2nd Session, 41st Parliament,

Volume 149, Issue 140

Tuesday, May 12, 2015

The Honourable Leo Housakos, Speaker

Criminal Code

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Boisvenu, seconded by the Honourable Senator Batters, for the third reading of Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons).

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to share my concerns regarding Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons). As you are all aware, exploitation and trafficking are issues near and dear to me. I have worked closely with senators and members of Parliament every time a bill of this nature has been introduced. The truth is we are never finished with protecting the most vulnerable people of our society.

The welfare of women, children and the most marginalized members of communities is sometimes in the hands of lawmakers, and this is especially true when it comes to the victims of exploitation, sexual exploitation and human trafficking. Unfortunately, Bill C-452 before us does not do nearly enough to support victims or improve our capacity to find the perpetrators committing these awful crimes. In fact, what the bill does do is compromise the integrity of our judicial system by denying the accused the presumption of innocence and by binding the discretion of a judge to impose an appropriate sentence, all this with no real benefits for victims.

The crime of trafficking in persons and its related offences are codified in Canadian law in sections 279.01 to 279.04 of the Criminal Code of Canada. It is an indictable offence, which means that as a society, we as Canadian parliamentarians have decided that human trafficking is one of the most serious crimes that one can commit. Depending on the case, the crime of human trafficking can result in minimum sentences of five or six years and, in some instances, can result in a life sentence.

Honourable senators, the seriousness with which we treat human trafficking is warranted and necessary. We can all agree that human trafficking is the modern term for slavery. I have said in this chamber before that human trafficking and slavery are one and the same. It is an assault on human dignity, a disturbing abuse of basic human rights and a violation of the natural laws that are afforded to every human being.

As with many offences, the offence of human trafficking is made up of a number of elements. Currently, according to section 279.01, in order to convict an accused person of human trafficking, the Crown must prove two elements: First, the Crown must establish that the accused has recruited, transported, transferred, received, held, concealed or harboured a person, or that the accused exercised control, direction or influence over the movements of a person. Second, the Crown must prove that the accused has executed one of these actions for the purpose of exploiting that person or facilitating their exploitation. Importantly, there is no form of valid consent for any of these actions.

In legal terms, the first element is the actus reus, the act of the crime. The second element is the mens rea, the intent to commit the crime. Normally, where there is no mens rea, the moral blameworthiness of the accused is much lower. An important addition to the trafficking-in-persons section of the Criminal Code is the definition in section 279.04 of “exploitation” and the Crown’s obligation to prove it. Exploitation is defined as causing another person to provide or offer to provide labour or service, which, if not provided, would threaten their own safety or the safety of someone known to them.

Factors used to determine whether someone has been exploited are the use of threats, force, coercion, deception or the abuse of a position of trust, power or authority. It is of great importance to note that the offence of human trafficking as it currently appears in the Criminal Code must be proven by the Crown beyond any reasonable doubt, as is the case normally in offences of a criminal nature. This burden of proof is the response to the long-standing common-law principle of the presumption of innocence.

Canadians have given such primordial importance to this principle enshrined in section 11(d) of the Charter of Rights and Freedoms, which reads:

  1. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal . . .

The Charter, as with the rest of the Constitution, is the law that governs all laws. This means that the laws we pass in this chamber must be in accordance with the Charter. At the Senate Legal Committee, we heard from Tony Paisana, Executive Member, Criminal Justice Section, Canadian Bar Association. On behalf of the CBA, Mr. Paisana explained the importance of the presumption of innocence. He said:

The presumption of innocence is a fundamental cornerstone of our criminal justice system. It is a time-honoured principle that is enshrined in the constitution. Allow me to quote a well-known legal maxim originating from the 6th century:

The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.

For well over 1,500 years, we’ve understood that proving a negative is an elusive concept that should not normally form part of defending a criminal charge, particularly one as serious as this. Yet, in our submission, Bill C-452 proposes to do just that — force an accused to muster evidence of a negative, even though the Crown may not have proven the central features of the human trafficking offence.

Senators, Bill C-452 proposes to make a fundamental shift in this constitutionally enshrined procedural guarantee. It proposes to shift an important aspect of the burden of proof onto the accused, no longer abiding by the principle of the presumption of innocence. The text of the bill is as follows:

. . . evidence that a person who is not exploited lives with or is habitually in the company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation.

In practical terms, if this bill is passed, the Crown will not have to prove all the elements of the offence of human trafficking. All that the Crown will have to do is prove beyond a reasonable doubt that the accused lived with or was habitually in the company of an exploited person. That in itself will be enough evidence to automatically prove the remaining element, which is the intent to exploit. In other words, once it is proven that a person lives with or is habitually in the company of an exploited person, it must then be concluded that the person’s intent was to exploit or facilitate exploitation of the victim.

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In legal terms, the Crown must only prove the actus reus element of the offence, when normally the Crown must prove the actus reus and mens rea beyond a reasonable doubt.

The Canadian Bar Association’s submissions included an example showing the troubling reality that this presumption presents. Senators, the example goes as follows:

Ms. Smith is hired as a cleaner for a local janitorial service. She works six days a week and often takes double-shifts to make ends meet. She usually works alongside Ms. Martinez, a 17 year old young lady from Guatemala. As the more experienced worker, Ms. Smith supervises Ms. Martinez’s work and breaks. Ms. Martinez is an illegal immigrant who was trafficked to Canada by their mutual employer, Mr. Jones, but Ms. Smith has no knowledge of that situation. Ms. Martinez is unpaid, and has been threatened with harm if she does not continue working. Again, Ms. Smith is unaware of this arrangement and assumes that Ms. Martinez works for pay as she does.

The police discover Ms. Martinez’s exploitation and arrest Mr. Jones and Ms. Smith at the workplace. The Crown can prove that Ms. Martinez was being exploited by Mr. Jones and that Ms. Smith spent over 60 hours a week with Ms. Martinez on the job.

If Bill C-452 was law in Canada, there would be a rebuttable presumption of guilt against Ms. Smith because she was not exploited but was habitually in the company of Ms. Martinez, a person who was exploited. If Ms. Smith was unable to produce evidence to the contrary, the Crown could prove that Ms. Smith exercised control, direction or influence over the movements of Ms. Martinez for the purpose of exploiting her or facilitating her exploitation. If Ms. Smith could not produce evidence to the contrary, then she would be liable to a mandatory minimum penalty of five years’ imprisonment. Honourable senators, I remind you that the Charter ensures that:

Any person charged with an offence has the right . . .

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal . . .

This section, 11(d), imposes the requirement for an individual to be proven guilty beyond a reasonable doubt. It also imposes this burden to prove guilt on the Crown. When an individual is arrested and charged, their constitutionally enshrined right to life, liberty and security is paralyzed by the state. It is indeed the state — the police and the government’s lawyers — that have decided to take away a person’s freedom. So it is not surprising that the state has the responsibility to prove its case beyond any reasonable doubt.

In a criminal trial, the Crown makes its case first. If the Crown does not fulfill its duties of proving its case, then the accused does not even need to respond with a defence. If the Crown leaves reasonable doubt in its evidence and arguments, then the accused cannot be convicted.

Honourable senators, this is very important. This means that the Crown must make its case, convincing the judge or the jury beyond a reasonable doubt, even before the accused responds by testifying or calling other evidence.

I would like to restate the importance of this requirement: The presumption of innocence means that in order to be found guilty of a criminal offence, the Crown must prove beyond a reasonable doubt, before the accused makes their case.

In practice, this means that if the Crown does not put forth evidence that convinces the judge or jury beyond a reasonable doubt, then the defence does not even need to respond because a reasonable doubt exists and the accused cannot be convicted. If a law allows an accused to be convicted even if there is a reasonable doubt, then that law is unconstitutional.

Bill C-452 proposed a presumption that allows for an individual to be convicted of human trafficking or exploitation even though there may be reasonable doubt as to their actual culpability.

Let me explain. A presumption like the one found in Bill C-452 imposes what is called an “evidential burden” on the accused. With an evidential burden there is a basic fact and a presumed fact. Proof of the basic fact substitutes proof of the presumed fact.

Honourable senators, let me remind you again of the actual text of the bill, which states:

For the purposes of subsections (1) and 279.011(1), evidence that a person who is not exploited lives with or is habitually in the company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation.

To break it down, the basic fact is living with or habitually being in the company of an exploited person. The presumed fact is the intent to exploit. As we have seen before, the basic fact represents the actus reus and the presumed fact represents the mens reain this particular offence.

According to this type of presumption, if the basic fact is proven beyond a reasonable doubt, then it is mandatory to conclude that the presumed fact is true. There is no discretion for the judge or jury to decide if they believe this conclusion. The judge or jury may very well have reasonable doubt as to whether there was intent to exploit.

Take the example of Ms. Martinez. There are many reasons why an individual may be living with or be habitually in the presence of an exploited person. What if the victim of the exploitation has roommates who are not aware of the exploitation that is going on? What if the victim of the exploitation interacts on a daily basis with family members and friends of the perpetrator?

A basic fact may rationally tend to prove a presumed fact, but that tendency is not proof beyond a reasonable doubt. Applied to Bill C-452, living with or being habitually in the presence of may tend to prove intent to exploit, but there are enough other scenarios that this connection is not necessarily true. There is in fact a reasonable doubt.

Senators, the Supreme Court of Canada has ruled that a reasonable doubt is not based upon sympathy or prejudice but rather upon reason and common sense. A reasonable doubt must be logically connected to the evidence or the absence of evidence. It does not concern itself of a frivolous doubt.

There are many rational and common-sense reasons for a person to be living with or habitually in the company of an exploited person — too many for the constitutional violations that this bill before us suggests we make.

It is true that the accused may bring evidence forward to rebut the presumption. The problem arises when the accused does not have that evidence. Mr. Paisana from the Canadian Bar Association said it very clearly:

The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.

For well over 1,500 years, we’ve understood that proving a negative is an elusive concept that should not normally form part of defending a criminal charge, particularly one as serious as this. Yet, in our submission, Bill C-452 proposes to do just that: force an accused to muster evidence of a negative, even though the Crown may not have proven the central features of the human trafficking offence.

Honourable senators, the courts must search for the truth, but also for fairness. The imbalance of power and resources between the parties in a criminal trial and the potential for the state to arbitrarily take advantage of that imbalance are precisely why the Crown must prove its case beyond a reasonable doubt first, without the accused needing to bring forward any evidence. If Ms. Martinez could not produce evidence to rebut the presumption, she would be sent to prison for a minimum of five years.

According to Bill C-452, the Crown does not have to prove all the elements of the offence of human trafficking in order to put someone in prison for it. This is a crystal clear violation of the presumption of innocence. The only possible way for the proposed presumption to be upheld as constitutional is if it satisfies a section 1 analysis. Section 1 of the Charter will uphold a prima facie unconstitutional law that is demonstrably justified in a free and democratic society.

The test first asks if the legislative objective is legitimate. If it is, then the law must be rationally linked to the objective and must minimally impair the Charter right, and the effect of the law must be proportional to the legislative objective.

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Proponents of the evidential shift in this bill will refer you to the Supreme Court decision called R. v. Downey and will use it as an example of when a presumption like the one we are discussing here was upheld by the court. However, it is of the utmost importance to remember that in Downey, the presumption itself was found in violation of section 11(d) of the Charter.

In fact, the entire bench agreed that the presumption of innocence was violated. It was at the section 1 analysis where a divided bench then decided that this violation could be justified.

Normally, lower courts are bound to the Supreme Court’s decisions. This is how the principle of stare decisis works in our common law system. So you may think that a court would uphold the presumption in Bill C-452 because it must follow the Downeydecision.

However, just last year we learned in the Bedford case that the Constitution is not subordinate to stare decisis. Lower courts may revisit matters when new legal issues are raised if the common law on that matter has evolved or if there is a significant change in circumstances or evidence.

Honourable senators, Downey was decided 23 years ago. Not only would a constitutional challenge of this presumption include new evidence — social science evidence similar to that used in Bedford — but the law surrounding the section 1 analysis has changed since then. For example, these days a section 1 analysis would likely involve a closer look at rational connection.

The courts will ask not only if the law is generally rationally connected to its purpose but also, in the case of a presumption, if the basic fact of the presumption is rationally connected to the presumed fact.

Justice McLachlin, as she then was, expressed in her dissent that the presumption in Downey is so over-broad that it becomes arbitrary. In clauses that shift the onus of proof, the rational connection must pass a high-level threshold. Justice McLachlin wrote that the over-breadth and arbitrariness of the presumption made it irrational.

Her dissent over two decades ago is important in looking at Bill C-452 because, as you may know, the Charter law of over-breadth and arbitrariness has significantly developed since then. Our Constitution is a living tree that evolves along with the progressive changes in society.

Honourable senators, I will quote again Mr. Paisana from the Canadian Bar Association, who explained this to our committee very well:

First, proponents of the bill suggest that because the language used in this bill was upheld in a decision called Downeyfrom about 20 years ago, that it will again survive constitutional scrutiny. Downey was a case with a similarly worded presumption which formed part of the former living off the avails offence. As you all know, of course, that offence was struck down recently in the Bedford decision.

In Downey, the Supreme Court split four to three, ultimately upholding this similarly worded presumption. The current Chief Justice, who was of course the driving force behind the Bedford decision, dissented in Downey, finding that the presumption was unconstitutional. Chief Justice McLachlin’s reasons were prophetic. They referred to themes which were later repeated in the Bedford decision, including the fact that an offence will become unconstitutional when it has the potential to capture innocent bystanders who associate with victims of crime.

The second point we will make is that the Chief Justice explained in her dissent in Downey that the presumption as worded suffers from a lack of internal rational connection. While it’s true that some people habitually in the company of victims of exploitation will be responsible for that condition, it does not always work out that way. There can be many individuals who are habitually in the company of an exploited person who either have no knowledge of the exploitation or have no control over it. . . .

The third point we make is that this presumption does not minimally impair the right to be presumed innocent, which is another aspect or feature of a section 1 analysis. The presumption will invariably capture people who are not the focus of the objective of the human trafficking offence. Innocent bystanders, including co-workers or co-tenants with no knowledge of the victim’s exploitation, would be captured by this legislation. This means the legislation suffers from what we call over-breadth and would therefore not be saved under section 1. As the Chief Justice explained, legislation that is over-broad is, by definition, irrational.

Another witness who came to speak to us was Mr. Leo Russomanno. He represented the Criminal Lawyers’ Association and also spoke to the constitutionality of the presumption in Bill C-452.

About the Downey decision and the irrationality of the presumption, he said:

If you look at Chief Justice McLachlin’s analysis under section 1, rational connections, she says that the majority fails to conduct a comprehensive rational connections analysis. What the majority did in that case was to look at external rationality and not internal rationality. External rationality, as she mentions in paragraph 64 to 66 of the Downeyjudgment, deals with whether or not the effect of the legislation would be connected to the purpose of the legislation itself. Internal rationality relates to whether or not the presumed facts are rationally connected to the actual facts.

One can easily come up with examples, as one did with “living on the avails” in the Bedford case, of individuals who would be caught up within this provision who are not necessarily in a position of exploitation, and they would be effectively required to prove their innocence or have the onus of raising a reasonable doubt, when virtually the entirety of our criminal justice system operates in the exact opposite way.

Mr. Paisana’s and Mr. Russomanno’s reminder that the living-on-the-avails clause that was struck down in Bedford for violating section 7 of the Charter is helpful in understanding how the courts will analyze this presumption in Bill C-452 today.

Let me elaborate. Previously, the Criminal Code had a provision that an individual who “lives wholly or in part on the avails of prostitution of another person” is guilty of an indictable offence. Another provision created a presumption that read:

Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution . . .

This particular presumption was not challenged in the Bedford decision, but it is intrinsically tied to the living-off-the-avails provision that was challenged. The provision was found to be contrary to the section 7 guarantee to security of the person.

A short section 1 analysis explained that because the provision captures non-exploitive individuals like drivers, bodyguards, receptionists and accountants that work with prostitutes, the law is not minimally impairing.

The provision was also found to be disproportionate because the “effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships.”

This section 1 analysis would most certainly be revisited in a constitutional evaluation of the presumption in Bill C-452. Different Charter rights are being violated — section 11(d) instead of section 7 — but the same section 1 issues are present.

That is, in the same way that the Bedford living-on-the-avails provision was disproportionate for capturing innocent bystanders, the presumption in Bill C-452 catches innocent bystanders.

It is clear that we cannot pass a law that is so over-broad that it easily captures innocent bystanders. We cannot pass a law that is so over-broad that it loses its rationality. The shift in the onus of proof in Bill C-452 is unconstitutional, and it will not be upheld in court.

At the same time, our legal system cannot leave the victims of exploitation without any safeguards. That is also clear. There are too many vulnerable victims in our criminal justice system — women, children, victims of sexual and physical violence. Their rights must be upheld, and we must find ways to protect their interests after they have experienced unimaginable trauma.

Presently, these victims testify through closed-circuit television or by other procedural means of admitting evidence. Our common law has evolved to accommodate.

What I would like to see happen next, honourable senators, is for us to find ways to protect these victims before they even become victims of unimaginable trauma.

We must craft law and implement policies that have real impacts on crime prevention and the victims of these crimes. A narrow-minded focus on hard criminal law is naive. That is why I fully and wholeheartedly support section 5 of Bill C-452, which adds human trafficking and exploitation to the list of offences liable to forfeiture of proceeds of crime procedures.

The International Labour Organization reports that forced labour in the private economy generates US$150 billion annually in profits and $99 billion from commercial sexual exploitation alone.

Human trafficking is a highly sophisticated global enterprise. At any given time there are 4.5 million victims worldwide forced into sexual exploitation, and there are another 14.2 million exploited for labour in industries such as agriculture, construction, domestic work or manufacturing. Canada holds its fair share of this industry, unfortunately, within its very own borders and via Canadian criminals travelling abroad.

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Forfeiting the property and profits from the perpetrators of these offenders is just a start. Even this provision of the bill will not change anything for the girls, women and other vulnerable people being victimized every day in Canada if it is not followed by a meaningful plan to provide aftercare and to strengthen preventive justice.

Aftercare is about more than the criminal law. It is about school, education, relationship-building and health.

We say that we are a sophisticated, developed nation here in Canada, but “developed” does not mean that we are done. Yes, steps have been taken and legislative progress has been made. Every time this issue has come before us, I have spoken about the fundamental values of human dignity that we as Canadians hold close to our identity. And yet, I walk the streets of the Downtown Eastside Vancouver and the women and children I see there are not benefiting from all the laws we’ve passed. I keep seeing the same girl, the same woman in the same alley, but each time I see her, her eyes are darker and her face is paler. We keep promising that the next law will make lives better. Senators, this is just not the case.

I cannot bring myself to believe that the eradication of human trafficking and exploitation is a partisan issue. Of course it is not. We are all here today believing strongly in the same fundamental goal: to harshly criminalize perpetrators of trafficking and to deliver justice to the victims.

This bill will not fulfill its goal if it is not accompanied by resources: resources in the police force working here in Canada and abroad; resources to properly train our police officers and to modernize our data-sharing systems; and especially resources to support victims of these crimes to come back into a safe, healthy and fulfilling life.

The forfeiture of proceeds provision in this bill is a start, but we cannot leave this issue here. Surely we are able to do more for vulnerable Canadians.

[Translation]

Senators, I will let my colleagues speak about clause 3 of this bill. In a nutshell, this clause imposes consecutive sentences on individuals who are found guilty of trafficking and exploitation. Of course, offenders must be given a harsh sentence for these heinous crimes. That sentence must be founded in law and determined on the basis of the circumstances. That is why our justice system has historically left it up to judges to impose sentences. Judges are the ones who are most familiar with the circumstances of the case.

My main concern with regard to the consecutive sentences imposed by this bill is that the presumption in this bill creates an opportunity to blame innocent people.

[English]

Honourable senators, you all know that the criminal law is a careful balance of individual rights and freedoms on the one hand, and the safety and security of the public on the other. It is not an easy task to undertake, but it is one that we have decided to tackle.

Bill C-452 does not strike that right balance. Unfortunately, the victims of human trafficking and exploitation will not see any real benefits. Not enough instances of these crimes are successfully investigated because of a lack of proper social infrastructure and communication between agencies, levels of government, policing communities, NGOs and academia.

The presumption proposed in the bill has an honourable intention and that is to take down barriers for victims testifying against their abusers. Unfortunately, the denial of the presumption of innocence is not the correct balance. Too many other innocent bystanders will become criminalized when, all the while, we could very well have made other procedural assurances and changes that would attain the common goal.

Years of constitutional litigation will ensue on this matter and, quite frankly, it will take away from the real issue, which is the lives and well-being of victims.

Honourable senators, I would like to see a legislative initiative in the chamber that is a genuine and well-thought-out effort to combat human trafficking, not just the criminal law as a blunt tool. Bill C-452 is not that.

Senators, when I spoke at second reading on this bill, I set out all the different experiences around the world that I have had on human trafficking and how I have been part of rescuing girls who have been trafficked, not just in Canada but around the world. This is an issue that is very close to my heart.

When I first studied Bill C-452 on my own, I thought this bill will help victims. But after having heard from the witnesses at the Standing Senate Committee on Legal and Constitutional Affairs, I am very discouraged, because I believe that we have once again raised expectations for the victims that we will be there to help them and that there will be something for them not to be exploited. Once again, we will raise expectations. They will come to court and open up and share their pain with the judges. Then, because of the law that we have drafted, the perpetrators will go free. Once again, we will have let the victims down.

On second reading, I spoke passionately about the great need to protect the most vulnerable trafficked people. Today, as a parliamentarian, I feel that I am once again failing those victims.

Thank you very much.

Some Hon. Senators: Hear, hear.

The Hon. the Acting Speaker: Debate has concluded. Are honourable senators ready for the question?

Hon. Senators: Question.

The Hon. the Acting Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

An Hon. Senator: On division.

The Hon. the Acting Speaker: On division.

(Motion agreed to and bill read third time and passed, on division.)

 

One Response to May 12 2015 3rd reading of bill C-452 exploitation and trafficking in persons

  1. […] You can read the draft of the bill here and see what I have said in the Senate on the issue at 2nd reading and 3rd Reading. […]

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