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George Baker

The Hon. George  Baker, P.C. Senator George Baker is the former MP for the riding of Gander - Grand Falls (Newfoundland and Labrador). He was first elected to the House of Commons in 1974, and was re-elected at every subsequent federal election. Since March 26, 2002, he has served in the Senate of Canada, representing the province of Newfoundland and Labrador.

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Second 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 03 November 2009 by Senator Lillian Eva Dyck

Hon. Lillian Eva Dyck:

Honourable senators, I rise today as the critic for Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years), which was introduced as a private member's bill by the member of Parliament for Kildonan—St. Paul, Joy Smith, on January 29, 2009.

I would like to commend Mrs. Smith for her work in trying to combat the trafficking of women and children and for her work in making this bill a reality.

The bill amends existing provisions of the Criminal Code and introduces new mandatory minimum sentencing guidelines for the trafficking of persons under the age of 18 years, but it does not address sex trafficking specifically.

I will briefly review the current legislation.

Pursuant to the Criminal Code of Canada and the Immigration and Refugee Protection Act, human trafficking became a Criminal Code offence in November 2005. The provisions dealing with human trafficking are set out in sections 279.01 to 279.04 of the Criminal Code.

Section 279.01 deals with trafficking in persons and prohibits anyone from recruiting, transporting, transferring, receiving, holding, concealing or harbouring a person, or exercising control or influence over the movements of a person for the purpose of exploiting or facilitating the exploitation of that person, and provides for a maximum penalty of 14 years to life where it involves kidnapping, aggravated assault, aggravated sexual assault or the death of the victim.

Section 279.02 deals with material benefit and prohibits anyone from receiving a financial or other material benefit for the purpose of committing or facilitating the exploitation of that person, with a maximum penalty of 10 years.

Sections 279.03 and 279.04 deal with withholding or destroying documents and with exploitation. I will not go through them today because there is no change in Bill C-268.

Under the current Criminal Code, there exists no distinction on sentencing requirements for offences committed against victims based on age.

With regard to the Immigration and Refugee Act, which came into effect in 2002, section 118 states the following:

(1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.

(2) For the purpose of subsection (1), "organize", with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.

The maximum penalty for this offence is life imprisonment, a fine of $1 million, or both. The first-ever charges under section 118 were laid in April 2005, but are currently being challenged for vagueness.

With regard to the description and analysis of Bill C-268, this bill contains eight clauses, the majority of them dealing with amending subsections in order for the substantive changes to be cohesive with the Criminal Code.

The substantive changes of Bill C-268 include the following: Clause 1 amends the definition of "offence" in section 183 of the Criminal Code to include, under section 279.01(1), the trafficking of a person under the age of 18 years.

Clause 2 concerns the trafficking of persons under the age of 18 years and establishes that offences of human trafficking whereby a person recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of 18 years, for the purpose of exploitation or facilitating exploitation, is liable to the following sentencing guidelines: Section 279.01(1)(a) outlines that human trafficking of a minor with the intent of exploitation, or facilitation of exploitation that is committed through kidnapping, aggravated assault or aggravated sexual assault or causes death to, is liable to a minimum punishment of six years or to a maximum punishment of life imprisonment.

Section 279.01(1)(b) outlines that all other offences of human trafficking involving persons under 18 years of age are punishable by a minimum of five years, to a maximum of 14 years' imprisonment.

Neither clause 3 nor clause 4 has any changes with respect to the Criminal Code.

It is worth noting, however, that the bill as originally presented in the other place did not contain a clause specifying a mandatory minimum penalty when the trafficker subjected the child to harsher treatment. The bill was amended in the other place to include the minimum six-year sentence when the victim is so treated.

Honourable senators, in July 2009 the Assembly of Manitoba Chiefs hosted a public forum to raise awareness about human trafficking and the sexual exploitation of First Nations women and children in Winnipeg, Manitoba.

Grand Chief Ron Evans said:

Both U.S. and Canadian government reports have shown and demonstrated that Aboriginal and First Nation women and children are at greater risk of becoming victims of human trafficking than any other group in Canada. We make a huge mistake when we turn women and children into objects for personal gratification. They are human beings and if we fail in our duty to treat them that way, it's like we are ripping strips off our own humanity.

Now I would like to go through the lessons I learned as I attended that conference, starting with the magnitude of the problem of human trafficking.

The RCMP estimates that 800 to 1,200 people are trafficked in and through Canada every year, however, many advocacy groups set the number at 15,000. Many women and children are trafficked from Asia, Eastern Europe and Latin America for sexual exploitation. This situation involves persons, primarily women and children, subjected to exploitation through force and/ or coercion into prostitution or forced labour. It is important to note that most women and minors are trafficked for the sex trade.

With regard to Bill C-268, there were reasons put forward why we need the current legislation. In other words, what is wrong with the current Criminal Code and what is weak about the current legislation?

The arguments given to support the enactment of Bill C-268 are based mainly on two precedents under the Criminal Code. In both cases, paltry penalties were applied to two men who trafficked underage girls in the sex trade. In 2008, a Niagara man was convicted of human trafficking and received only three years for the offence. That man made over $350,000 from the sexual exploitation of a 15-year-old girl.

More recently, a Montreal man was convicted of human trafficking. He was sentenced to two years' imprisonment for trafficking a 17-year-old girl and selling her for sex.

There have been about 30 human trafficking convictions since 2005 — a very small number compared to the estimated number of trafficked persons. It is important to note that virtually no discussion of the other convictions with respect to this bill has occurred so far, and I would like to see that happen during the study of the bill.

At the conference in Winnipeg, I was shocked to hear that Canada is a preferred country for trafficking people, because of our weak laws. I was appalled to hear that those who know what is happening on the streets feel helpless to stop this activity. They are helpless on those streets where men troll for sex, and where the same johns pick up the same young underage girls over and over.

Now I will talk about the process of human trafficking, because it is important for us to understand what this is all about. According to the information provided, mainly by the RCMP, we see that traffickers are very skilled in their activities. They know where to look for their victims and they know how to get them under their control. They target bus stops and malls. They target runaways, schools, group homes and shelters where abused women and our youth are housed temporarily. They know where to go.

According to the RCMP, there are three basic elements in the process of human trafficking: recruitment, transport and exploitation.

With regard to recruitment, traffickers know how to entice and lure the victim, who is usually vulnerable or gullible, and they lure that victim by various means. They offer them hope, perhaps a job, love or a new life. In some cases, the trafficker pretends that he is in love with the victim. They give them gifts. This is organized recruitment, as I said before. They target schools, malls, safe houses, bus stations, airports, playgrounds, bars and nightclubs, the Internet, and so on.

With regard to transport, traffickers isolate the victim from their family and friends to make them more vulnerable to manipulation, so that when they are alone, who will they believe? They will believe their trafficker. The traffickers exploit their victims. They know how to manipulate them and how to apply coercion and threats. Initially the trafficker is nice to the person, but as time goes on the trafficker manipulates them. For example, they showed a video where one trafficker pretended he was in love with his victim and he manipulated her so that she agreed to work as a stripper, and gradually she agreed to do more and more things until she became totally under his control.

In addition, traffickers threaten to rape, beat, murder or traffic the victim's family members, and they may threaten to expose the victim's line of work to family or community, in which case the victim feels ashamed and therefore trapped because the victim does not know where to go for help.

We were told about the factors that contribute to being trafficked. In general, the RCMP told us there were factors such as poverty, gender, with women being more susceptible, the presence of domestic violence, the lack of social safety networks, and ill-informed families. For Aboriginal women specifically, again, we were told there is poverty was a factor. Also, among victims, there is a high rate of homeless, single mothers, a high rate of domestic violence, and the presence of addictions.

Honourable senators will notice that poverty was first on both lists. According to the United Nations Chronicle, "Poverty will always remain one of the root causes for women and children to be lured into prostitution and/or sex work." In addition, the United States Agency for International Development emphasized:

Trafficking is inextricably linked to poverty. Wherever privation and economic hardship prevail, there will be those destitute and desperate enough to enter into the fraudulent employment schemes that are the most common intake systems in the world of trafficking.

Honourable senators, the greater degree of poverty amongst Aboriginals makes them more vulnerable to exploitation by those engaged in human trafficking. According to the Report Card on Child Poverty in Saskatchewan, 50 per cent of Aboriginal children, compared to 19 per cent of all other children in Saskatchewan, lived in poverty in 2001. In Canada as a whole, one in four First Nations children, compared to one in six other children, live in poverty.

The effects of poverty on one's vulnerability to being exploited are exemplified by this quotation from an Aboriginal sex trafficking victim. She said:

I wish I didn't have to do this sex trade. I do it to get food for my son. It's really easy for people to pre-judge and say that people have a choice to do this, but if you don't have a home to go to or you don't have any kinds of structures in your life, it's not as easy as it seems.

In addition, honourable senators, the Aboriginal Women's Network has reported that prostituted girls and women in downtown Vancouver have experienced violence, abuse, homelessness and exploitation at disproportionate rates. Eighty per cent had a history of childhood sexual violence. Seventy-two per cent had a history of childhood physical violence. Eighty-six per cent were or had been homeless. Eighty per cent had been physically assaulted by johns. Seventy per cent had been threatened with a weapon. Seventy per cent had been raped more than five times, and this includes by johns.

It is not a pretty picture; not what they had hoped for; not the dream world that they were promised by their pimp or trafficker.

Honourable senators, there are basically three types of human trafficking: People are trafficked to work in the sex trade or other forms of servitude such as domestic labourers, agricultural workers, hotel or restaurant workers, or other forms of servitude. Sex trafficking, or the trafficking of persons specifically for the purpose of sexual exploitation, is the most common type of trafficking. In fact, the U.S. Department of State estimates that 80 per cent of all victims of international human trafficking are forced into the commercial sex industry.

In terms of child trafficking, in most circumstances, children under the age of 18 are channelled into the sex trade industry. Because of this fact, child trafficking is considered one of the worst manifestations of human trafficking.

Then we have the general category of labour trafficking, which is an act where someone engages in any conduct that may or could cause the victim to believe that their safety or the safety of someone known to them will be threatened if they refused to provide labour or any kind of work. Apparently, the definition in Canada is broad enough that it also includes the sex trade.

Honourable senators, human trafficking is a hugely profitable business. In the example that I gave above, the man who trafficked a girl earned $350,000 from her work in the sex trade. It is believed that trafficking in humans is replacing trafficking in guns and drugs. That is how profitable human trafficking is. It is a huge problem. I cannot believe that in a country such as ours something like this goes on.

Many people and agencies support Bill C-268. Many recommendations by international and bilateral commissions, such as the United Nations Convention on the Rights of the Child and its optional protocol on the sale of children, child prostitution and child pornography, have urged Canada to adopt a form of mandatory minimum sentencing for human traffickers of minors, to which this bill is responding.

For the most part, response to Bill C-268 has been positive. Member of Parliament Joy Smith, after tabling the bill in early 2009, presented the House of Commons with a petition of more than 14,000 Canadians demanding that the penalties to child traffickers fully reflect the gravity of the crime.

As of about a week ago, I received nearly 100 emails asking that the Senate pass Bill C-268 quickly, without amendment. Several of these messages indicated that the bill could have incorporated harsher penalties, but the perceived need to enact a bill before the Vancouver Olympic Games was seen as sufficient reason not to pursue this avenue. I agree that we should pass this bill as quickly as possible, but we should not do so without ensuring that the bill is sound and strong.

I will talk about the importance of Bill C-268 for Aboriginal families.

In the June 2009 Trafficking in Persons Report released by Secretary of State Hillary Clinton, Canada was identified as a "source, transit, and destination country for men, women and children trafficked for the purposes of commercial sexual exploitation and forced labour": the two types. In addition, the report commented that "Canadian women and girls, many of whom are Aboriginal, are trafficked internally for commercial sexual exploitation."

One study in particular, conducted by the Native Women's Association of Canada Sisters in Spirit program found that in Winnipeg, 90 per cent of the children being exploited in the sex trade were Aboriginal, even though Aboriginals represent only about 10 per cent of the population. Other studies have made it clear that Aboriginal children are overrepresented in exploitation.

According to the Stop Sex with Kids campaign based in Winnipeg, many First Nation children are being sexually exploited on the streets of Winnipeg. Each year, an estimated 400 children and youth are exploited on the streets. Seventy to eighty per cent of these children are Aboriginal, and 85 to 90 per cent are young girls, a terrible problem and a horrible statistic.

In Saskatoon, it is estimated that approximately 300 people turn to sex work at least once a year to make money to survive. According to the EGADZ Downtown Youth Centre, 36 Aboriginal girls under the age of 18 have been confirmed as involved in sex work. These numbers are most likely an underestimate.

According to a recent research paper by Anupriya Sethi, many Aboriginal girls are involved in exploitation, following a trafficking process that involves the movement of the girls through many major cities such as Saskatoon, Edmonton, Calgary, Regina, Winnipeg and Vancouver. The author makes it clear that though poverty is a factor that makes Aboriginal girls more susceptible to being trafficked, other factors, such as the horrific legacy of residential school abuse and the lingering effects of colonization, contribute to their vulnerability to exploitation.

I would now like to discuss the bill itself. Can the bill be further improved? Is the bill tough enough? Are the penalties tough enough?

Bill C-268, as it stands, has three serious shortcomings. These became evident to me when I reviewed the legislation enacted in the U.S. in 2008. First, in the United States, the Trafficking Victims Protection Act defines two categories of minors: those under 14 years of age, and those 14 and up to but under 18 years of age. This recognizes the greater vulnerability of younger minors and it acknowledges the fact that the average age at which girls are introduced into the sex trade is 12 or 13 years of age.

Second, the penalties in the U.S. are harsher than what are being proposed in Bill C-268. An offence of sex trafficking involving a person older than 14 years of age but under the age of 18 incurs a fine and a minimum sentence of 10 years imprisonment and a maximum sentence of life imprisonment in the U.S. An offence of sex trafficking involving a child under the age of 14 incurs a fine and a minimum sentence of 15 years imprisonment and a maximum sentence of life imprisonment. These are stiffer sentences in the U.S.

It is also important to take note that the American law also imposes a fine. This, too, is important to keep in mind and consider at some point in time as we continue to refine our laws on human trafficking. It is clear that human traffickers make huge amounts of money. I doubt that spending five years in prison will deter them if they are allowed to keep the hundreds of thousands or, perhaps, even millions of dollars that they have made by exploiting women, children and men.

Honourable senators, I wish that I could make a PowerPoint presentation in the chamber here with a chart that would show the differences between the U.S. law and the Canadian law — that is, the U.S. law with its two different age categories and higher minimum mandatory sentences combined also with a fine.

The third flaw in Bill C-268 is the most serious. It really undermines the bill. The main weakness of this bill is that it does not name the real problem that it is intended to address; that is, sex trafficking of children. The bill does not actually focus on stopping the sex trafficking of children. It does not contain the phrases "child sex trafficking", "child sex trade" or "commercial sex trade" or any other phrase that would indicate it is meant to stop the trafficking of children for the purpose of exploitation in the commercial sex trade. Yet, the main argument to support the minimum penalties are based on section 212(2.1) of the Criminal Code which imposes a five-year mandatory minimum sentence for the aggravated offence of living off the avails of prostitution of a person under the age of 18 — quite clearly a sex-related offence.

Furthermore, in drafting Bill C-268, Professor Perrin argues that it is important to provide Crown prosecutors with charging options that best suit the facts of child sexual exploitation involving a pimp or trafficker. Yes, honourable senators, "child sexual exploitation involving a trafficker"; and "sexual exploitation", not other forms of labour exploitation.

I urge the committee members who review Bill C-268 to examine and carefully analyze Professor Perrin's statements and their reference to section 212(2.1).

Honourable senators, we are being urged to pass Bill C-268 without amendment and to do so quickly. However, I fear that the bill in its present form will not do justice to children because it does not address sex trafficking directly. Of course, we know that most children are trafficked for victimization in the commercial sex trade, but Bill C-268 does not differentiate children trafficked for exploitation in the sex trade from those trafficked for forced labour. Those two forms of trafficking are vastly different in terms of their horrendous impact on the victim and the huge profit to the trafficker. Every person would agree that a child trafficked to work in the commercial sex trade is in a far worse situation than a child forced to work as a labourer in a hotel, restaurant, agricultural or other type of servitude.

Honourable senators, I am haunted by the memory of seeing Aboriginal girls who were only about nine or ten years old on the streets of Regina, where men drive by to pick them up for sexual services — I repeat: nine and ten years old. Surely, there is a world of difference between a nine-year-old Aboriginal girl trafficked in the sex trade, compared to a nine-year-old boy trafficked to work, for example, in the restaurant business to wash dishes or clean bathrooms.

I hope this extreme comparison indicates the serious nature of the omission of the explicit nature of the type of trafficking that the bill is intended to address, namely, trafficking for the purpose of work in the sex trade and not in just any other form of servitude. While I do not want to minimize the harsh treatment that the boy in my hypothetical scenario would face, he would not have been sexually violated repeatedly as girls in the sex trade are.

Honourable senators, the American child trafficking legislation that I outlined a few minutes ago specifically targets sex trafficking. In the name of the bill, it actually says "child sex trafficking." Somehow, this key element was missed during the drafting of Bill C-268. Certainly, it seems to be the intention of the bill to address child sex trafficking, gauging from the speeches by the member who initiated the bill, the petitioners and the general public who have contacted us. Mrs. Smith states that the victims of trafficking suffer horrific mental, physical and sexual abuse during their captivity. She further said that in Canada today, child sex slavery is alive and well and that these girls and women are destined for the sex trade. Furthermore, as noted previously, the examples used to convince us of the need for Bill C-268 are cases involving female minors used in the commercial sex trade.

The people who have contacted us, mainly through email, have taken the advice of the Canada Family Action Coalition. They virtually all ask us that the Canadian government, including the Senate, needs to be tough on crime and particularly crimes against women and children. They say things like "women and girls are trafficked." Others note that Bill C-268 would put Canada on par with Thailand's standard, a country internationally known for its sex tourism industry. All of these messages indicate that they are concerned about the sex trade, because we know that women and children are destined for the sex trade.

Perhaps it was missed during the drafting of the bill because all the evidence indicates that sex trafficking is the major type of human trafficking. One just assumes it is in the actual wording of the bill, and therefore reads it into the bill. Certainly that is what I did. After reading the information on human trafficking, I assumed the bill was targeting child sex trafficking specifically, but it is not.

Honourable senators, I feel as though I am on the horns of a dilemma. On the one hand, I believe the bill should be passed, but, on the other hand, I believe it is fundamentally flawed and soft on the crime of child trafficking because it does not contain wording that addresses child sex trafficking specifically.

How can we not name the offence of sex trafficking of children, persons under the age of 18? Until we specifically name and identify the problem of child sex trafficking, we will not be able to end it. We have to name it. We owe it to the victims who have been trafficked for the sex trade to name what has happened to them as sex trafficking of minors, not just as trafficking of minors. It is a big distinction.

If we do not amend the bill so that it addresses child sex trafficking specifically, we would be sentencing traffickers of children for work in non-sex forms of labour — such as in the domestic, hotel and restaurant services — to a five-year minimum sentence, and traffickers of children for work in the sex trade to the same mandatory five-year minimum sentence.

Is that fair? Is that the right thing to do? Surely the punishment for trafficking of children for the sex trade ought to have higher penalties than trafficking for other types of labour. In the U.S., as near as I can tell, there are no mandatory minimum sentences for trafficking for the purposes of forced labour.

Honourable senators, I hope that you agree with me and that the committee reviewing Bill C-268 will make amendments that, first, incorporate the specific notion of trafficking minors for the explicit purpose of exploiting them in the commercial sex trade; second, incorporate the two different age categories, as has been done in the U.S.; and, third, incorporate a fine, as has been done in the U.S.

The first proposed amendment is essential to make the bill do what most everyone seems to think it will; that is, enact harsher penalties for the sex trafficking of minors.

The second proposed amendment acknowledges the different vulnerabilities of minors under the age of 14 and the more heinous nature of the offence to them and the fact that we have children 9 to 13 years old on the streets of our cities.

The third possible amendment is meant to prevent convicted traffickers from keeping the substantial monies that they made at the expense of their victims. The One is Too Many: A Citizens' Summit on Human Trafficking at the 2010 Olympics and Beyond organization noted that "as long as trafficking remains a profitable industry, the number of victims will only increase."

Honourable senators, if we fail to rise to the challenge, and if we do not make Bill C-268 tougher, we will be failing the children of Canada and the children of other countries who will continue to be trafficked here because of a weak-spirited law. According to Secretary of State Hillary Clinton's Trafficking in Persons report from June 2009 — I said this previously and I will say it again — "Canada is a destination country for sex tourists, particularly from the United States." If we do not have a child sex trafficking law that is as tough as the American law, traffickers will continue to operate in Canada and sexually exploit our girls and boys. We need a law as tough as theirs.

Honourable senators, here is the challenge for us as individuals and as members of the committee who will review the bill: Are we willing to be bold? Are we willing to insist that the bill be amended so that child sex trafficking is specifically named and that the penalties are actually aimed at the specific offence of child sex trafficking? That is what Canadians are asking us to do in the many letters and emails that they have sent to us.

This amendment is critically important. All of us in this chamber and in the other place have a responsibility to all Canadian children to work together and, as quickly as possible, to get an amended bill that sets minimum mandatory penalties for trafficking children for the specific purpose of exploiting them in the commercial sex trade.

For the sake of the thousands of children who have suffered the horrors of exploitation in the sex trade, we — each and every one of us, each senator, regardless of political affiliation — must be bold. I ask honourable senators to stand up for all Canadian children and demand that the crime of child sex trafficking be specifically addressed in this bill.

Honourable senators, we must do our duty. We must be bold. We must listen to the public who are outraged about child sex trafficking. We must use our minds in determining the soundness of the bill, and our hearts in trying to help the victims and in listening to those who have petitioned on the victims' behalf. It is equally important that we search deep within our souls to ensure that we make the morally and spiritually right decision. Bill C-268 is a step in the right direction, but as is, it is not bold. It is not strong. It is weak. At the very least, we must amend the bill so that it names trafficking of minors for the sex trade specifically and separately from forced labour of any other kind.

Honourable senators, let me conclude by saying much work has gone into the drafting of this bill. I commend Mrs. Joy Smith and Professor Benjamin Perrin for their tremendous work. They have worked very hard at creating all the details that go into the drafting of the bill. Like a mouse who knows every tiny detail around his or her world, they know the details of the bill and the horrific details of the world of child trafficking. On the medicine wheel of life, the mouse is as important as the hawk. The hawk flies above the mouse and sees the big picture. For the sake of the children who are trafficked, we must also be like the hawk and see the big picture. We must see that we are trying to stop the trafficking of children for the sex trade specifically. Thank you.

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