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James Cowan

The Hon. James  Cowan, Q.C., B.A., LL.B., LL.M., LL.D. Senator James Cowan has greatly influenced the educational and legal communities of Nova Scotia. He was appointed to the Senate on March 24, 2005 by the Rt. Hon. Paul Martin.

Statements & Hansard

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)

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Statement made on 16 June 2010 by Senator Art Eggleton

Hon. Art Eggleton:

Honourable senators, I rise today to speak on Bill C-268. At first glance, it seems easy to support this bill. It involves a horrible crime. It involves some of our most vulnerable members of society — our youth. It also comes from a sponsor that has championed this cause. I applaud Joy Smith for her dedication and work on this issue.

However, honourable senators, if you believe in evidence-based public policy, the evidence heard at the committee does not support of imposition of mandatory minimums as proposed in this bill.

Human trafficking is deplorable and reprehensible. It is an illegal trade of human beings for the purposes of commercial sexual exploitation or forced labour — a modern day form of slavery. In 2005, the government of Prime Minister Paul Martin brought in amendments to the Criminal Code to devise specific offences for human trafficking. MP Joy Smith pointed out before the Standing Senate Committee on Social Affairs, Science and Technology: "The 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."

Prosecution under this new legislation, honourable senators, has been slow. We heard from witnesses before the committee that there have been only five convictions for human trafficking in Canada since 2005. There are currently 32 cases before the courts. Whereas, in other countries with similar legislation such as the United Kingdom, there have been 110 convictions for human trafficking since their legislation was put in place in 2002.

To underscore my first concern about this bill, I want to mention the five cases that have resulted in convictions. Two of the convictions were for trafficking adults and the remaining three were for trafficking people under 18 years of age. Since Bill C-268 specifically concerns minors, I will focus on those three cases.

The first case was the Imani Nakpangi case in May 2008. This was the first conviction for human trafficking in Canada. Mr. Nakpangi pleaded guilty.

This man pleaded guilty and received a five-year sentence; he received three years for trafficking a teenager and two years for living off the avails of a teenage prostitute, to be served consecutively.

The second case was the conviction of Michael Lennox Mark in June 2008. He pleaded guilty to trafficking a 17-year-old girl and procuring three others — one under 18 — to become prostitutes. He received two years for the trafficking charge, and two years for procuring, to be served concurrently. However, after receiving credit for time served in pre-trial custody, he spent only one week in jail for the crimes.

The third conviction involving a minor was in Gatineau, Quebec. In April 2009, Laura Emerson pleaded guilty to human trafficking by exploiting two women — one a minor — and living off the avails of a prostitute. Her sentence was seven years.

Honourable senators, what can we conclude from these first three convictions? We have one conviction that seems unacceptably short, although we do not know all the facts that were before the court. On the other hand, we had another conviction with significant penal sanction and which sends a strong message concerning the seriousness of the crime. The third conviction is somewhere between the two.

I do not think we can conclude much from only three cases, except that we should not make public policy based on such a small sample, and based on examples with such divergent outcomes and for reasons that are not available to us.

This legislation is still in its infancy. As Barry MacKillop, the Director General of Law Enforcement and Border Services at Public Safety Canada, said before the committee, which was echoed by other witnesses:

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.

Unfortunately, I think this bill is based more on ideology than on fact. The judges are too lenient and the perpetrators should be punished severely.

I point out that this view was not the prevailing one of the witnesses who came before the committee. Most of the witnesses had confidence in the judicial process. The superintendent from the RCMP said, and was echoed by others: "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."

However, do mandatory minimum sentences work? The majority of witnesses before the committee said no, and they opposed the use of mandatory minimum sentences for many reasons. Of the five witnesses who expressed an opinion on whether they favour mandatory minimum sentences, three opposed mandatory minimum sentences and two were in favour, including Ms. Smith, the sponsor of the bill.

The three witnesses opposed to mandatory minimum sentences were a university researcher, a lawyer and a child rights activist. The first objection was based on their utility. Michael Spratt from the Criminal Lawyers' Association pointed out: "There appears to be little empirical data that shows they are effective . . . in specific deterrence and general deterrence." In other words, mandatory minimum sentences will not deter subsequent offenders. Perpetrators do not consider how long a sentence they might receive before committing the crime.

The second major reason against mandatory minimum sentences for human trafficking is that two negative scenarios will probably arise in many cases. If the Crown decides to charge an accused with human trafficking, the case likely will go to trial. As Mr. Spratt pointed out, if someone's culpability is at the lower end of scale, with no criminal record and that person knows that no matter what the person does before trial, that person will receive a minimum sentence of five years, that individual will take their chances at trial.

As Jamie Chaffe, from the Canadian Association of Crown Counsels pointed out:

Once we have a trial, we are into a very challenging case for the Crown, particularly in these types of offences. We are dealing with witnesses who are young and who have often suffered post-traumatic stress. . . . We have issues around interpretation and translators; we have issues around memory.

He further pointed out that going to trial can have a very harmful effect on the victims. Witnesses who are young and who have often suffered post-traumatic stress often find it very difficult to go through trials.

This could have serious consequences, honourable senators; this could result in fewer convictions and defenders might not receive the justice that they deserve. It is no surprise then that all three of the convictions to date for human trafficking of young people in Canada involve a plea bargain; they all involved a plea bargain.

Depending on the complexity of the case, the second scenario that can happen is that the prosecutor will drop the human trafficking charge in favour of a plea bargain to a lesser charge to ensure a conviction, thereby eliminating the purpose and effectiveness of the human trafficking legislation. In the plea bargaining taking place, they have not had what they need to obtain that kind of conviction. That is the one thing we are finding out.

Honourable senators, mandatory minimum sentences may also lead to another consequence that was identified before the committee. The International Bureau for Children's Rights — which is active in this area — pointed out that some perpetrators of human trafficking have been victims themselves. In a study of human trafficking in Quebec, they found that young girls involved in human trafficking, either recruiting or running the ring, participate to obtain a higher ranking within the gang to escape prostitution.

This bill will effectively criminalize the victim. Criminalizing the victim with mandatory minimum sentences, the judges will have no option to consider mitigating circumstances during sentencing. That option is important.

This highlights the last major problem I have with mandatory minimum sentences. They limit or remove discretion from judges. Proponents of mandatory minimum sentences will say that is exactly what they want to do; they do not trust the judges to make the right decision.

However, honourable senators, judges are the ones we want to make the decisions. They can interpret the laws and apply justice in a fair and just manner, and their decisions can be reviewed. If the prosecution does not like the outcome of a case, or does not like the sentence handed down to an offender, there is an appeal process. We all know that. This process ensures we have an open and transparent system; a system that has served Canada well as a nation for 143 years.

Honourable senators, I believe we are missing a crucial step that would more effectively combat human trafficking than this bill. That crucial step should be in place before we pass a piece of legislation that is based on limited facts and ideological perceptions.

We need a national strategy on human trafficking.

On February 22, 2007, Member of Parliament Joy Smith was successful in passing, with all-party support, a motion in the House of Commons that called on Parliament to condemn the trafficking of women and children across international borders for the purpose of sexual exploitation, and to immediately adopt a comprehensive strategy to combat to trafficking of persons worldwide. Honourable senators, it has been three years since that motion passed unanimously and nothing has been done about it. No strategy has been developed.

It is not as though we do not have many examples to guide us along the way. A great framework to follow was laid down in 2007 in the House of Commons in the Status of Women Committee report. By the way, Joy Smith was Vice-chair of that committee, as well. It was entitled Turning Outrage into Action to Address Trafficking for the Purpose of Sexual Exploitation in Canada.

In that report, they did not call for mandatory minimum sentences. Instead, they said that the major barrier to combating trafficking in Canada resulted from the failure to enforce the laws that Canada currently has. They found that the lack of education about human trafficking in the police forces and in the judiciary was the main culprit for this problem.

The committee, therefore, recommended that the federal government consult with national and provincial bar associations to establish a strategy to increase the legal community's awareness of victims of trafficking, and to improve and encourage continuing legal education relating to trafficking in persons.

The committee also recommended that all levels of government should increase funding to the police and the judiciary to better investigate and prosecute cases of human trafficking. That is what came from the Status of Women committee report and its Vice-chair, Joy Smith.

We could also learn from the United Kingdom, a country that has a national action plan and which was identified by witnesses as doing well in combating human trafficking. The U.K. action plan focuses on covering the broad areas of prevention — prevention is very important here as we do not want more of these incidents to happen — investigation, law enforcement, prosecution and providing protection and assistance to victims.

The plan sets out a number of action points, with timetables for implementation. They view this as a balanced approach that addresses the need of victims, prosecutes the offenders, and tries to prevent the crime in the first place.

Furthermore, honourable senators, even though they have substantially more data on convictions than we do — I mentioned the figure of 110 — and have reviewed their action plan twice since it was introduced in 2007, guess what? They do not have mandatory minimum sentences.

Honourable senators, in conclusion, human trafficking is a reprehensible crime. We need to make sure that the victims are safe, secure and in a state where they can rebuild their lives; and we need to effectively prosecute, punish, but also rehabilitate offenders. Let us not forget that.

It was said in committee that maybe we should just lock them up and not worry about them; but if we care about the victims, then we must care about preventing new ones. Offenders will be back on the street again after their prison time is up, whether there are mandatory minimums or not, and we do not want them to reoffend. Therefore, we should be interested in rehabilitation.

I believe, honourable senators, that this bill has good intentions, but it has the wrong conclusion.

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