Debates of the Senate  
3rd Session, 40th Parliament,Volume 147, Issue 37.
  Thursday, June 10, 2010
 
Criminal Code- Bill to Amend- Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Martin, seconded by the Honourable Senator Wallin, for the third reading of Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years).

Hon. Lillian Eva Dyck: Honourable senators, I rise today at third reading of Bill C-268, An Act to amend the Criminal Code, minimum sentences for offences involving trafficking of persons under the age of eighteen years.

First, let me thank the Chair of the Standing Senate Committee on Social Affairs, Science and Technology, the Honourable Senator Eggleton, for his excellent work on the committee in guiding us through the hearings on Bill C-268. I also thank the sponsor of the bill, the Honourable Senator Martin, the witnesses who appeared before the committee, the staff and the members of the committee for all the work they did on this bill.

Honourable senators may recall that at second reading, my analysis as critic of the bill revealed three areas that could be strengthened: first, by including higher mandatory minimum sentences; second, by including two age categories of minors; and, third, by including sex trafficking specifically.

In all three instances, it seemed reasonable at the time to suggest that we could meet the stringent and tough penalties for trafficking of minors set by the U.S.A., Thailand and India, the three countries that Joy Smith highlighted on her website. However, having listened to the witnesses' testimony at the Standing Senate Committee on Social Affairs, Science and Technology, I have since concluded that arguing for amendments to the bill that would set higher mandatory minimum sentences was not the best route to take. Similarly, it became clear that introducing an amendment to set higher mandatory minimum sentences for younger ages of minors was also not a good idea.

Let me explain why I came to these conclusions by telling you what the witnesses said to the Standing Senate Committee on Social Affairs, Science and Technology with regard to mandatory minimum sentences.

Mr. Michael Spratt, from the Criminal Lawyers' Association, was opposed to the use of mandatory minimum sentences. He stated that one problem with minimum mandatory sentences

. . . is that they represent a one-size-fits-all solution that limits or removes discretion from judges, and judicial discretion is very important in our system. Limiting judicial discretion can result in unfair and unjust results.

Ms. Nadja Pollaert, from the International Bureau for Children's Rights, stated:

Victims find themselves in a circle of crime. Some victims recruit new victims into sex trafficking.

She indicated that such recruiters might be coerced by their trafficker into recruiting but if found guilty of trafficking a minor, the recruiter, who may only have just turned 18, would receive a 5-year mandatory minimum sentence. While not every committee member seemed to have complete faith in our judges to impose tough enough sentences for trafficking of minors, it seemed reasonable to me to leave the option open for judges to impose a sentence longer than the five-year mandatory minimum sentence of Bill C-268 when the factors of the particular case warrant a longer sentence, such as when a very young minor, for example a nine-year-old girl, is trafficked. Similarly, rather than introduce an amendment at committee to set higher mandatory minimum sentences that match those found in the trafficking laws in the U.S.A., Thailand and India, it seems wiser to leave the five-year mandatory minimum sentence in the bill as is and leave it to the judge to decide, based upon all of the factors of a particular case, whether a sentence greater that the five-year mandatory minimum sentence should be handed down to someone found guilty of trafficking a minor.

Honourable senators, let me say a few more things about mandatory minimum sentences and their effectiveness. In terms of advantages, Ms. Smith argued that a five-year mandatory minimum sentence was good because, first, a five-year mandatory minimum sentence separated the victim from the offender for a long enough time for the victim to feel protected; and second, a five-year mandatory minimum sentence put those found guilty of the offence behind bars for an appropriate length of time; and third, a five-year mandatory minimum sentence would serve as a deterrent to anyone considering trafficking a minor.

However, the effectiveness of mandatory minimum sentences as a deterrent to future crimes was not completely accepted as factual by other witnesses. Mr. Spratt, from the Criminal Lawyers' Association and Professor John Winterdyk, from the Center for Criminology and Justice Research at Mount Royal University, questioned the effectiveness of mandatory minimum sentence as a deterrent to traffickers. About mandatory minimum sentences, Mr. Spratt stated:

There seems to be little evidence, or the evidence is equivocal, that they assist in specific deterrence and general deterrence.

Interestingly, it turned out that there are disadvantages to mandatory minimum sentences. First, they will likely decrease guilty pleas; and second, this will result in an increased need for victims to testify. It is possible that they and their parents will have to revisit and relive to some extent the traumatic experiences to which the victims were subjected.

Mr. Jamie Chaffe, President of the Canadian Association of Crown Counsel, stated:

. . . mandatory minimum sentences will reduce guilty pleas to such charges and will increase the rate at which these matters go to trial.

He also said:

If there is a guilty plea, the victim would not have to testify.

He continued:

That is one of the ways that accused persons mitigate their sentence, by not putting the victim through a criminal trial, which, at best, is a very unpleasant thing for a victim.

In other words, an unanticipated outcome of Bill C-268 is that it might increase the need for victims who are minors to testify and, in so doing, they may well suffer some re-victimization. Mr. Chaffe said the victims "will likely need psychological supports with respect to the trauma they have endured."

Mr. Chaffe also said:

. . . they may well exhibit issues with respect to memory, which is often a problem with children in any event and particularly when trauma is involved.

Therefore, honourable senators, imposing a mandatory minimum sentence can create a loophole that seems to benefit the accused. The accused trafficker can indicate that he or she will plead guilty to another offence. Both Mr. Chaffe and Mr. Spratt told the Standing Senate Committee on Social Affairs, Science and Technology that mandatory minimum sentences increase plea bargaining. Mr. Spratt stated that with plea bargaining:

The discretion moves to police officers what charges they will lay . . .

He continued:

. . . a great deal of discretion rests with the Crown attorneys about what charges they will proceed with and what plea negotiations they will enter into.

All of this happens out of public view.

My final comments bring up the issue of the lack of differentiation in Bill C-268 between trafficking of minors for the purposes of commercial sexual exploitation versus other forms of forced labour. The U.S.A., Thailand and India all have mandatory minimum sentences for these offences of sex trafficking of minors, but they do not have mandatory minimum sentences for the forced labour trafficking of minors. Thus, at least in these three countries, their civil societies, by and large, seem to consider sex trafficking of minors more severe than trafficking for the purposes of forced labour.

Virtually everyone who contacted us to pass this bill quickly focused on trafficking of minors for commercial sexual exploitation. For example, the postcard campaign shows a young girl about eight years old along with words such as "children are sexually trafficked and abused by predators," and "sex trafficking is the major form of human trafficking." Ms. Nathalie Levman, from the Department of Justice Canada, told the committee that the UN estimates that 75 per cent are trafficked for sexual exploitation and 25 per cent for forced labour. However, 98 per cent of women and children are trafficked for commercial sexual exploitation.

At second reading, I argued that trafficking for the purposes of exploitation and the commercial sex trade ought to receive special consideration and be considered more heinous than trafficking for the purpose of other forms of forced labour, such as domestic or restaurant services. However, none of the witnesses could see the distinction between these forms of forced labour. Interestingly, in justifying a mandatory minimum sentence for trafficking for forced labour, Ms. Levman stated:

. . .victims may be trafficked for the purposes of forced labour, but then are routinely sexually abused by their trafficker, as a way to keep control.

Professor Benjamin Perrin, from the Faculty of Law at the University of British Columbia, stated:

Another case exposes the false distinction often made in debates between sex trafficking and forced labour. In many instances, these forms of exploitation are merged. In our research, we came across a case involving a 16-year-old girl from Saint Vincent and the Grenadines. She was brought to Canada to work as a babysitter and ended up being essentially in domestic servitude forced to work long hours, her papers taken, physically and sexually abused during the night.

Honourable senators, the key point is this: The case of victims trafficked for the purpose of forced labour and then sexually abused by their trafficker is inherently different from the case where the victims are trafficked for the explicit purpose to enter the sex trade. Where a victim is trafficked for forced labour, such as babysitter, and is then sexually abused, the offender would be liable to a six-year mandatory minimum because aggravated sexual assault will be an aggravated offence under Bill C-268. However, the same does not apply for a trafficker who traffics minors for the purpose of exploiting them in the sex trade. He or she would receive only a five-year mandatory minimum sentence.

It should be noted that the trafficker may not necessarily be the person who is sexually assaulting the minor or who is selling the sexual services of the minor, and that the latter person, the person who is actually selling the minor for sexual services, can be charged with living off the avails of a prostituted person.

The international labour convention, to which Canada is a signatory, identifies the worst forms of child labour. Commercial sexual exploitation, child trafficking and drug trafficking are among those classified as the worst forms of child labour.

At the committee, I introduced a motion to amend Bill C-268 to include the trafficking of minors for the sex trade essentially as an aggravated offence with a six-year mandatory minimum sentence, while the offence of trafficking of minors for other types of forced labour would remain as is with a five-year mandatory minimum, but it did not pass. However, I still think it is an important distinction and, if the timing were different, I would have made a motion to introduce the amendment here in the chamber. I decided against this because I do not want to endanger the timely passage of the bill. There is just not enough time before summer recess.

Honourable senators, in my research on trafficking I found on the Internet just a few weeks ago a guide entitled Combating Trafficking in Persons A Handbook for Parliamentarians, published by the Inter-Parliamentary Union and the United Nations Office on Drugs and Crime in 2009, a very recent publication. I also found a publication entitled Handbook for Parliamentarians: Combating Child Trafficking, also published by the Inter-Parliamentary Union and UNICEF in 2005. It is a shame that none of the witnesses, including Ms. Smith and Professor Perrin, seemed to know that these reports exist.

The handbook on trafficking in persons makes it clear that there are three constitutive elements to the crime of trafficking: first, an act, or what is done the recruitment, transportation, transfer, harbouring or receipt of persons; second, the means, or how it is done the threat or use of force or other forms of coercion, abduction, fraud, deception and so on; and, third, an exploitive purpose, or why it is done this includes, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs.

The trafficking in persons protocol requires that the crime of trafficking be defined through a combination of the three constituent elements, though in some cases these individual elements will constitute criminal offences independently. Thus, it is clear, for example, that traffickers can be charged with trafficking and with other offences, as has been done, for example, in the case we heard about time and time again, Imani Nakpangi, who was sentenced to three years for human trafficking and also sentenced to two years for living off the avails of an underaged prostitute. He received two sentences for two charges.

The handbook on child trafficking states:

Lawmakers need to establish a distinct criminal offence of trafficking in persons that includes all forms and potential victims of trafficking.

Thus, it is clear that all purposes for which victims are trafficked ought to be included in legislation. In other words, commercial sexual exploitation and forced labour ought to be included, as the proponents of Bill C-268 suggested. It is too bad that they did not seem to know about the Inter-Parliamentary Union recommendations, which would have added considerable weight to their arguments. It would have been much more convincing.

Here is another part of the Inter-Parliamentary Union handbook that should have been presented by the bill's proponents:

A state's criminal law should include stringent penalties if the victim is under the age of 18, reflecting this in appropriate mandatory minimum sentences.

The Inter-Parliamentary Union handbook on child trafficking recommends mandatory minimum sentences for the offence of trafficking in minors. It seems to me that is a pretty good reason to include mandatory minimum sentences in Bill C-268.

The Inter-Parliamentary Union handbook also states:

Aggravating circumstances that carry higher penalties should include trafficking that involves public officials . . . organized criminal groups, a person who is in a position of authority over children (such as school officials, persons charged with the task of protecting children or public welfare in general), conspiracy to traffic, and trafficking a spouse, family member or guardian.

The proponents for Bill C-268 did not incorporate such aggravating circumstances into the bill, nor did they even mention the IPU handbooks.

Honourable senators, Bill C-268 is a good starting point. Witnesses indicated that it is unlikely to serve as a deterrent, that it will decrease guilty pleas, that it will increase plea bargaining, that it may have an unintended effect of forcing victims to testify, that it may not be fair to some offenders, but I will vote in favour of passing Bill C-268 and offer the information from the Inter-Parliamentary Union handbooks on mandatory minimum sentences to support this decision.

The Hon. the Speaker pro tempore: Honourable Senator Dyck, will you accept a question?

Senator Dyck: Yes.

Hon. Anne C. Cools: Honourable senators, I thank Senator Dyck very much for placing before us a cameo and a summary of the testimony and the events in the committee.

As I was listening to her, I was aware that this is a bill to protect children, but yet there has not been a single witness called who is in the business of protecting children. I am just wondering if the committee took a decision to exclude such witnesses. I am speaking, of course, about those in child protection agencies across the country who are actually in the business of protecting children. They are the ones who apprehend them and so on. I am thinking of the child protection agencies. I am also thinking of what we used to call the official guardians of each province, the guardians of children. In Ontario, we call it now the Children's Lawyer, but they are the official guardians, and also I am thinking of the attorneys general and ministers of each province, because they are the responsible ministers that are actually charged with protecting children.

I am just wondering why, if the honourable senator would know, since she is the only source of information so far, is it that none of the child protection personnel of the country were invited to testify?

Senator Dyck: I thank the honourable senator for the question.

I am not able to answer because I do not know what the rationale overall was for selecting witnesses. Perhaps the question should be directed to someone else. It is a good question, but the committee was focusing on the legislative aspects of bill. What the honourable senator is talking about, child protection and so on, probably falls into a different category of protecting of children, which we must not forget about, but it is certainly not part of the bill itself.

Senator Cools: I thank the honourable senator very much for that.

Child protection is, in respect of the welfare side of it, a provincial matter, and the administration of it is provincial, but the creation of Criminal Code provisions that protect children is clearly federal and only ours.

Honourable senators, since protecting children is also clearly a provincial matter, these people who are in the business of it have huge powers. They can apprehend a child at a moment's notice. I had just assumed that the committee would have heard from some of them, even about the number of young people they have had to apprehend, the number of court orders they have had to issue, and the sorts of actions they take on behalf of trafficked children.

From what the honourable senator is saying, I gather the committee never even considered hearing them, the child protection people who must protect trafficked children. That is what I am understanding.

Senator Dyck: I thank the honourable senator for the question. I am not sure whether such people were put forward as witnesses, but I would think that the type of organizations that Senator Cools seems to be talking about would be more involved in apprehending children from their families, from an adopted parent or whatever. I do not know. It is not directly related to the bill, anyway.

Senator Cools: Honourable senators, if any child is at risk under any conditions, trafficked or otherwise, the powers are there to protect them. I have played a role in many child apprehensions, and the powers are pretty profound to apprehend and take control of children at risk.

I had just assumed, to the extent that we would open up the Criminal Code in the name of protecting children, that we would have looked at how this proposed new law, Bill C-268, would impact and the effect it would have on the ground with the people who actually work in child protection.

Remember, honourable senators, that there are two sides to child protection. There is the protecting of children from crime, and then there is the welfare side. I think in Senator Dyck's responses to me, she was speaking of the welfare side; in other words, the poor child who is hungry and needs to be fed, as opposed to, for example, a child who was rented out by its parent for sexual purposes.