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