms of prostitution, if I may put it that way. They frequently work as street prostitutes, and they submit to demands for the most terrible sexual practices that stem from racism, and perhaps colonialism, which lead to them being considered as less than human.
I would say that their involvement in prostitution is a serious threat to their safety, and the fact that they are overrepresented constitutes a specific issue we must tackle in a collaborative manner. While dealing with the prostitution problem, we must do something specifically for Aboriginal women.
As for the difficulties involved in testifying, we very often see the women giving up on court proceedings because the process is too difficult. Not having to testify would help them significantly. That way, they could provide police officers with information and work with them, but they wouldn't have to appear publicly and be questioned in a judicial process. Having their testimony questioned can be very hostile for them.
They are often women who, while they were prostitutes or victims of trafficking, had their trust betrayed, had ideas put into their heads and were manipulated. They already seriously doubt themselves and their experience. Participating in a judicial process, being questioned on that experience and having it doubted is a very trying thing for them to go through. That should be avoided as much as possible.
Senator Boisvenu: Once again, I want to thank you for being here today.
You talked about employability with my colleague. We know that human trafficking is a very insidious crime, as it's based on the fear of being murdered if one should dare speak out. I don't think there is anything more cruel than to dominate people by threatening to kill them. Yet we know that the more those women are kept in a form of slavery by pimps, the more difficult, perhaps even impossible, their rehabilitation and reconstruction become.
There is no doubt that this bill basically aims to encourage victims to come forward. We know that victims — especially victims of sexual assault — fall under the category of victims who come forward the least, but worse yet, that is the category of victims who most often give up during the judicial process, as well as the category with one of the lowest conviction rates.
The statistics indicate that the criminal serves time in prison in about 1 case out of 40. For 1 victim out of 10 who reports a crime, 50 per cent of victims give up on their court proceedings, and barely 50 per cent of pimps are sentenced to life imprisonment. In Quebec, we even recently saw a sentence of two years less a day to be served in the community. To my mind, that's not a sentence.
I'll come back to my question. Will this bill lead to more women coming forward, but especially more women doing so quickly? When a woman reports such a crime, her life is turned completely upside down. Our legislation will help convict someone, but it won't put those women back on their feet, so that they can lead productive lives once again.
In your professional estimate, will this bill enable more women to come forward, but also to do so more quickly?
Ms. Legault-Roy: That's a very good question. I think it will. It certainly cannot hurt, especially if this bill is consistent with the Protection of Communities and Exploited Persons Act. I think that the two pieces of legislation work together very well, especially in the sense of recognizing women's victim status and the unique nature of that crime, which is among the most heinous crimes against persons, as you pointed out, considering the fear, the manipulation and the surrounding issues involved.
By acknowledging that, the legislation may convince some women to move forward more quickly than before, especially if they knew that they wouldn't be told that the situation was their own choice when they went to the police. That was an impediment for many women who were afraid of being told that they chose their situation. Those elements will help women feel safer and move forward.
As for making the sentences consecutive rather than concurrent, the women will often not move forward in their judicial proceedings, since the offender may just get six months, as you pointed out. Therefore, with sentences that are more consistent with the severity of the crime, the women may tell themselves it's worth going through the process.
Senator Boisvenu: I am relying on what you know about the situation and about the victims. Beyond this bill, what can we do to ensure that more women report their assailant? As legislators, where should we focus our efforts — the Criminal Code or some other legislation — to ensure that more women come forward? One of my concerns is the fact that nine women out of ten are doomed to stay in that position. That is unacceptable for a society. What more could we do?
Ms. Legault-Roy: As I said earlier, I think we need to have better exit options after women come forward.
Senator Boisvenu: In terms of training?
Ms. Legault-Roy: Yes, exactly. We would really like amendments to be made to the Crime Victims Compensation Act, as even sexually abused women have difficulty being recognized as victims or receiving support. There are some issues with that, but the situation is even worse when it comes to prostitution. Women are wondering why bother going through all that only for their aggressor to be barely punished!
I think we need to establish a more consistent and supportive process that would provide the woman with something, not in terms of compensation, but because she will need psychological support, a job and housing. Is there anything for her in the process? Will she receive support from beginning to end? It's not worth it for her to file a complaint if she is to be left to fend for herself afterwards. That aspect of the legislation should be improved.
[English]
Senator Jaffer: I found listening to you very enlightening, and I thank you for that. There are many questions that I would like to ask you.
One question is this: One of my frustrations being on this committee is that we pass legislation, but we don't put resources to that legislation. From what I hear, going to court and being recognized for what's happened to you is only part of it, but there is the whole part of getting out. How do you then integrate back into society? This is just the first step of a hundred steps.
Since your organization works with victims, can you tell us: For government, if we were serious about dealing with these issues, what would be the comprehensive way we could deal with it? This would be one part, but what else needs to be in place to get the person to stop being a victim and be part of society and get away from being trafficked?
[Translation]
Ms. Legault-Roy: That's a very interesting question, as I can share all my ideas — even the craziest ones — to help women.
It would help a lot if specific centres or resources were created and made available in the same location. As I have been repeating since the beginning, it's difficult for women to tell their story. Often, they may be experiencing domestic violence, but they may also be victims of trafficking at the same time, in addition to having a substance abuse problem. They want to file a complaint with the police, but they have to tell their story four, five or six times to different people.
So it could be beneficial to concentrate efforts and resources in one place. It would also be a good idea for stakeholders from various backgrounds to collaborate more. Psychological support is really important. There was a study on the needs of women who have left the sex industry or want to leave it. Their needs in terms of physical and psychological health are very high. Therefore, it is important to make specialized medical and psychological resources accessible to those women, as they are often very poor and those services are expensive — certainly when it comes to psychological assistance — and there's often a two- or three-year waiting list. It would be great to make that support more accessible.
Yes, I think that, when it comes to employability, certain initiatives should be undertaken because the women often have a 10-year gap in their resumés. That makes it very difficult to find a job. They don't really have any skills, so they need help to get back into the workforce, so that they don't remain poor their whole lives. Managing to get out of prostitution shouldn't condemn them to poverty.
[English]
Senator Jaffer: When I have spoken to women who have been victimized, they say to me that they have every intention of getting out, but, first of all, there's the psychological. They don't have the self-esteem, as you've said. The second thing is what you've already emphasized, to find a job, because they have very limited skills. So, if we were serious about this, we would have to have a comprehensive approach, rather than just passing bills. You would agree with that, wouldn't you?
[Translation]
Ms. Legault-Roy: Yes.
[English]
Senator Jaffer: My other question: You said that you're concerned that the victims don't feel that there is appropriate sentencing meted out to people who are found to be trafficking. What do you hear from victims as to what they see as an appropriate sentence?
[Translation]
Ms. Legault-Roy: We hear things that can't be repeated. Frankly we have never talked to the women about the type of sentence they would be comfortable with. What we generally hear is that the women don't feel that those crimes are taken seriously in the justice system, either at the beginning, when they file a complaint and are disbelieved, or at the end, when repeat sexual predators are given sentences seen as "treats.'' There is an overall impression that those crimes are not taken seriously enough, but we have no sentences to suggest.
[English]
Senator Jaffer: One other thing that often comes up is that the reason victims don't want to testify, or don't even want to be part of the process, is their own safety. For women who have been abused in a conjugal relationship, there are safe homes. Does your organization provide safe homes, or does the police help in providing safety for these women while they are waiting for the court process?
[Translation]
Ms. Legault-Roy: There are only five of us. So we cannot provide services 24 hours a day. However, over the long term, we want to set up a safe house to ensure a minimal emergency service. That's not currently possible. I think the Maison de Marthe, in Quebec City, sometimes provides housing services. That's not a specific service that exists. So the women often find themselves in homeless shelters, where they come in contact with either men who solicit them or women who are still in prostitution. Therefore, they may be encouraged to prostitute themselves. That's not ideal. We need specific resources, so that the women can be safe in a place other than their home. Police forces provide those women with some sort of security, including a police car parked close to their home during legal proceedings. However, I don't think a service is provided systematically to protect the women.
Senator McIntyre: Based on what you've said, Ms. Legault-Roy, you seem to be in favour of the bill because of its strength, especially when it comes to presumption, consecutive sentences, the definition of sexual exploitation and the forfeiture of proceeds of human trafficking. Moreover, the bill is consistent with section 286.2 of the Criminal Code regarding prostitution. Is that right?
Ms. Legault-Roy: Yes, it is. We are very pleased with that section, with the proposed legislation on prostitution. The two should be read together. This is an additional step in the legislative process to fight against prostitution and human trafficking.
Senator McIntyre: There is a nice congruence between the two.
Ms. Legault-Roy: Indeed.
Senator McIntyre: Thank you, Ms. Legault-Roy.
[English]
The Chair: Your testimony has been helpful to the committee's deliberations. It is much appreciated.
We will now move on to clause-by-clause consideration of Bill C-452.
Before we begin, we do have officials from Justice Canada whom I've asked to come to the table to answer any technical questions. I know there were a number of issues that arose yesterday when the Canadian Bar Association witness was here and I thought, prior to moving into clause by clause, it might be an opportunity for members to pose questions to officials which may clarify some issues or questions you might have before we move to clause by clause.
Senator Batters: Thank you very much for being with us today and helping us with this particular piece of legislation.
We had testimony yesterday from the Canadian Bar Association that raised questions about the constitutionality of this particular piece of legislation, specifically about the reverse onus clause that exists in it. Could you provide us some information about that and what your particular legal opinion is about the constitutionality of this particular bill?
Nathalie Levman, Counsel, Criminal Law Policy Section, Justice Canada: Thank you for that question. Just to clarify, we are talking about an evidentiary presumption that Bill C-452 proposes, which is similar to an evidentiary presumption in Bill C-36 that relates to the new offence prohibiting receiving a material benefit from the prostitution of others. It's also similar to its predecessor in subsection 212(3), which was repealed by Bill C-36.
Evidentiary presumptions are different from reverse onus provisions in the sense that, although it of course allows a prosecutor to prove an essential element of the offence by leading evidence of a related fact — in this case, living with or being habitually in the company of a particular person — all that the accused has to do to rebut that presumption is to point to evidence that would raise a reasonable doubt as to either the presumed fact — so what is in the actual element of the offence — or the substituted fact — the living with or being habitually in the company of.
We know that the 1992 Supreme Court of Canada Downey decision upheld subsection 212(3) under the Charter. They did find it to be an infringement of section 11(d), the right to be presumed innocent, but found that the infringement was justifiable under section 1.
We know that section 1 analyses are very context-driven and always involve balancing of often competing interests. When you look at the Downey decision, the majority decision, you will find them referring a lot to the Fraser Committee and the Badgley Report, which were released in 1985, several years prior to the decision in Downey. They were making findings about the vulnerability of victims — in this case, prostitutes — and their reluctance to testify due to legitimate fears of reprisal from their pimps and people who were controlling them.
If a similar provision were to come before the courts today, I would imagine that more recent evidence in that regard would be considered in determining that presumption's constitutionality. I would point the committee to the technical paper for Bill C-36 that was released by the Department of Justice, which refers to a lot of that evidence and substantiates some of the conclusions that were drawn in Downey regarding the vulnerability of people who were subjected to prostitution, as well as people who were subjected to human trafficking for sexual exploitation.
In regard to the contextuality of this analysis, I would also point you to paragraph 79 of the Downey decision. That's one of the very last paragraphs in then Justice McLachlin's dissent. She takes careful pains to note that her findings in respect to the presumption — and remember that she dissented, so she would have found it to be unconstitutional — saying that those findings are not to be applied to the case of child prostitution, subsection 212(2). You may find that instructive as well.
Senator Batters: I have just a couple of other questions on that, given the things you brought up with that.
The person from the Canadian Bar Association who testified yesterday discussed the Downey decision and the fact that the underlying charge detailed in the Downey decision is now one that was struck down by the Supreme Court of Canada many years later, and then a new provision was instituted in Bill C-36, the prostitution legislation. He brought up the fact that the underlying charge dealing with Downey is now not part of our Criminal Code and there are different provisions. Does that impact the constitutionality of the bill we are dealing with today?
Ms. Levman: Well, Bedford was dealing with the constitutionality of the living on the avails offence and found it to be a violation of section 7 due to overbreadth. Those are different constitutional issues than the ones that are considered in the context of an evidentiary presumption, which implicates section 11(d) and, most importantly, section 1 and that contextual analysis that I was referring to.
In Bedford, the Chief Justice was careful to point our attention to the possibility of section 1 analyses being advanced in the context of section 7 violations. I think what we are seeing in the law is that we need to turn our minds to the relevant social science evidence when considering these types of difficult questions that implicate complex social policy issues, and I would say that this does in fact implicate a complex policy issue and would raise all of those considerations. Again, I would emphasize the research that is referenced in that technical paper, which I think would be highly relevant.
Senator Batters: As I brought up yesterday to one of the witnesses, the objectives of the particular legislation that we're looking at, in Bedford, the prostitution offence was being looked at, which, at the time prior to our response in Bill C-36, was dealt with as more of a mischief-type of offence, a lower level type of crime prior to our paradigm shift that we brought forward with Bill C-36. But this particular offence we are dealing with today deals with human trafficking, a significantly more serious offence, and I wonder if you could comment on that.
Ms. Levman: Yes, certainly. The objectives of a particular piece of legislation are always important when it comes to any kind of constitutional analysis, as well as, of course, the provision itself. When you look at the evidentiary presumption proposed by Bill C-452, it becomes clear that in order to invoke the presumption, a Crown would have to prove a number of things: that the accused was not exploited; that the complainant was exploited; and that the accused either lived with or was habitually in the company of that exploited person. Once that has been made out, the accused may point to any available evidence or lead evidence that raises any kind of reasonable doubt as to either the substituted fact or the presumed fact, and that's how the evidentiary presumption in Bill C-452 would work.
Senator Batters: As you just said, evidence that raises any kind of reasonable doubt, so, in your view, it must be a very low threshold, then.
Ms. Levman: I could point you to paragraph 59 in Downey, and that's where the majority goes over those legal principles. I think that the breadth of the presumption would also be factored into any constitutional analysis.
Senator Batters: Could you briefly tell us and those who may be viewing this the underlying reason for putting such a presumption into place?
Ms. Levman: Generally, the objectives of these types of evidentiary presumptions and the ones I've referred to in particular, namely, old section 212(3), new section 286.2(3) and the proposed presumption in Bill C-452, all share the same objective, and that is to recognize that victims in these types of exploitative relationships are vulnerable and have a lot of trouble coming forward to denounce those who exploit them. That makes these offences very difficult to prove, and that is the pressing objective of all three presumptions.
Senator Batters: In essence, it is recognizing an inherent power imbalance between the victims and those who exploit them.
Ms. Levman: Correct.
Senator Batters: Thank you.
Senator Baker: First of all, the three presumptions you were talking about are all worded differently. They have different words. In fact, wouldn't you agree that when we talk about Downey, the presumption that was being adjudicated at the time only included half the words in this presumption that we're looking at today in this bill. Would you also agree with that?
In other words, it didn't include the words:
— proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation.
Those words were not contained in the original section, which was section 195(2) under adjudication in Downey.
Ms. Levman: Yes, that was the original numbering, and it was renumbered as 212(3), so I should have clarified there is a difference in the numbering.
Senator Baker: And a difference in the wording.
Ms. Levman: Yes, and there has to be because the elements of the offences to which the evidentiary presumptions apply are different. So, if you are going to allow a prosecutor to make out one of the elements of the offence, you have to carefully and accurately describe the elements of that offence.
Senator Baker: The essential elements of the offence have to be carefully considered by the court and that's the problem with this. Legal evidence that we've had before the committee is based on these words, not the words that were referenced in any other case. I can understand that you're saying that it has similar objectives. It has the same objective, but the wording is different.
You referenced the Supreme Court of Canada saying:
All that is required of the accused is to point to evidence capable of raising a reasonable doubt. That can often be achieved as a result of cross-examination of Crown witnesses.
That's the sentence you were referring to.
Ms. Levman: Paragraph 59, yes.
Senator Baker: What disturbs me about that is the words "reasonable doubt.'' This committee has dealt with legislation recently in which the words "reasonable suspicion'' are used. When you use "reasonable suspicion'' versus "suspicion,'' there is a different standard. There is a different level of consideration — quite different — in law and in case law.
Somebody can say that you can easily displace this. Well, you know, maybe it's not as easy as people think in certain cases, so wouldn't you agree each case would be facts-driven on its own facts and you can't really generalize as to the effect of a new provision like this in the law?
Ms. Levman: Well, the law has to be applied to every case; that goes without saying. But in terms of evidentiary presumptions, it's sort of the inverse of the regular criminal law standard. Crown has the burden of proving that a criminal offence was committed beyond reasonable doubt. All the accused has to do is raise a reasonable doubt as to whether or not that offence was committed, or the substituted fact was in existence. It's a low threshold, in my opinion.
Senator Baker: Couldn't you say it's relatively low compared to "beyond a reasonable doubt''?
Ms. Levman: It's the inverse.
Senator Baker: It's not at the bottom.
Ms. Levman: The accused does not have to prove on a balance of probabilities, for example, that the offence was not committed, which is the standard for a true reverse onus. The accused need only raise a reasonable doubt or point to evidence that would raise a reasonable doubt.
Senator Baker: But you agree that's a different standard than to raise a doubt?
Ms. Levman: I've never heard that standard in law. Reasonable doubt is a well-accepted standard in criminal law.
Senator Baker: Just like today reasonable suspicion is. You can take somebody out of a car and have them handcuffed on reasonable suspicion in our case law.
I don't know if Mr. Taylor wishes to comment. He has a special expertise which I don't want to go into, but he is an expert in certain areas of law.
Matthew Taylor, Counsel, Justice Canada: I think Ms. Levman answered the questions quite well. You are right in terms of suspects on reasonable grounds is a standard known to law, as well, and it has been interpreted by the Supreme Court in a number of decisions.
What is interesting about reasonable suspicion, as I understand it, is it's always applied in the context of police powers that justify action for a very short period of time for a very specific purpose.
The fact that the standard is lower, as compared to reasonable grounds to believe, for example, is, as the courts have said, context-specific in relation to what it allows law enforcement to do.
Senator Baker: Before that, we had "articulable cause'' and phrases like that. When the word "reasonable'' is placed in it, it has a specific meaning.
We had the Canadian Bar Association yesterday before this committee, and Senator White and Senator Dagenais took some exception to some of the words that were used. This was concerning the laying of charges under this legislation and other types of legislation.
Could you verify to us, Mr. Taylor, that in at least seven jurisdictions in this country the police lay the charge and then the Crown prosecutor has the duty of deciding whether or not to carry through on that charge, and that that is dramatically different from the case in the United States where the prosecutors make every decision? Could you verify that, at least in seven jurisdictions in this country, it is the police who are going to be laying the charges under this act and not the Crown prosecutor?
Mr. Taylor: That's correct. If I can do the inverse, we know three jurisdictions require the consent of the Crown attorney before charges can proceed. In the others, at least as matter of policy, it's not strictly speaking required for the Crown to weigh in on whether the charges that the police have identified would continue.
That said, we do know, and both Ms. Levman and I have trained on the importance of close collaboration between police officers and Crown prosecutors in respect of human trafficking, in particular given the seriousness of the crime, given the seriousness of the jeopardy that an accused would face, and the difficulty in terms of understanding the essential elements of the offence, and also bearing in mind it's a relatively new offence. Although it is true that in those seven jurisdictions police lay the charges, as a matter of practice we see fairly close collaboration.
I will point honourable senators to a document we have developed at our department and that will be available on our website shortly, which is really encouraging that close collaboration and training for police and prosecutors on human trafficking. We can make that available to the committee.
Senator Baker: Good. In defence of Senator White and Senator Dagenais on this point, the Supreme Court of Canada have always referenced, with approval, the system where the police investigate and lay the charges, and then there is a second look at it by the prosecutor after that is done. I think Senator White and Senator Dagenais were correct in bringing that to the attention of the Canadian Bar Association. I don't think the Canadian bar meant to say that one system was better than the other, but they did. That was the unfortunate part of it.
Have you received, Mr. Chair, the opinion of the bar of Quebec on this bill?
The Chair: Yes. Senator White has a question, but as a result of Senator Joyal raising it, we had a letter from Le Barreau du Québec supporting Bill C-452, and there was some question about whether the position may have changed. I asked the clerk to contact them following last week's meeting. We now have received the letter and, as I understand it, their position is unchanged. They still support the legislation.
Senator Baker: As I read it, Mr. Chair, their position is that Downey applies and Bedford doesn't.
Senator White: Thank you both for coming. I would like to suggest, Senator Baker, that British Columbia and New Brunswick overstepped the requirements of laying charges rather than arresting at a lesser level.
I want to be clear. This legislation, like other pieces of legislation where a charge is laid, the Crown would still look at likelihood of conviction and public interest, even though there is a presumption clause. There would be no change.
Ms. Levman: Absolutely.
Senator White: Second, even though this has that clause, from the judicial perspective, whether it is a jury or a judge, it has to be beyond a reasonable doubt to believe — not less than that, but beyond a reasonable doubt — to actually convict.
Ms. Levman: Yes.
Senator White: There is no difference, compared to other similar pieces of legislation that have come before us?
Ms. Levman: That is the applicable standard in all criminal law.
[Translation]
Senator Boisvenu: We heard the testimony of a Montreal police officer who works on these types of cases a lot. According to him, when it comes to reasonable presumption, the same thing that is applied to procuring will be applied to human trafficking.
Correct me if I'm wrong, but the notion of presumption is used in rather exceptional circumstances in the Criminal Code. Correct?
[English]
Ms. Levman: Yes, it's exceptional.
[Translation]
Senator Boisvenu: Since the notion of presumption is used in exceptional circumstances when it comes to these types of crimes, where the rate of disclosure is low, that means the Criminal Code has no deterrent effect on criminals. Is that right?
[English]
Ms. Levman: The court in Downey actually commented on the very issue you are raising, how difficult it has been, not just in Canada but in other countries as well, to hold offenders to account for the very reasons that we've outlined or discussed today, and hence the objective of these types of exceptional evidentiary presumptions to assist in holding offenders to account in cases that involve those power imbalances that make it difficult for victims or complainants to come forward and denounce the people who have exploited them.
[Translation]
Senator Boisvenu: According to the police officer's testimony, these are not isolated victims. In other words, pimps or criminals control networks of young women. We are talking about dozens of girls. We are not faced with a criminal and a single victim, but rather with a criminal and a number of victims.
I think that eliminating the concept of presumption from this legislation would strip the bill of all value. The philosophy behind this bill is based on two key elements — building victims' confidence in our judicial system and encouraging them to report the criminals. We are talking about the notion of presumption and about making sentences consecutive rather than concurrent. In a way, the bill makes it safe for victims to report and ensures that sexual offenders will not go free the day after they are convicted. If they are given consecutive sentences, they may be in prison for a number of years. This measure encourages victims to come forward more, doesn't it?
[English]
Ms. Levman: That does appear to be the sponsor's objective in advancing Bill C-452, but it is a private member's bill, so I can only tell you what appears to me to be the objective. What you're describing does seem to be that.
[Translation]
Senator Boisvenu: Having a concept of presumption in this bill doesn't take anything away from the alleged criminal in terms of full answer and defense, does it?
[English]
Ms. Levman: I believe that one of the reasons why the similar evidentiary presumption was upheld as a reasonable justification under section 1 was because the Supreme Court felt at the time that there was an appropriate balancing of interests, and that included, of course, the accused's right to full answer and defence, and the right to be presumed innocent.
The Chair: Are there any further questions before we move to clause-by-clause?
I want to apologize for not properly introducing our witnesses earlier: Nathalie Levman and Matthew Taylor, both counsel with the Criminal Policy Division of Justice Canada.
We will move to clause-by-clause.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-452?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1 carry?
Senator Baker: Mr. Chairman, before I go on, I want to make mention of the excellent work done by our library analysts and our clerk on this bill — Mr. Julian Walker and Dominique Valiquet, for the excellent work they've done for this committee in providing us with the law as it applies, and also Shaila Anwar for her excellent work.
There was just one question I want to ask you, Mr. Chairman. It's just a general question. It has been suggested by many people that amendments be introduced to this legislation. However, the amendments that were suggested to me would have violated the principle of the legislation. I'm wondering if you could pass comment on that as to whether or not you would rule them in order or out of order.
The Chair: My understanding, not being around as long as you have been as a parliamentarian, is that since the bill has passed second reading, that means the Senate agrees with the principle of the bill. If you follow that again, I would think an amendment that went against that would be ruled out of order or would be found as inadmissible.
Do you wish to challenge the view of the chair?
Senator Baker: No. I don't know if the clerk has anything further to add. No.
Mr. Chairman, I respect your view. I think it's absolutely correct. I'll leave it at that and I will not be introducing any amendments because of that.
Senator Fraser: Further to that, the situation does arise from time to time where even when the Senate has approved a bill in principle at second reading, after committee study the members of the committee believe that the bill should not be proceeded with. The customary procedure in that case is for the committee not to vote to defeat the bill, but for the committee to report to the Senate that it believes the bill should not be proceeded with further. This allows the full Senate to decide whether it wishes to reverse the second-reading principle.
The Chair: Thank you for that.
Shall clause 1 carry?
Some Hon. Senators: Agreed.
Senator Fraser: No. On division.
The Chair: Clause 1 carried, on division.
Shall clause 2 carry?
Some Hon. Senators: Agreed.
Senator Fraser: On division.
The Chair: Carried, on division.
Shall clause 3 carry?
Some Hon. Senators: Agreed.
Senator Fraser: On division.
The Chair: Carried, on division.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Some Hon. Senators: Agreed.
Senator Fraser: On division.
The Chair: Carried, on division.
Does the committee wish to consider appending observations to the report?
No.
Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Thank you all. Thank you, witnesses.
(The committee adjourned.)