Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 7 - Evidence - May 26, 2010
OTTAWA, Wednesday, May 26, 2010
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years), met this day at 4:19 p.m. to give consideration to the bill.
Senator Art Eggleton (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology. Today we deal with the topic of Bill C-268, a private member's bill.
Our first witness is the sponsor of the bill, Joy Smith. Joy Smith is the Member of Parliament for Kildonan—St. Paul in the province of Manitoba. She has devoted much of her life to educating high school students. She is also a bestselling author and recipient of the Hedley Award for Excellence in Research.
Before becoming the Member of Parliament for Kildonan—St. Paul, she was an MLA for Fort Garry in the Manitoba Legislature. She served as the critic for justice, education and governmental urban affairs, and she has also worked on the Manitoba task force for building sustainable communities. Welcome to Joy Smith and also Joel Oosterman, the chief of staff for the MP.
We have half an hour, unfortunately shorter than usual, and then we will have a second session with people from various government departments.
If you could make your introductory remarks in about seven minutes, that would be great, and then I will go to my colleagues for questions.
Joy Smith, Member of Parliament for Kildonan—St. Paul: I thank the chair and honourable senators on this committee for inviting me to speak to you on my private member's bill, Bill C-268.
The trafficking of a person is a horrific abuse of human rights. The trafficking of a child is even more severe. Canadian law in this area lags behind that of other developed countries. Canada does not have enhanced penalties for the trafficking of children.
Bill C-268 was drafted with two primary goals. First, it serves as a strong forum of denunciation. Bill C-268 will ensure the sentences of the traffickers of children reflect the gravity of the crime as called for under international treaties that Canada has already ratified. The first two sentences involving child trafficking in Canada resulted in approximately one in two years served after accredited pretrial time served is factored in. As such, traffickers are currently able to continue making hundreds of thousands of dollars from the exploitation and rape of children without much threat of serious sanction.
Second, Bill C-268 serves to provide an effective term of specific deterrence and protection of the public. The separation between the offender and the victim is critical to a victim's recovery.
I have commended the previous Liberal government for bringing in the initial human trafficking legislation under sections 279.01 to 279.04 of the Criminal Code. This legislation was well drafted and has provided important tools for all police officers, prosecutors and judges, as well as a means for compensation for victims.
Yet, since this legislation was given Royal Assent, we have witnessed subsequent cases involving the trafficking of minors resulting in very little jail time. One can assume that with the egregious nature of the offence of human trafficking, lenient sentences would not be an issue. However, Imani Nakpangi, the first person in Canada convicted of human trafficking involving a minor, received a three-year sentence for the trafficking of a 15-year-old girl, but was he credited 13 months for pretrial custody. He made over $350,000 sexually exploiting her over two years before she was able to escape. Essentially, he will spend less time in jail for this offence than he did exploiting her.
Last year, Montreal resident Michael Lennox Mark received a two-year sentence. With a two-for-one credit of the year served before his trial, the man who horrifically victimized a 17-year-old girl spent only a week in jail after his conviction. With precedent-setting, lenient convictions like this, victims remain susceptible to their traffickers and are left to live in constant fear.
In the first case I referred to, Eve, the victim of Imani Nakpangi, reflected this ongoing trauma and fear in her victim impact statement. She said:
I am constantly looking over my shoulder afraid either Imani or his friends are going to come after me for putting him in jail. I don't feel safe at home. He knows where I live and what my family looks like, and where they live. . . . I have nightmares about him. I have low self esteem. Feel like I'm only good for one thing, sex.
Honourable senators, I had coffee with her on Sunday, and she still has the same nightmares.
The courageous officers in the Peel Regional Police have taken human trafficking head on since the implementation of Canada's human trafficking legislation. They are responsible for Canada's first trafficking conviction and are currently investigating almost a dozen cases, most involving minors.
The Chief of the Peel Regional Police has said:
Efforts by police officers across Canada to enforce this law are impressive, yet they are overshadowed by the disturbing number of occurrences that involve victims under the age of 18.
Establishing minimum sentences, as proposed by Bill C-268, would raise the law's deterrent goal, and highlight society's abhorrence of crimes that involve child victims.
This sentiment has also been expressed by other national and international bodies. In April 2009, the citizens' summit on human trafficking at the 2010 Olympics produced a declaration, including that Canada's Criminal Code reflect the fact that the crime of human trafficking should carry meaningful penalties. Senator Jaffer and MPs from all sides of the house signed that declaration.
In October 2008, the report of the Canada-United States Consultation in Preparation for World Congress III Against Sexual Exploitation of Children and Adolescents recommended that Canada enact a mandatory minimum penalty for child trafficking. At that particular convention, in that report, Canada was admonished for not having mandatory minimums for trafficking children.
I will take a few moments to address points raised by honourable senators during the second reading of Bill C-268 in the Senate. First, the five-year minimum was specifically chosen as it is proportionate to similar offences under the Criminal Code. Section 212(2) contains a minimum of two years for living off the avails of underage prostitution. Section 212(2.1) has a minimum of five years for living off the avails of underage prostitution and using coercion or violence to incite someone to enter prostitution. Bill C-268 is similar to section 212(2.1) as it addresses the exploitation aspect but does not require proof of financial transactions. This is important because it is often difficult to track the financial aspects of such a clandestine crime. Therefore, Bill C-268 will provide an additional tool for prosecutors.
I want to note that higher minimums, as has been suggested by Senator Dyck, would create a law that is disproportionate to similar offences in the Criminal Code and open it to the susceptibility of a Charter challenge. It has also been proposed that Bill C-268 be narrowed to apply to cases involving child victims of sex trafficking and not to other forms of child slavery and exploitation. Certainly, forced sexual exploitation is truly the most heinous form of trafficking, especially when it involves minors. However, all forms of trafficking in minors must be considered very grievous to the life of a child. The United Nations Convention on the Rights of the Child, a legally binding international instrument ratified by Canada in 1991, requires these parties to take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale or the traffic in children of any purpose or form.
Further, other international conventions have recognized child prostitution as a form of child labour and not separate from it. For example, the International Labour Organization's Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour called on state parties to take measures to eliminate the worst forms of child labour, including the use, procurement and offering of children for prostitution. Canada also ratified this convention in June 2000. Forced-labour trafficking cases have been observed in Canada, but there have not yet been any convictions.
Fifty Honduran children were trafficked to Vancouver and used as drug dealers, and the law was unable to press charges because we did not have the mandatory minimums.
Bill C-268 is prepared for the prospect that cases will occur involving minors and ensures serious penalties to all child traffickers, consistent with international law and the protocols and conventions we have signed as a country.
On a similar note, it has been suggested that the definition of exploitation is too broad and should be changed. As honourable senators know, this definition has been adopted from the current human trafficking offence in section 279.04 of the Criminal Code and models the internationally accepted UN definition of exploitation for human trafficking.
The former Minister of Justice, the Honourable Irwin Cotler, recognized the underlying value of an inclusive definition of exploitation, consistent with international standards, when drafting the definition of exploitation in Bill C-49 — the government legislation that introduced sections 279.01 to 279.04 of the Criminal Code. It was intended by the government of the day to be broad, so as to apply to the many forms of human trafficking, and was drafted by experts after months of national and international consultation. Changing the definition of exploitation in Bill C-268 would result in an untested and unknown definition of exploitation for child trafficking existing alongside a tested definition of exploitation for adult victims of trafficking.
It is important to note that the definition of exploitation is not the issue at which Bill C-268 is directed. Bill C-268 is directed at enacting meaningful penalties for traffickers of minors in Canada.
Thank you again for inviting me to speak about Bill C-268. I do appreciate the strong support I have received across party lines for the bill in the House of Commons.
Human trafficking must remain a non-partisan issue. As you know, Bill C-268 is jointly seconded by MPs from the Conservative, Liberal and New Democratic parties. When it comes to the protection of our children, there is nothing that should unite us more. It is my hope that senators on both sides of this committee will support this important legislation, as it was passed by the House of Commons, and soundly denounce the trafficking of our children.
The Chair: Thank you very much. We have some time for questions. As is usual, the chair will start off with the first one.
We all agree how abhorrent this crime, the trafficking of children, is, and we are all shocked by some of the sentencing; it certainly does not appear to fit the crime. I think we would all agree there needs to be appropriate punishment.
However, what about crime prevention? One of the problems with dealing with just punishment is that we are dealing with the crime after it has happened, after it has created the trauma and the difficulty in the lives of these young people. What more can we do to prevent it? What more can the Government of Canada do to try to cut down on the number of these incidents?
Ms. Smith: That is a very good question. The bill is directed at one thing: stiffer penalties for traffickers of children. That is what Bill C-268 addresses.
In addition to that, I have been working on a Canada-wide national strategy that incorporates care, support, safe houses, counselling and job finding. For instance, Imani Nakpangi's victim — we will call her Eve, although that is not her real name — just got a job this morning. However, in talking with her, her experience has such far-reaching ramifications. She was going to write everyone a letter, but it just overwhelmed her to do it. She needs a week or so to do it. Her concern is the nightmares that she still has because there are no mandatory minimums. When you see the historical sentences that have been put down, as you say, they appall us all.
For the other aspect, we will need for all of us to address that and to work as well, because that is an important aspect. In working with the victims, I can see that, and I have worked on it myself. I am proposing a national strategy that I have been working on, and I hope that all sides of the house will contribute to that.
The Chair: That is good. I look forward to seeing that proposal of a national strategy.
Because of the time frame, we have time for only one quick question each — two to three minutes. Please try to keep the preambles to an absolute minimum, because I have six senators on my list.
Senator Eaton: Representatives of the Criminal Lawyers' Association have appeared as witnesses on Bill C-268. Have you had a chance to read their brief, or can you tell us whether they are supporting the bill?
Ms. Smith: No. I read their brief and I was disappointed by the absence of any attempt to address the issue of human trafficking, much less child trafficking. Understandably, the Criminal Lawyers' Association's bread and butter is keeping offenders out of jail, and mandatory minimums make it difficult for them to accomplish this.
I read the brief cover to cover four times, and in almost 20 pages, human trafficking is referenced only once, in the opening paragraph of the introduction. There is no attempt to understand the depth of the issue and the broad spectrum of backgrounds that victims come from — such as First Nations communities, group homes or even middle- class families.
In the introduction, the Criminal Lawyers' Association argued that mandatory minimum sentences are not necessary because crime rates are down. This may be true for some crimes, but not for all. In fact, our own Criminal Intelligence Service Canada's, CISC, strategic intelligence brief entitled "Organized Crime and Domestic Trafficking in Persons in Canada,'' which I have here because it contains some useful information, found that organized crime networks all across this country are actively trafficking Canadian-born girls as young as 12 years. CISC sounded the alarm. It said we have to do something about this. The CISC brief found this type of exploitation has evolved over the past 20 years. I would invite all of you to read this brief. It is very interesting.
Yes, I did read the brief by the Criminal Lawyers' Association. It was what I expected it to be, because they defend the bad guys.
Senator Plett: As you know, I have spoken in favour of the bill in the Senate and I am supportive of it. Also, I concur, to a large extent, with Senator Dyck that we should increase this. You have explained the constitutional issues involved in increasing it, so I support the bill.
We read so often that minimums are not deterrents. In your opinion, is a five-year minimum a deterrent to future actions by these people or others, or is this more about simply incarcerating the individual for a longer period of time so that the individual is off the street for longer?
Ms. Smith: It is important. The five years gets the perpetrator away from the victim. It is a mandatory minimum, and it is very meaningful. In our Criminal Code now, in sections 212(2) and 212(2.1), we have living off the avails of prostitution. That is what that entails. We have a penalty of five years in that if it is aggravated assault and the offender coerces the child into prostitution.
In actual fact, however, we have many problems around that because you have to prove the financial end of it. In the case of Eve, for instance, this dear girl, she thought if she kept a tally in a book and if she serviced 20 or 30 men a night and put down exactly what she earned, the trafficker told her she would be able to be free. Therefore, she worked harder and harder and got thinner and thinner and more scared, but she had the tally. Fortunately, the police were able to use that.
That almost never happens. Proving that a pimp or a trafficker is living off the avails of prostitution is difficult. The strength in Bill C-268 is that you do not have that burden of proof. You do not need to have that financial burden. It is a different thing.
Human trafficking is a complex crime that involves organized crime, individuals and targeted girls. The five-year penalty is very important because right now, when you look at living off the avails of prostitution, there are two years, if you can prove it, or five years if it is aggravated. If you can prove that they trafficked, you get five years and that gives the Crown prosecutors another tool to work with.
[Translation]
Senator Champagne: Thank you, Ms. Smith, for coming to speak to us today. One of the questions I had was already asked by Senator Plett. I share your concerns regarding young offenders. For instance, there are street gangs of 16, 17 year olds, who seek out 12-, 13-year-old girls, who then must prove they are worthy of becoming members in good standing of that particular gang. I wanted to know if this also applies to young offenders. If they are very young, perhaps we can set them straight more easily and protect these young girls before they become full-fledged members of the street gangs.
[English]
Ms. Smith: This is a huge problem. They become full-fledged members of street gangs because they do not have much choice. They will die on the streets if they are not told what to do, if they do not listen to what they are supposed to be doing.
I put trafficking in children in my bill because it encompasses forced labour, taking of organs or forced sexual exploitation. The citizens' summit on human trafficking at the 2010 Olympics said we must have meaningful penalties. We do not have meaningful penalties, and this is 2010, and that includes penalties that encompass all kinds of trafficking.
In October of 2008, the Canada-United States Consultation in Preparation for World Congress III Against Sexual Exploitation of Children and Adolescents also demanded that we enact minimum penalties for all forms of child trafficking. Dr. Mohamed Mattar, who was in the Protection Project at Johns Hopkins University, said all legislation should have all forms of trafficking. When you are talking about kids going into gangs, they use them for drugs. It is not all sexual exploitation. They use them for drugs, prostitution and many things.
Senator Champagne: I know we are talking about the victims being 18 and under, but the gang leader might be under 18 as well, and he or she is really the gang leader.
[Translation]
That is why I asked the question.
[English]
The Chair: I am sorry; I can take only one question.
Senator Champagne: It is the same question.
The Chair: All right. Please continue. I am running out of time.
Ms. Smith: They can be trafficked as well, senator. If they are doing work for the gangs, they can be trafficked.
[Translation]
Senator Champagne: But if the traffickers are young offenders who are not yet of legal age, are they also liable to a minimum sentence of five years?
[English]
Ms. Smith: I have faith in the judicial system if the laws are in place, and that would come out in a court of law. Any police officer you might talk to knows these kids are used and are victims, not criminals. I have worked and met with many kids who were used in gangs, and it is deplorable what they do to these kids. These kids do not have any choice. Mandatory minimums would serve as a deterrent to the leaders in those gangs, the adults in those gangs who dare to take these children. Even if they force the kids to do something they do not want to do, that is another definition, absolutely. That is a very good question. Thank you.
Senator Martin: Thank you, Ms. Smith, for the work you have done on this. I know the human trafficking provisions came into effect in 2005, which is only five years ago, and so these are the early cases. Could you elaborate more on the current situation in Canada, the growing concerns and how this added provision that Bill C-268 would bring is so important to what is happening to address the situation in Canada?
Ms. Smith: As I said in my presentation, Bill C-49 was a well-drafted piece of legislation, and I have spoken with Irwin Cotler, the former Justice Minister. He did a good job.
In reality, when you look at the cases that have been tried, 10 minutes from Parliament Hill there is a Gatineau woman who trafficked three kids, 15 years old and under. She tethered them to a cage; she had them raped; she beat them. This happened just this past year, and there was nothing to really go after her. Fortunately, the judge in that case gave her seven years, which is unprecedented. Judges are starting to pay close attention to human trafficking. Unfortunately, it is not consistent. We need consistent laws. The five years was recommended because it is parity with the Criminal Code as well.
You will be hearing from Ms. Levman from the Department of Justice. When she was doing a review on my bill roughly a year ago in June, she said that mandatory minimums have a danger of constitutional challenge. There was a test in the Supreme Court in R. v. Ferguson. That was a four-year minimum for aggravated assault for murder with a deadly weapon. That minimum was upheld. The Supreme Court has already heard challenges on mandatory minimums, so her advice was to ensure that the five years was consistent with our current laws. I hope I have answered your question.
Senator Martin: Yes, thank you, but the gap that this bill will be filling?
Ms. Smith: It will fill an important gap.
Senator Callbeck: I commend you, Ms. Smith, for bringing forth this legislation that will result in stiffer penalties for trafficking of our youth.
Since we can ask only one question, I am curious as to why this is a private member's bill and not a government bill. I think that as a general rule amendments to the Criminal Code are brought in by the Minister of Justice. Why was this not brought in by the minister with the full support of the Department of Justice?
Ms. Smith: You are very wise, Senator Callbeck, and that is a very good question. Basically, I am grateful that it is a private's member's bill because it survived prorogation. Otherwise we would be starting from the bottom. I went to see the Minister of Justice, and he knows the passion I have for human trafficking, so he let me run with it. The Prime Minister and the Minister of Justice have been extremely supportive of it.
I know a lot about it. I guess maybe I saved some body hours because I have done so much research on it. I have been able to put my brand on it, and it has been my level of expertise. Your question is well founded, but I do have a lot of support from my government.
Senator Dyck: It is nice to see you again, Ms. Smith. Thank you for the great work you have done putting this bill together. You know the criticisms I have with this bill, and I will focus on one, my concern with regard to the lumping together of trafficking for the purposes of sexual exploitation in a commercial sex trade and trafficking for other forms of forced labour, such as farm work.
I will pose the question to you in this way: If this bill were passed and you were a member of a jury and you knew there would be a minimum five-year mandatory sentence involved with a guilty verdict, would you convict a person who had trafficked a minor to work on a farm picking cabbages? Would you give that trafficker a five-year minimum mandatory sentence?
Ms. Smith: Absolutely I would. The ILO, the International Labour Organization, put it clearly, and we ratified the statement they made. They said that all forms of human trafficking are very important. Any type of trafficking is egregious to the life of a child.
Initially I felt the same way as you do, Senator Dyck. However, over the years of study I have come to believe and to understand, since I have met some of these kids who have been forced into forced labour, that any kind of trafficking is very egregious; and it also has to be in line with what we do in Canada. Under the treaty of the Palermo Protocols, which Canada signed, the definition of exploitation covers both labour and sexual aspects. It would be inappropriate to separate these, as senators have suggested.
A definition of exploitation found in section 279.04 — Irwin Cotler introduced that in the Criminal Code — was introduced specifically for the offence of human trafficking. It is a sound definition because it is drafted to reflect the UN's definition of human trafficking, and it has been tested by Canadian courts. They say all forms of trafficking — so that is sexual exploitation, forced labour and organ removal.
The definition of exploitation for human trafficking is found in section 279.04 right now. It was vetted by Parliament in 2005 and supported by all members. Law enforcement and non-governmental organizations in Canada have been trained to use it and to identify cases of human trafficking based on the definition of exploitation found in section 279.04 of the Criminal Code.
It is important to note that there have been no convictions to date in Canada for trafficking of humans for forced labour because the definition of exploitation in section 279.04 sets a high standard. The current definition of exploitation in this section would never apply to simple labour infractions. For instance, if people were picking cabbages, they would not get a five-year minimum unless they had fear for their safety.
Senator Dyck: Right. That is why I am assuming that they would be coerced.
Ms. Smith: Sometimes they would; it just depends. I have faith in the courts. I have faith that the judges would see the difference.
There was a test in court. There were some Filipino men on a farm, and this particular exploitation definition was put to the test because the RCMP said that the situation was bad. The men were not paid; their documents were taken away. However, they did not fear for their lives, so they did not get that criminal conviction. It was called the Elmvale 11. No charges for human trafficking were ever laid. The current definition of exploitation, section 279.04, would never apply to simple labour infractions.
The Chair: Thank you very much, Ms. Smith, for coming in. You obviously have strong feelings and passion about this. I wish you well in developing a broader national strategy to help deal with prevention as well.
We will have three sessions on this before we get to clause-by-clause consideration of the bill.
Ms. Smith: Might I just say that I will be so rude as to leave in about 10 minutes because the bells are ringing and I have to go vote. The whip would not smile on me if I were late for a vote.
The Chair: We understand that. Thank you very much.
I want to welcome Senator Plett and Senator Dawson, who are here as guest senators today. I am also delighted to see Senator Demers here.
We now have a number of people appearing on Bill C-268. They are officials of the Government of Canada. From Justice Canada, we have Nathalie Levman, Counsel, Criminal Law Policy Section. From Statistics Canada, Canadian Centre for Justice Statistics, we have Julie McAuley, Director; Craig Grimes, Senior Analyst; and Mia Dauvergne, Senior Analyst, Policing Services Program. From the RCMP, we have Superintendent Shirley Cuillierrier, Director of Immigration and Passport Branch, and Sergeant Marie-Claude Arsenault, Non-commissioned Officer, Human Trafficking National Coordination Centre. Appearing from Public Safety Canada is Barry Mackillop, Director General, Law Enforcement and Border Services Directorate.
[Translation]
Barry Mackillop, Director General, Law Enforcement and Border Services Directorate, Public Safety Canada: I am pleased to have the opportunity to come before the committee today to share information on government efforts to combat human trafficking.
Human trafficking is a horrific crime that we take very seriously. However, like in other countries, it is difficult to know the full magnitude or scope of human trafficking in Canada. Nevertheless, we do know that internationally, women and children are the primary victims — usually for the sex trade and forced labour.
Canada's response is guided by and consistent with the United Nations' Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children and is based on the "4-Ps'': preventing trafficking, protecting victims, prosecuting offenders and building partnerships both domestically and internationally.
[English]
Since 2004, federal efforts have been overseen by the Interdepartmental Working Group on Trafficking in Persons. This working group is co-chaired by the departments of Public Safety and Justice and is comprised of 17 federal departments and agencies. This working group serves as a federal repository of expertise on combatting all forms of human trafficking and to ensure that we have a coordinated and comprehensive approach to this complex issue.
Through this group, the federal government also works closely with its provincial and territorial partners through a variety of existing fora to strengthen national efforts to respond to human trafficking. In Canada, the protection of victims of crime is a shared responsibility between these levels of government, with the provinces and territories also administering programs focused on protection and the provision of services to victims of human trafficking.
I will highlight a few projects and collaborative efforts led by the working group to address human trafficking. On January 15, 2009, Public Safety Canada, the RCMP and the Canadian Crime Stoppers Association announced a partnership to develop a national awareness campaign, available through the media, and to use the Crime Stoppers' 1- 800 national anonymous tip line. Crime Stoppers has recently completed a television re-enactment video and newspaper print and radio spots, which form part of the national awareness campaign, called Blue Blindfold, that will be officially launched in the near future. This campaign will serve to raise awareness of human trafficking among the general Canadian population.
The RCMP Human Trafficking National Coordination Centre, established in 2005, provides a focal point for law enforcement in their efforts to combat human trafficking activities. The centre has developed tools and protocols to facilitate human trafficking investigations and raise awareness among law enforcement and non-governmental organizations nationally. My colleague Superintendent Shirley Cuillierrier will be speaking to you this afternoon about the centre and RCMP efforts to combat trafficking in persons.
In addition to providing enforcement at ports of entry, the Canada Border Services Agency, CBSA, gathers intelligence on human trafficking and performs a number of functions to stop the flow of victims of human trafficking by preventing their transport to Canada, as well as to deter trafficking organizations from using Canada as a destination or transit country. CBSA officers are provided with tools designed to assist in the detection and interception of human trafficking victims, including proper referral protocols.
With respect to victim services, Citizenship and Immigration Canada can issue a temporary resident permit to victims of human trafficking for a period of 180 days, which includes access to the Interim Federal Health Program and the opportunity to apply for a fee-exempt work permit.
Other efforts include collaboration between Public Safety Canada, the Department of Justice, and the British Columbia Office to Combat Trafficking in Persons for the development of a human trafficking training curriculum for first responders in B.C. Public Safety Canada has also supported the Metis Child and Family Services organization of Edmonton to conduct exploratory research into the experience of women, particularly Aboriginal women and girls, trafficked in and around the Edmonton area. The results of this research will provide additional insight into this issue from the victims' perspective.
In addition, as part of overall government efforts to address public concerns of a possible increase in human trafficking related to the 2010 Winter Games, Public Safety Canada held training sessions in January 2010 targeting Crown prosecutors in British Columbia on the issue of human trafficking. The department is also currently funding a research project to assess the impact, if any, of the 2010 Winter Games on the prevalence of human trafficking, which will in turn assist in the development of prevention strategies in relation to similar events hosted by Canada in the future. The final report is expected at the end of August 2010.
Finally, the Criminal Code of Canada provides the necessary legislative framework to ensure the effective prosecution of traffickers and to hold them accountable for their actions. My colleague from the Department of Justice will speak more directly to Canada's human trafficking legislative framework and the specific offences outlined in the Criminal Code.
[Translation]
Mr. Chair, I would like to assure the committee that the government is committed to protecting all Canadians, including our vulnerable children, from traffickers who may seek to exploit them. We will continue to build on our efforts in order to assure the safety and security of our citizens.
I would now ask my colleague Nathalie Levman, Counsel in the Criminal Law Policy Section at the Department of Justice, to speak more directly to Canada's human trafficking legislation, including Private Member's Bill C-268 and its potential impact on the human trafficking offences contained in the Criminal Code.
[English]
Nathalie Levman, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for this opportunity to provide the committee with some general information on the existing criminal law that addresses trafficking in persons, as well as the implications of Bill C-268, which proposes to impose mandatory minimum penalties for the offence of trafficking in children.
By way of background, trafficking in persons, or human trafficking, is often described as a modern-day form of slavery and involves the recruitment, transportation and/or harbouring of persons for the purpose of exploitation, typically sexual exploitation or forced labour.
In trafficking cases that involve either forced labour or sexual exploitation, traffickers use various methods to maintain control over their victims, including force, sexual assault and threats of violence. Victims are forced to provide their services or labour in circumstances where they believe that their safety, or the safety of a person known to them, would be threatened if they failed to provide that labour or service.
This conduct is distinguishable from human smuggling, which involves smugglers moving persons across international borders in exchange for a sum of money. Once the destination is reached and the fee is paid, the relationship ends. That is human smuggling. Trafficking, on the other hand, involves the ongoing exploitation of the victim, so there is a distinction.
Trafficking may also occur either across or within borders and often involves extensive organized crime networks. Women and children are particularly vulnerable to sex trafficking and are its primary victims. For example, in 2005, the International Labour Organization estimated that at least 2.45 million people across the world are in situations of forced labour as a result of human trafficking. Of these, it is estimated that 32 per cent are trafficked for economic exploitation, and 43 per cent are trafficked for the purpose of commercial sexual exploitation, with 98 per cent of this latter group being women and girls.
Also, a more recent study, a February 2009 United Nations report, indicates that over 24,000 victims of trafficking were identified by 111 countries in 2006; 79 per cent of these cases involved trafficking for sexual exploitation, and 18 per cent involved trafficking for forced labour. However, the actual number of forced-labour cases may be higher, as forced labour is less frequently detected and reported than is trafficking for sexual exploitation, as the sponsor of the bill has pointed out today.
Numerous Criminal Code offences have always applied to trafficking cases; these include extortion, assault, sexual assault, forcible confinement, kidnapping and prostitution-related offences, depending on the facts of a given case. To strengthen this approach, in 2005, three trafficking-specific indictable offences were added to the Criminal Code; these have already been mentioned today. Section 279.01 specifically prohibits trafficking in persons and imposes a maximum penalty of life imprisonment where kidnapping, aggravated assault, aggravated sexual assault or death to the victim is involved, and 14 years in all other cases, the most serious maximum penalties the code contains.
Section 279.02 prohibits receiving financial or other material benefit from the commission of the trafficking offence, and this offence imposes a maximum penalty of 10 years. The third offence is section 279.03, and that prohibits the withholding or destroying of identity documents for the purpose of committing or facilitating the trafficking of a person, and this offence imposes a maximum penalty of five years' imprisonment.
These offences apply to all trafficking cases, whether the traffickers are extracting sexual services or any other type of service from their victims. As the sponsor pointed out, this approach is in keeping with the United Nations trafficking protocol as well as other international instruments, and the trafficking protocol was ratified by Canada in May of 2002. It also represents the most comprehensive international attempt to define and address the problem. The Immigration and Refugee Protection Act also prohibits the trafficking of persons into Canada, which I neglected to mention.
As a result of all of these different offences, today police and Crown attorneys can choose from a wide range of offences as they deem appropriate in each case. That is, they may choose to charge or prosecute under the new trafficking-specific offences or they may choose to use other offences that I have already mentioned. In fact, in most of the recent cases, we are seeing charges under trafficking-specific offences and a variety of other related offences.
Specifically regarding Bill C-268, its proposed reforms would create a new offence of trafficking in children, which would mirror the existing main trafficking offence in the Code, section 279.01, with one exception. That is, where the victim is under the age of 18, the bill proposes a mandatory minimum penalty of six years for the aggravated branch of the offence, and five years for the branch of the offence that carries a maximum penalty of fourteen years. The bill also proposes consequential amendments to ensure that along with the main trafficking-in-persons offence, the proposed new offence of trafficking in children is referenced in the provisions that deal with interception of communications, exclusion of the public from court, publication bans, DNA, the sex offender registry and dangerous offenders.
The effect of these proposed reforms in Bill C-268 would include treating the trafficking of any person under 18 years distinctly from the trafficking of an adult, in that a mandatory minimum penalty would not apply to the trafficking of an adult, and treating the trafficking of all persons under the age of 18 years the same, regardless of whether sexual services or other types of services are extracted from them. Where the trafficking of the young person is for the purpose of sexual exploitation — for example, in the sex trade — the imposition of a mandatory minimum penalty would make the penalties for child trafficking more like the existing penalties that apply to the procurement of a person under the age of 18, which currently impose mandatory minimum penalties in three different circumstances. Some of them the sponsor has already mentioned today, but I will go over them, because they probably are relevant to your analysis of Charter issues.
The first is the offence of living on the avails of child prostitution, which imposes a mandatory minimum penalty of two years and a maximum penalty of 14 years — that is section 212(2). The second is the offence of living on the avails of child prostitution where aggravating factors are present, which is a mandatory minimum penalty of five years, section 212(2.1). As well, there is the offence of obtaining for consideration the sexual services of a child or communicating for that purpose, which imposes a mandatory minimum penalty of six months and a maximum penalty of five years, section 212(4).
Therefore, Bill C-268 provides police and Crown attorneys with another way to address cases involving child trafficking. They will still have the discretion to proceed under the trafficking-specific offence or another Criminal Code offence that may be more appropriate to the facts of a given case, or both.
Superintendent Shirley Cuillierrier, Director of Immigration and Passport Branch, Royal Canadian Mounted Police: Thank you for the opportunity to speak to you today. You will notice that I have a 10-minute presentation, but my comments will be confined to 6 minutes this afternoon, so that should put a smile on people's faces.
[Translation]
Joining me today is my colleague, Sgt. Marie-Claude Arsenault, who is in charge of the RCMP Human Trafficking National Coordination Centre.
[English]
It is our pleasure to talk to you today about the prevalence of human trafficking in Canada and to share with you the strides that law enforcement has made in combating this crime. I will gladly answer your questions following my remarks.
The RCMP established the Human Trafficking National Coordination Centre, HTNCC, in 2005. It provides a focal point for human trafficking law enforcement efforts and investigations across Canada. The centre develops tools, coordinates national awareness training and anti-trafficking initiatives, develops partnerships and coordinates intelligence for dissemination among law enforcement in Canada. The centre is guided by the pillars of preventing trafficking, protecting victims, prosecuting offenders and building partnerships with domestic and international agencies, NGOs and the community at large.
The RCMP has in place six regional Human Trafficking Awareness Coordinators, referred to as HTACs.
[Translation]
Their key responsibilities include raising awareness among and developing strong relationships with law enforcement, government agencies, NGOs and the public in all provinces and territories.
[English]
Part of preventing and protecting the public from human trafficking entails identifying those who are involved in the trafficking of persons. Human trafficking is all about traffickers making money without concern for their victims. This is a crime against people, not commodities. Traffickers maintain control of people and may coerce them into the sex trade or forced labour. It can involve organized crime, but it also can be conducted by individuals or family networks.
Since 2007, there have been five cases involving five accused, where convictions under section 279.01 of the Criminal Code have been secured. In these cases, four victims were under the age of 18 at the time of the offence. The accused were charged with human trafficking and other related offences and received sentences for human trafficking varying between two and seven years. All of these cases involved trafficking within Canada for the purpose of sexual exploitation.
[Translation]
It is significant to note that as of February 2010, there were approximately 32 human trafficking cases before the courts that we have been made aware of, including at least 14 involving victims under the age of 18 years.
[English]
In keeping with the cycle of events when new legislation is adopted, it would appear that momentum is building around awareness, resulting in more charges being laid.
[Translation]
Partnerships are a key component to successfully tackling this problem. This is why the RCMP works with municipal, provincial, federal and international partners, government agencies, NGOs and the public to uncover and target human trafficking activities.
[English]
Law enforcement strives to identify and rescue victims while investigating suspected traffickers and the criminal organizations that lie behind these activities. In order to raise awareness of this issue among law enforcement in Canada, NGOs and the public, the RCMP, in collaboration with its partners, has developed a human trafficking awareness video to help identify potential victims as well as their traffickers. The video was included in a human trafficking awareness tool kit, which also contains victim assistance guidelines, posters, a police officer's handbook, pamphlets and a pocket card, as well as fact sheets and contact information.
In 2009, more than 4,000 human trafficking awareness tool kits, which include the Crime Stoppers' tip line phone number, were distributed to all law enforcement agencies in Canada, as well as another 500 tool kits to NGOs. Between 2008 and 2009, training and awareness sessions were delivered by the HTNCC and HTACs to more than 28,500 law enforcement members, prosecutors, government agencies, NGOs and members of the public across Canada.
The RCMP has conducted a national threat assessment to determine the degree of human trafficking in Canada. The goal of the threat assessment was to identify criminal organizations involved in human trafficking, as well as trends and intelligence gaps, as opposed to quantifying the number of victims. This will provide law enforcement with a guide to further direct its resources on this issue. The threat assessment will be made public in the very near future.
[Translation]
The RCMP supports any efforts to enhance the integrity of the judicial system and acknowledges that this is only one component to successfully combating this crime.
[English]
Looking forward, the RCMP, in collaboration with its partners, will maintain focus on continued awareness for all law enforcement, NGOs, youth and Aboriginal groups; coordinate intelligence, at both the domestic and the international levels, and keep abreast of new trends; develop an investigative tool to support law enforcement engaged in these investigations; and encourage partnerships between agencies to promote the most strategic and effective approaches to address this issue.
The Chair: Our final presenter is Julie McAuley, on behalf of Statistics Canada.
Julie McAuley, Director, Canadian Centre for Justice Statistics, Statistics Canada: We have tabled both a presentation and two issues of Juristat that we will be referring to. Thank you for the opportunity to present to the committee on the issue of sex offences against children. My colleagues, Mr. Craig Grimes and Ms. Mia Dauvergne, will assist me in answering any questions you may have.
Before proceeding, it is important to make two observations. In the request to appear before the committee, Statistics Canada was asked to provide information on how the 2005 Criminal Code amendments for human trafficking have been used. This request is one that we cannot fulfill as it is beyond the mandate of Statistics Canada.
he information we are presenting today speaks only to sex offences against children that have come to the attention of the police or the courts. We know, however, that many offences, particularly sex offences, are never reported to legal authorities. Findings from our latest victimization survey tell us that 8 in 10 sexual assaults against those aged 15 to 17 in 2004 were never reported to police. While this survey does not collect information about the experiences of those younger than 15, it is reasonable to expect that the reporting rates for these children would also be low. This means that the information we are about to present today very likely underestimates the actual prevalence of sex offences against children in Canada.
Slide 2 in the presentation is based upon 2008 data reported to Statistics Canada by police services. In that year, police identified about 14,000 children, 0 to 17 years of age, who had been the victim of a sex offence. The vast majority, about 8 in 10, were girls.
Female children of all ages are more likely than male children to be the victim of a sex offence. The gap in victimization rates between girls and boys is particularly evident during the teenage years, when girls appear to be most at risk. In particular, for girls aged 13 to 17 years of age, about 1 in 150 was the victim of a sex offence in 2008. This was about 8 to 10 times higher than the rate for boys of the same age.
The trend in police-reported sex offences against children, as well as the types of sex offences most often committed against children, has remained relatively stable over the past five years.
The next three slides show 2008 police-reported data on the relationship between victims and those accused of committing a sex offence against a child. As you will see, as children age, the accused-victim relationship shifts from parents and other family members to acquaintances.
Slide 3 focuses on children aged 0 to 5 years. Here we see that parents and other family members comprise the majority of accused persons. In 2008, almost 6 in 10 boys and 7 in 10 girls were victimized by a family member, often their parent.
On slide 4, we look at the accused-victim relationship for police-reported sex offences involving children 6 to 11 years old. As you can see, while boys and girls in this range were still most likely to be victimized by a parent or another family member, the proportions were less than those for younger children. In contrast, children 6 to 11 years old, particularly boys, were more likely than younger children to be victimized by an acquaintance. In other words, the relationship is beginning to shift from family members to acquaintances.
Slide 5 shows the accused-victim relationship for police-reported sex offences involving children 12 to 17 years old. Here we see an even greater drop in the proportion of children who were victimized by a family member and an increase in those victimized by acquaintances.
These data also show that teenage boys were about three times more likely than teenage girls to be victimized by an authority figure, such as a teacher or coach. During the teenage years, we also see a substantial increase in the proportion of sexual victimizations committed by strangers — about 14 per cent of boys and 15 per cent of girls.
To summarize, we have seen that the proportion of police-reported sex offences where the accused was a family member declines as the age of the victims increases.
In 2006-07, there were about 6,500 child sex offence charges in Canada, which were contained in approximately 2,900 court cases.
Looking at the nature of these charges, we see that the most serious offence in almost half of these cases was sexual interference, followed by an invitation to sexual touching, child pornography and sexual exploitation. Together these four offences accounted for 91 per cent of all sex offence charges against children in cases completed in criminal courts in 2006-07.
On the next slide we see that in 2006-07, close to 1,300 of the 2,900 court cases included a guilty child sexual offence charge. For youth found guilty in such cases, probation was the sanction most often awarded, while for adults it was custody. Well over half of adult guilty cases resulted in a custody sentence. This is higher than what we typically see in adult courts. In 17 per cent of these cases, adults were sentenced to custody for two years or more — which is federal custody — compared with only 4 per cent of adult guilty cases in general. These longer custody lengths may indicate the seriousness with which the courts treat these cases.
On slide 8 we see that in almost half of cases involving a child sexual offence the accused was over 35 years old. We also see that in about 20 per cent of these cases a person 12 to 17 years old, or a young offender, was accused — approximately 6 per cent higher than for criminal cases generally.
It is also important to note that the accused was male in 97 per cent of cases involving child sexual offences. This proportion is 15 per cent higher than what we see overall in criminal courts.
Slide 9 specifically addresses violations of child luring through the Internet. This is a relatively new offence type, introduced in 2002. Between 2006 and 2008, police reported 800 violations of child luring through the Internet. However, to date, few of these cases have been processed by the courts. For those that did make their way through the court system, three quarters of cases involving child luring resulted in a guilty finding. For these cases, custody was the most commonly imposed sentence, with the length of custody averaging 374 days in length.
Turning now to slide 10, Statistics Canada has recently undertaken a feasibility study on trafficking in persons on behalf of Public Safety Canada. This report will be released in June of this year. The study's objective was to examine the feasibility of developing a national data collection framework to measure the nature and extent of human trafficking in Canada. Consultations were held with a wide variety of stakeholders.
The overriding theme throughout the consultations was the lack of comprehensive, reliable and comparable data on human trafficking. The underground nature of trafficking networks, victims' reluctance to report crimes to the authorities, difficulties in identifying victims and the sensitive nature of the data are all factors that present real challenges for reliable data collection. Furthermore, any information that is available in Canada is dispersed across different government departments and agencies and other organizations.
In the absence of reliable, ongoing information to inform the issue, it is unknown whether incidents of human trafficking are increasing or decreasing.
Once again, thank you for the opportunity to present to this committee.
The Chair: Thank you very much. We always get efficient-looking charts from Statistics Canada.
Thank you to all of you for your initial presentations. We have more time for questions and comments from committee members this time around.
I will start off the questioning. As I indicated earlier when Joy Smith was here, we all abhor this kind of crime against children. We hear about these cases, which she and others have cited, where people seem to be getting off with light sentences. I think we are all puzzled and shocked by this. We think it is awful, but we do not necessarily know the whole story, because the media does not necessarily give it.
I would like you to try to tell us what usually goes on here. Is it a case of just not understanding all the details that a judge understands, or is it related to what I have seen referred to in some documents as the going rate for that kind of a crime? Why do you think there are these kinds of sentences, which appear so light and out of context with the seriousness of the crime? I am not looking for a specific sentence but just in general why you think that happens.
My second question is with regard to the deterrence factor. Here we are talking about stiffer penalties, more appropriate punishment. Is there some evidence to indicate there would be a deterrence factor with mandatory minimums? I do not think the people who are in the midst of committing this crime stop to think about mandatory minimums. They are trying to avoid getting caught. What is the deterrence factor, and what is the evidence to support it from other bills involving mandatory minimums? Ms. Levman, you mentioned some of the other bills.
Ms. Levman: With regard to your first question about sentencing, as my colleague from the RCMP indicated, we have five convictions under section 279.01, which is understandable given that it was enacted fairly recently. They were all as a result of guilty pleas. Unfortunately, we do not have the sentencing decisions because they are unreported. Without those decisions, it is hard to answer your question as to what a sentencing judge would take into consideration. There are always mitigating and aggravating circumstances that we know of generally, and presumably that would be taken into account when a judge makes that decision.
Certainly we have had other cases that have been decided not under the trafficking-specific offences but under other offences in trafficking cases, and sentences have been higher. The highest we have under section 279.01 is seven years, in the Emerson case, to which the sponsor referred. That was a particularly egregious case, and Laura Emerson received a lengthy sentence. There have been higher sentences with notes of any kind of coercive or violent behaviour, that being considered as an aggravating factor, which is in keeping with the principles of sentencing in criminal law.
With regard to your question about the deterrence factor in mandatory minimums, I am not a sentencing expert; I do other kinds of criminal law. If you want to know exactly what evidence is out there, I would suggest you ask my colleagues, or I can ask them for you. However, I do know that the research that is available on the Justice Canada website does not provide conclusive findings on the effectiveness of mandatory minimum penalties.
Academics have put forth criticisms of mandatory minimum penalties, which I am sure you have all heard, saying that they skew the front end of the process because they encourage plea bargaining for lesser charges and that often at the end of the criminal justice process, when a judge is deciding these cases, the mandatory minimum is used as a ceiling rather than a floor, so the offenders get the mandatory minimum rather than something more than that. You would expect five years to be the start and then aggravating factors to be factored in and the penalties to go up from there. Academics have criticized mandatory minimum penalties for failing to do that.
Also, there are criticisms that mandatory minimum penalties do not permit judges to take into account special circumstances that might suggest a different sentence and therefore can result in unduly harsh sentences, which implicates the section 12 cruel and unusual punishment analysis. That is where that comes from, when you have gross disproportion between the bad conduct being addressed and the penalty the judge has to impose.
However, mandatory minimum penalties, many have pointed out, are rationally connected to certain sentencing objectives, such as deterrence and denunciation, as specified in section 718 of the Criminal Code. Also, some maintain that mandatory minimum penalties send a strong message to both the criminal justice system and the public in general that the offences to which they apply should not and will not be tolerated. As I have pointed out, if we look at Bill C- 268 and compare to other similar offences, I think the obvious comparison is sections 212(2) and 212(2.1). You see two and five years there, and we have five and six years here. Hopefully that information will help your analysis.
Ms. McAuley: From Statistics Canada's point of view, we do not have any sentencing data on human trafficking. However, in the presentation we provided you, on the last of the supplemental slides, which is the last page, you will see the length of custody in convicted cases, the sentence itself. We have put on the graph a comparator between the cases of child sex offences versus all criminal courts. As you go from shorter custody, starting with one month or less, and move to longer custody, including 24 months or more, which is federal custody, you see that more cases involving child sexual offences will receive a higher length of custody.
Senator Eaton: Mr. Mackillop, do you have an idea of what the percentages are of homegrown trafficking victims and ones that are brought across the border?
Mr. Mackillop: The short answer is no. I would have to defer to the RCMP on the operation side who may be conducting threat assessments. They may be able to find some of those numbers. However, as Statistics Canada pointed out, it is difficult to get accurate statistics on human trafficking, given the clandestine nature of the crime and the difficulty in laying charges. We are almost limited to the police laying the charge in order to identify it as a human trafficking case.
We suspect that Canada may be a transit country. We do not believe we are much of a destination country for international trafficking coming in. We may have more challenges on the domestic side, as people are making links towards prostitution and the moving of women and children to the prostitution angle of organized crime across Canada, which in some cases may be trafficking as well.
Senator Eaton: One of the witnesses was careful to explain the difference between smuggling and trafficking. We have all read about boatloads or truckloads of people being smuggled either to Canada or through Canada to go offshore. Are they followed in any way to ensure it is just smuggling and not a form of trafficking, that it does not become trafficking once they arrive here?
Sergeant Marie-Claude Arsenault, Non-commissioned Officer, Human Trafficking National Coordination Centre, Royal Canadian Mounted Police: You are right. It is difficult in smuggling cases, because there can be cases where the victims would not know they are being trafficked. They are thinking they are being smuggled. They would not know this at the border. They would not know until they arrive at the destination and the exploitation starts.
In terms of the transit, when they are smuggled into Canada in transit to the United States, for instance, for us to determine whether it is a trafficking case, we would need strong intelligence or a strong indication from our colleagues from the U.S. that there is some exploitation when they arrive at the destination in the U.S. It is difficult to determine at this point whether it is trafficking from Canada.
[Translation]
Senator Eaton: Do you follow them once they arrive in Canada and are allowed into the country? These are people who are brought to Canada under false pretences.
[English]
Do you follow them to ensure that they were smuggled in to become Canadian citizens as opposed to becoming trafficking victims?
[Translation]
Ms. Arsenault: Each case is certainly unique. If information or indicators show that we could be dealing with victims of human trafficking, we can then track the movements of the potential victims or investigate a little to try to uncover elements of trafficking.
So, it is difficult to determine which cases to follow. It really depends on the information we receive, which helps us make decisions and determine what actions to take.
Senator Eaton: I have had a look at your book, which is very interesting. Do you work with schools to prevent the domestic abuse of children?
[English]
Ms. Cuillierrier: That is a good question, and Ms. Arsenault and I are in the process of strategizing how we will do that outreach. We would like to work with our colleagues in Public Safety Canada on getting the message out to schools. We feel that early intervention, which is prevention, is worthy, and it is part of our role and part of the four pillars of our HTNCC. It is ironic that you asked that, because within the last two weeks, I think, we have had that conversation regarding the early intervention that needs to happen and awareness.
Senator Eaton: I opened a women's shelter in Toronto for Minister Finley last year, and many of the women they are working with in that community in northern Toronto are new immigrant women who do not speak French or English. Will you work with women's shelters as well?
Ms. Arsenault: When we worked on the toolkit, we consulted with NGOs and shelters. I do not know whether you had time to read the letter, but some of the posters come in six languages for the victims who do not speak English or French.
Senator Plett: Many people believe we should call our jails "rehabilitation centres.'' I think that, first and foremost, they need to be places where we send people to punish them for a crime they have committed.
My question is to the RCMP in this case: Would your motive and that of other police in Canada for supporting minimum sentences be because you believe it would be a deterrent or simply because, as Ms. Smith said, it would get the perpetrator away from the victim for a longer period of time and prevent at least that person from committing this crime for a longer period?
Ms. Cuillierrier: With respect to the mandate of the RCMP, it is public safety. First and foremost, it is to ensure that people living in communities feel safe. When police officers go about doing an investigation of whatever crime, their intent is to gather as much evidence as possible to obtain a conviction. Once we have put our investigation together, we meet with the prosecutor, and we turn it over to the judicial system to administrate within the justice system. In answer to your question, our mandate is to ensure public safety; that is the goal of our investigation.
Ms. Arsenault: In cases that we have seen, the perpetrator will sometimes want to contact the victim afterwards, so by having the person in jail, safety for the victim is our goal.
Senator Plett: I appreciate that.
This may be more of a comment than a question. We all have friends in the forces, and we have all spoken to our friends, and, occasionally, we read in the newspaper where a police officer is quoted saying something along the lines of how he or she spends all this time doing the work, doing the investigation, bringing the person to justice, and then that person gets a slap on the wrist. Do you feel some of those frustrations as well?
Ms. Cuillierrier: Of course, I have personal opinions, but I try to conduct my investigations objectively. I build a case, collect the evidence and try to protect the rights of somebody who has been victimized, and I have faith in the judicial system in this country to exercise the justice that is required with respect to individuals who are charged before the court.
Senator Plett: Thank you, and keep up the wonderful work that you do.
This question is for the witnesses from Justice Canada. I am supportive of this bill, and I need everyone to know that. However, will minimum sentences also become maximum sentences? Will judges say: "Well, five years, minimum, so we will give everyone five years, no matter how heinous the crime is''?
Ms. Levman: One of the concerns raised amongst academics is that mandatory minimum penalties become a ceiling rather than a floor. The objective of the message of the mandatory minimum is to say to sentencing judges that if an accused is convicted of this offence, he or she gets X — five years, two years or whatever the case may be — and if there are aggravating factors, they can build on that.
The people who express concern about mandatory minimums in much of the literature do not feel that offenders should not be punished. I think we all feel that offenders should be punished, but the concern is that mandatory minimums might not achieve their goal if judges are not using the mandatory minimum as a floor, as they should be. I am not sure about the state of the studies because, as I said, this is not my area of specialty. Before I came here, I asked my colleagues, and they said that the research is not conclusive, which means, I guess, that we have evidence that goes both ways.
Senator Martin: In your presentations, including the statistics that you provided and some of the numbers in the cases that you are aware of, it is clear that as a nation we are dealing with an issue that seems to be growing. I have faith in our judiciary as well, but as with any system, sometimes we detect early on in the application of a law and its interpretation that perhaps there are gaps we need to re-examine. Ms. Smith talked about the good work that the former minister of justice has done, the definition of exploitation, the inclusive language used in our current law and the importance of what Bill C-268 will do to complement and strengthen what we already have.
That was a bit of a preamble to express my concern and alarm. Even these numbers, which you say are conservative — in 2008, 14,000 victims under the age of 18 — are far too high, in my opinion. Also, you said one in 150 girls could become a victim to sexual offences, but the numbers could be higher; based on the figures you shared today, in 2010 it has almost tripled or quadrupled.
From your research and your work in your field, do you see human trafficking offences becoming a growing issue in Canada? You may respond in other ways as well, but it is a simple yes or no question. Based on what I heard today, the answer seems to be yes, but I would like to hear what you have to say.
Mr. Mackillop: As a policy wonk, I am not used to giving yes or no answers. There is always a grey area.
Absent a baseline, it is hard to tell whether human trafficking is increasing or whether it was always there and we did not know. That is the hard part about simply saying yes or no.
However, I do believe that the outreach campaigns and the public outreach that we have undertaken as a federal interdepartmental working group but also with our provincial colleagues and the profile that the issue has received over the last few years have led to a heightened level of awareness, and therefore hopefully a heightened level of reporting, which would suggest or lead one to believe that there are more crimes being committed. It may simply be that we are more aware of them now.
Senator Martin: Which is equally important.
Mr. Mackillop: It is equally important. Any time we introduce any new laws, there is a certain period of awareness, both on the application side — from the police, prosecutors and judges — and from the public in recognizing what the new crimes are. We move these forward because we believe it is an issue that needs to be addressed. If we are seeing the increased reporting, that is a good thing.
Ms. Cuillierrier: Building on what Mr. Mackillop said, the awareness part and the prevention we are doing with the Human Trafficking National Coordination Centre, after 29 years in policing, I have seen these waves. The best example is from back in the early 1980s in policing, when domestic violence amendments to the Criminal Code were made. All subjectivity was taken away from police officers, and if one found reasonable and probable grounds, someone usually got charged and help was given to people who were victimized and children if they were present in the home. It took a bit of time and awareness to start to incorporate that in their view of the world when officers answered calls.
I believe the same thing is happening in this case with human trafficking. We do not know what we do not know. It is difficult to know a baseline; but in our threat assessment, rather than trying to quantify the number of victims, we try to focus on the criminal organizations that are involved in this crime. We were not surprised, but we felt it is a great baseline to provide law enforcement in Canada with at least something to say it is happening and this is how it is happening. Here are some of the trends and gaps we need to work on. As you mentioned, the number of cases being reported has more than tripled.
The other thing about international trafficking is that it is really challenging for law enforcement to get people to come and disclose. The only way we accomplish that is by sensitizing new immigrants coming to Canada and letting them know that the police are people they can approach. Fortunately, in this country we have laws that protect them.
Senator Martin: Thank you for the work that you do.
Ms. McAuley: In slide 2, we showed the data from 2008. Those trends have been relatively stable in both the number and types of offences over the last five years. We will release 2009 data in July of this year. We are happy to come back and give you that information then.
Senator Dyck: From what you have said to the committee, it is clear that most women and children are trafficked for the purposes of commercial sexual exploitation or the sex trade. This bill is clearly intended to help prevent that and to deter traffickers from engaging in those activities.
My major concern is the lack of differentiation between trafficking for the purposes of putting minors into commercial sexual exploitation versus putting minors into other forced labour. They are being trafficked and subjected to that type of exploitation. They are fearful for their lives, yet the types of service they are put into are vastly different, in my opinion.
If you look at legislation in other countries, such as the U.S., Thailand and India, they have also imposed mandatory minimums, but in that case, they have imposed specific laws for putting minors into commercial sexual exploitation.
Do you think if this bill goes forward as is, including all forms of forced labour, that it could be subject to a court challenge because it does not differentiate between the two? Since the argument for the mandatory minimum is that it is similar to the sentencing provisions of, for example, living off the avails of prostitution, with the aggravated offence, do you think that if someone were charged for trafficking a minor for the purposes of forced labour, that might make Bill C-268 vulnerable to a court challenge? I am directing this specifically to Ms. Levman, but others may also wish to answer.
Ms. Levman: I cannot speculate as to what the potential outcome of a court challenge would be. All new offences are likely to be court challenged. Actually, we welcome that, because then we have a judicial statement on the constitutionality of our laws. I do not consider that to be a problem.
In this case, if the mandatory minimum penalty were challenged as a violation of section 12, the remedy would be to strike the mandatory minimum penalty. Therefore, the whole provision would not fall unless the provision itself was challenged under section 7 or another provision.
In relation to the forced labour issue, section 279.01 purposefully does not make a distinction between the types of labour or services that could be provided. This reflects the international consensus that any kind of exploitation — meaning somebody extracting labour or services from another person when they do not voluntarily give those services — is a huge human rights infringement and a serious problem of grave concern to free and democratic societies. Therefore, both are of significant concern to us.
The other issue is that it is not just the types of services that are extracted, but also we have to remember the means that are used to extract them. We do know that sexual assault is used frequently to keep victims in line, regardless of the kinds of labour services that they are being forced to provide. For example, in a domestic servitude case, you might find a woman who has been working from sun up to late at night and she is repeatedly sexually assaulted, as well as doing all the chores and taking care of children, et cetera. It is this idea that someone is forcing someone to do something and depriving them of their free will and autonomy that is of concern to us, and that is what section 279.01 addresses.
On the issue of forced labour, I think that the sponsor of the bill is right in stating that the criminal definition of exploitation in section 279.04 is a high bar. It is not meant to capture labour infractions. We have provincial laws and some federal laws, depending on which jurisdiction the employment lies in, that address people who treat their employees badly by not giving them proper breaks or minimum wage, and so on. It is not meant to replace that legislation. This is quite a high bar, and it was carefully drafted in keeping with existing Canadian criminal law to ensure that we have a bar that is provable in court — although we have yet to have judicial pronunciation on it; we look forward to that — as well as to carefully target what is considered to be harmful criminal conduct. There is exploitation that you can look up in a dictionary, which basically means to take advantage of someone else, and then there is the criminal definition of exploitation for the purposes of the trafficking offence in section 279.04, which sets a higher bar than that.
Senator Dyck: Do you believe the current provisions under the Criminal Code are working effectively with the broad definition of exploitation, or is it too soon to be able to tell?
Ms. Levman: I think it is probably too soon. A lawyer always looks for a judge to interpret a law, to see how it is really being implemented. I am encouraged by how my colleagues in law enforcement are implementing this, because that is where it starts. We cannot get anything into the courts without them being aware and laying the charges, and that is what they are doing. We are working with them to help with the education of law enforcement prosecutors so that we all understand how this piece of legislation, these offences, are meant work and how we think they ought to be interpreted. Of course, we will not know how they will be interpreted until a court actually interprets them, so we look forward to that.
Senator Callbeck: Thank you all for coming. On the chart from Statistics Canada, you gave us three charges — sex offences against children 0 to 5, children 6 to 11, and children 12 to 17, each by gender and by the accused-victim relationship. Ms. McAuley, you mentioned that the trend has been the same, roughly, for the last five years. If you went back five years and looked at these charts, there would not be a huge difference in any of these categories?
Ms. McAuley: We do not have those data in front of us right now. We would be happy to go back and provide that information. I said the overall trend and overall types of sentences have been the same. We do not have the data in front of us to know whether, if we broke it down by each of these age groups and categories for the accused-victim relationship, it would remain the same.
Senator Callbeck: I just wondered if you are looking at it apples to apples whether there would be differences there.
In the presentation from the RCMP, you said that since 2007 there have been five cases where a conviction has been secured. How many cases have there been?
Ms. Arsenault: There have been five cases where convictions under section 279.01 have been secured. Thirty-two cases are before the courts as we speak now where charges of human trafficking and other charges have been laid, but no convictions are secured yet; they are still before the courts.
Senator Callbeck: Is that since 2007?
Ms. Arsenault: Since the law came into being in 2005, but the first charge was laid in 2007.
Senator Callbeck: There are 32 cases before the courts right now?
Ms. Arsenault: Yes.
Senator Callbeck: How many have been dismissed where there was not a conviction? Is it a huge number?
Ms. Levman: I believe what my colleague means by "before the courts'' is that charges are being processed through the criminal justice system, so we do not have a final statement on whether there is a conviction. There are charges that have not been withdrawn or stayed or anything; they are being processed through the criminal justice system, and they involve charges under section 279.01 in addition to other related charges.
Senator Callbeck: There have been five convictions since 2007, right?
Ms. Levman: Yes, for section 279.01, but there have been other convictions in trafficking cases under other offences.
Senator Callbeck: How many cases have there been in total under that section? How many have been thrown out of the courts?
Ms. Levman: I see what you are saying. That we do not have with us today. I do not believe we have that information.
Ms. Arsenault: Would you like to know how many charges under section 279 have been thrown out?
Ms. Levman: You mean how many charges have been laid under section 279.01 and then withdrawn for whatever reason?
Senator Callbeck: Right.
Ms. Levman: I do not have that information.
Ms. Arsenault: I do not have the exact number. We are aware that for some cases the charge was withdrawn and the courts decided to go with other charges. I do not have the exact number.
Senator Callbeck: It is not a huge number?
Ms. Arsenault: No, not huge.
Ms. Levman: Not that we know of. You have to remember, there is a split jurisdiction. We are federal, and these offences are implemented by provinces. We rely on goodwill or good relationships with our colleagues in provinces to get some of this information. That is why my colleagues, when they present the numbers to you, say "at least'' or "as far as we know,'' because there may be other trafficking cases out there that we are not aware of.
Senator Callbeck: Are the minors who are victims of trafficking usually Canadian citizens or are they from other countries? What roughly would be the breakdown there, percentage-wise?
Ms. Arsenault: In all the cases where convictions were secured under section 279 and in the 32 cases before the courts, the minors were all Canadian citizens.
Ms. Cuillierrier: We are at bit of a disadvantage because we do not have baseline information on victimization rates. The other issue we need to be mindful of in law enforcement in these investigations on an international level is that very often there is mistrust, cultural issues, language barriers. Papers or documents are kept by the traffickers. Those minors are usually in a dependent and vulnerable position. As for numbers, again, we do not know the prevalence. I believe Public Safety Canada is working with Statistics Canada to address that, which is a big piece that is needed.
Senator Plett: Slide 12 of the Statistics Canada presentation shows sex offences against children aged 0 to 17 years by gender, province and territory. I am from Manitoba, but I am happy to see Ontario is leading there in being the lowest. Manitoba is somewhere in the middle.
What is the correlation? Why are some provinces higher than others? We have heard many times that we have issues that may be due to Aboriginal people, yet I have worked all over Northern Ontario and there are many Aboriginal people in Northern Ontario, as there are in Manitoba. Can you tell us some of the reasons why Manitoba and Saskatchewan would be higher than Ontario?
Ms. McAuley: We receive information directly from the police services. We have a count of the number of incidents. We do not have the contextual information around that. What you see here is the information we get from police services that are in each of these provinces or territories.
Senator Plett: You would not have information as to whether a certain percentage of these people are Aboriginal or some other ethnic group?
Ms. McAuley: I would have to get back to you about whether we would be able to create information for Aboriginals. My off-the-top answer would be no because there is an initiative working now with police services to collect that identity information. I would say no at this point.
The Chair: If that or any other information will be provided by any of the witnesses, please send it to the clerk, and we will distribute it to all members of the committee.
That brings us to the end of our meeting today. Thank you to all who have appeared, made presentations, answered questions and helped to provide us the kind of information we need to further process Bill C-268. That completes this meeting, but we are back tomorrow morning at 10:30.
(The committee adjourned.)