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 honourable member of Parliament for Kildonan—St. Paul, Joy Smith.

I spoke to this bill on November 3, 2009, as critic at second reading stage, but Prime Minister Harper prorogued Parliament and the bill was reintroduced into the Senate at first reading on March 9, 2010. Once again, I would like to commend Ms. Smith for her work in trying to combat the trafficking of women and children.

Today, I will reiterate some comments I made previously and include new information that clearly shows that Bill C-268 is not up to the same standard as child trafficking legislation in other countries.

Honourable senators, my approach as critic of the bill was to analyze the bill using the following 10 questions. The first question I asked was what is the purpose or goal of the bill? The second question was will it achieve its goal. The third question was what are the causes of human trafficking, particularly of women and children? My fourth question was what human trafficking laws do we have in place? My fifth question was how well do our current laws on human trafficking work? The sixth question I asked was are there other offences that can be used to charge human traffickers. My seventh question asked what laws do other countries use to charge human traffickers. My eighth question asked how Bill C-268 compares to other human trafficking laws in other countries. My ninth question asked if the penalties prescribed in Bill C-268 are tough enough. My final question was should Bill C-268 be passed as is or should it be strengthened?

Honourable senators, the goal of this bill is to amend existing provisions of the Criminal Code and to introduce new mandatory minimum sentencing guidelines for the trafficking of persons under the age of 18 years. Our honourable colleague Senator Martin, sponsor of the bill articulated its aim as providing:

. . . our law enforcement officials and judiciary with an essential tool for combatting this heinous crime and punishing those who prey upon the most vulnerable of our society: homeless and abused youth, children in protective care, and Aboriginal youth.

Honourable senators, I am sure that no one here disagrees with Senator Martin or member of Parliament Joy Smith about the intentions of the bill. In fact, many people and agencies support Bill C-268. International and bilateral commissions such as the United Nations Convention on the Rights of the Child and its Optional Protocol to the Convention 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.

While I agree that we do need such a bill, and while I believe that the intentions of the bill are laudable, Bill C-268 will not have any real impact on preventing child trafficking unless it is amended to incorporate tougher penalties and defines the criminal offence specifically as trafficking of minors for commercial sexual exploitation.

Honourable senators, there are basically two 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 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.

Honourable senators, on November 3, 2009, as critic of this bill, I spoke at length about the ways traffickers recruit, transport and exploit their victims, and I will not repeat that information today. I will, however, repeat what I said about Aboriginal youth.

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 if 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; 72 per cent had a history of childhood physical violence; 86 per cent were or had been homeless; 80 per cent had been physically assaulted by johns; 70 per cent had been threatened with a weapon; and 70 per cent had been raped more than five times, and this includes by johns. This is not a pretty picture, not what they had hoped for, not the dream world they were promised by their pimp or trafficker.

Honourable senators, today I will not repeat the information that I gave on November 3 about the sections of the Criminal Code of Canada and the Immigration and Refugee Protection Act that deal with human trafficking. I will, however, repeat the information 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.

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 a person 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. Proposed 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 is liable to a minimum punishment of six years or to a maximum punishment of life imprisonment.

Proposed 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 fourteen years imprisonment.

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

Honourable senators, the information on Ms. Smith's website implies that traffickers will set up shop in Canada because we have no minimum sentence for the offence of trafficking a minor. Her website states that the U.S.A., India and Thailand have minimum sentences of ten, seven and five years for this offence. I think we all agree that Bill C-268 ought to be passed but, unless we strengthen it by setting a minimum sentence of ten years to match the American legislation, how can we expect to stop American traffickers who are next door to us from setting up shop here in Canada?

Honourable senators, let us see how Bill C-268 stacks up compared to legislation in other countries. You may recall that in my previous speech I stated that the American child trafficking laws were specific for child sex trafficking. They had higher penalties and harsher provisions for minors under the age of 14. I have since discovered that the same situation is true for India and Thailand, the other two countries listed on Ms. Smith's website.

The vast majority of children are trafficked for commercial sexual exploitation. Everyone agrees that trafficking of minors for commercial sexual exploitation is heinous. It is a despicable act that should be punished severely. 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 most circumstances, children under the age of 18 are channelled into the sex trade industry and, because of this, child trafficking is considered one of the worst manifestations of human trafficking.

Clearly, the governments of the U.S.A., India and Thailand understand these important facts as they have enacted legislation specifically for the offence of trafficking of minors for the purpose of sexual exploitation. While all three countries impose minimum mandatory sentences for the offence of sex trafficking of minors, none of these countries has a minimum mandatory sentence for trafficking for the purposes of forced labour.

By contrast, Bill C-268 sets up a minimum mandatory sentence of five years for all forms of trafficking of minors; that is to say, a five-year minimum sentence is the penalty for sexual exploitation and for forced labour. It does not differentiate between the two forms of trafficking.

Honourable senators, clearly Bill C-268 ought to follow the same principle of enacting legislation that specifically addresses trafficking of minors for sexual exploitation as the U.S.A., India and Thailand have followed. These countries have clearly enunciated that this is the crime that must be stopped.

This lack of differentiation between trafficking for sexual exploitation versus forced labour in Bill C-268 is its most serious weakness. It undermines the bill. The bill does not name the problem — the trafficking of children for commercial sexual exploitation — and that is the problem. Yet, the three main arguments to support the five-year minimum sentence are all based on sexual exploitation.

The first argument used to convince us of the need for the five-year minimum sentence is that prior sentences handed out to child traffickers were too lenient. The cases presented deal with trafficking of minors for the purposes of sexual exploitation. In both case, 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. The 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 and was sentenced to two years imprisonment for trafficking a 17-year-old girl and selling her for sex. Both of these cases involved commercial sexual exploitation.

The second argument used to justify the five-year minimum sentence in Bill C-268 is based on section 212(2.1) of the Criminal Code, which imposes a five-year minimum mandatory sentence for the aggravated offence of living off the avails of prostitution of a person under the age of 18. Prostitution is clearly a commercial sexual exploitation.

The third argument used by Professor Perrin, who worked closely with Ms. Smith, to support a five-year minimum sentence was 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. He specifically stated "child sexual exploitation involving a pimp or trafficker." Trafficking for forced labour was not even mentioned.

Honourable senators, virtually every email message and letter that we received about Bill C-268 mentions the trafficking of women and children for sexual exploitation. None, however, mention trafficking for forced labour. Trafficking for forced labour is not mentioned on the main page of Joy Smith's website, and she spoke almost exclusively about the trafficking of women and children, using examples of sex trafficking. There was very little mention of trafficking for forced labour in her speeches and letters.

Honourable senators, we are being urged to pass Bill C-268 without amendment and to do so quickly. We all want to put an end to this heinous practice as quickly as possible, but we must balance this need for speed with the need for time to provide advice and assistance. That is our prime duty. Each of us must take the time to wrestle in our minds, hearts and souls with the issue of trafficking of minors.

Though the horrific stories of child trafficking victims evoke deep emotional responses, we cannot let emotion outweigh reason. I fear that the bill in its present form will not do justice to children because it does not address sex trafficking directly. Most children are trafficked for victimization and commercial sex trade, but Bill C-268 does not differentiate between children trafficked for exploitation in the sex trade and those trafficked for forced labour. These two forms of trafficking are not equivalent; they are significantly different. 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 industry or other type of servitude.

Honourable senators, I am haunted by the memory of seeing Aboriginal girls, who were only 9 or 10 years old, on the streets of Regina, where men drive by to pick them up for sexual services. Surely, there is a world of difference between a nine-year-old Aboriginal girl trafficked in a sex trade and a nine-year-old boy trafficked to work in the restaurant business washing dishes and cleaning bathrooms. I hope this extreme hypothetical example illustrates the difference between the two types of trafficking. While I do not want to minimize the harsh treatment that the boy in my hypothetical scenario faces, he would not be sexually violated repeatedly like girls in the sex trade are.

Honourable senators, the key question is: Is trafficking for the purpose of forced labour as heinous and repugnant to Canadian standards of decency as is trafficking for the purposes of sexual exploitation? I think everyone considers the trafficking of people for the purpose of sexual exploitation, especially of minors, as heinous, but I do not think the same is true of trafficking for the purposes of forced labour. While some who are trafficked for forced labour might be severely mistreated and suffer tremendously, some might not suffer to nearly the same extent as those trafficked for the purposes of sexual exploitation.

Honourable senators, there is also legal justification for amending Bill C-268 to make it specific to the sex trafficking of children. If it is not so amended, it may be subject to a court challenge on the grounds that a five-year minimum sentence is cruel and unusual punishment for trafficking a minor into forced labour, such as forced domestic work. As noted above, because of the significant variability in the types of forced labour — work in restaurants, hotels, private residences, agricultural endeavours, fishing and so on — sentencing ought to be subject to judicial discretion. In fact, as noted above in the United States, India and Thailand, there is no mandatory minimum sentence for the offence of trafficking for the purposes of forced labour. Honourable senators, the key legal point is: Unless Bill C-268 is amended to make the offence one of trafficking of minors for sexual exploitation, it may be subjected to a court challenge.

In my speech last November, I discussed the fact that the child trafficking legislation in the United States defined two age categories of minors, with the harsher penalty for the younger category. Since then, I discovered that the same holds true in India and Thailand. Clearly, the governments of the United States, India and Thailand recognize the increased vulnerability of younger minors and, consequently, they have enacted harsher penalties for the younger age category. All three countries have incorporated greater penalties for the sex trafficking of minors who are under age 14 or 15 years. In the United States, the minimum sentence is five years longer. In India, the minimum of seven years is unchanged but the maximum sentence is increased to life from 14 years. In Thailand, both the minimum and maximum sentences are increased by five years for the lower age group. These laws show that the importance of securing the victim from their trafficker is instrumental not only in providing safety for the victim but also in decreasing the ability of traffickers to go back and traffic others. Bill C-268 should reflect this importance, and it should provide longer sentences that keep the victim and the trafficker separated for longer periods of time.

Honourable senators, if we truly want to be tough on child traffickers, should we not also have tougher sentences for those who prey on our youngest and most vulnerable children? Bill C-268 ought to address the fact that minors under the age of 16 years are more severely affected by being trafficked. There are precedents for this type of age distinction in sentencing in our Criminal Code. This information was something else that I discovered while Parliament was prorogued.

Honourable senators, in section 170 of our Criminal Code, two age categories of minors are defined with separate penalties for the particular offence. The minimum sentence for a parent or guardian who procures a minor under the age of 16 for the purpose of engaging in sexual activity is six months compared to 45 days for a minor between the ages of 16 and 18. The maximum sentence for the offence against the younger age category is five years and for the older age group.

Similarly, section 171 of the Criminal Code defines two age categories of minors and assigns higher penalties for offences against the younger age group. The sentencing provisions are the same as above for section 170. For a householder who permits a minor under the age of 16 years to be on the premises for the purpose of engaging in prohibited sexual activity, the minimum sentence is six months compared to 45 days for a minor between the age of 16 and 18 years. The maximum sentence for the offence against the younger age category is five years and for the older age group, two years.

Honourable senators, Senator Martin stated: "it is our duty to protect the most vulnerable." I agree. Children, especially those under the age of 16, are more vulnerable to being trafficked. These children are trafficked for sale on our streets to Johns who pay to have sex with them. We must amend Bill C-268 to provide greater protection to those children under the age of 16, who are the most vulnerable.

I thank the organizations and people who have contacted us in support of the bill. This important bill deserves our full attention and thoughtful consideration. The issue of preventing the trafficking of minors is not a simple one. Trafficking legislation alone will not stop this horrific activity. The trafficker is only one part of the problem. The Johns — the men who create the demand for prostituted children — must also be targeted. In addition, we ought to eliminate the factors that make children susceptible or vulnerable to being lured into illicit activities by pimps and traffickers. The main factors contributing to their vulnerability are poverty, lack of education and family violence.

There seems to be the impression that if we do not pass this bill quickly, there will be no way to charge child traffickers, or that there will be no charging options that carry appropriately severe sentences. However, these fears are ungrounded. Child traffickers can be charged with a number of offences depending on the circumstances of a particular case. Testimony from the Standing Senate Committee on Human Rights indicated that the offence of human trafficking is difficult to prove. Therefore, prosecutors sometimes opt to charge offenders with prostitution offences because it is easier to substantiate, and it yields a harsher penalty than current human trafficking legislation does. Some of the charging options are: first, charges under human trafficking of a person, under which the two cases outlined previously were charged; second, charges under material benefit from trafficking; third, charges related to withholding documents; fourth, charges under sex-related offences such as procuring a person to become a prostitute; fifth, charges of procuring a person under the age of 18 to become a prostitute; and, sixth, as mentioned several times in my speech today, charges for living off the avails of a prostituted person under the age of 18, which carries a minimum five-year sentence — the same sentence proposed in the bill before us today.

Honourable senators, we must also be aware that the sentences rendered for the two infamous child traffickers mentioned over and over again in support of this bill were not only two years for the Ontario man and three years for the Quebec man. Rather, these traffickers were sentenced to a total of four and five years respectively because they were also found guilty of additional charges related to sexual exploitation. They were charged under the six options that I listed above.

Honourable senators, healthy, happy, resilient children are what all Canadian families want. However, let us not forget that sexual abuse of children happens not only on our streets; It also occurred in our residential schools and orphanages. Within these church-operated institutions, children were abused physically, emotionally, spiritually and sexually by bishops, priests, nuns, ministers, clergy and others. A cycle of abuse was initiated, with intergenerational transmission of domestic violence and sexual abuse. The presence of domestic violence and sexual abuse makes a child more vulnerable to being trafficked. I suspect that the Christian organizations that are lobbying us are trying to do the morally right thing and correct the mistakes of the past made by their church leaders and church members. I hope that they are not responding to their emotional fears, feelings of anger at their own church members or feelings of guilt and shame.

I thank all honourable senators for their attention, and I would like to say a few words to new honourable senators. First, welcome to you all. You have accepted an honourable and enormous responsibility. Ultimately, it is up to each of us to decide, through our individual vote in the chamber, whether to pass Bill C-268 as is, to reject it or to amend it.

This bill is one which we can all comprehend, and one which we can all understand is important to protecting minors, with respect to meeting international obligations and with regard to meeting Canadian ideals of protecting children from being trafficked. When the moment comes for you to vote on this bill or any other bill, it is a huge responsibility.

When you go to bed that night, will you feel confident that you voted correctly, that you did all you could to make it the best bill possible; and in the morning, when you face yourself in the mirror, will you have a clear conscience? Will you feel good about the way you voted? Each of us has to face those questions in our own way.

I ask all honourable senators on both sides of the chamber to work together to strengthen Bill C-268. Please put on your thinking hats, listen to your hearts and search your souls. Do what is right for the most vulnerable in our society, and do everything possible to strengthen Bill C-268 to be tough enough on traffickers and protect children from being trafficked for sexual exploitation.

If we strengthen Bill C-268, we will do what Senator Martin stated, which is

. . . send a clear message to those who traffic and harm our children that their crimes will not be tolerated and that Canada is not a safe haven for child traffickers.

Honourable senators, to summarize, I believe that Bill C-268 ought to be strengthened by amendments to protect Canadian children. First, the bill ought to be amended to create an offence for trafficking of children for the purposes of commercial sexual exploitation. Without such an amendment, it may be susceptible to a court challenge. Without such an amendment, it will not target the main type of forced servitude into which children are trafficked. Second, the bill ought to be amended to match the tougher sentences in the corresponding American legislation. Third, the bill ought to be amended to align with other countries and other Canadian legislation that defines two age categories of minors and sets higher sentences for the younger category.

Honourable senators, I support the intention of the bill and trust that the members of the Standing Senate Committee on Legal and Constitutional Affairs and all honourable senators on both sides of the house will consider my recommendations seriously.

Meegwitch. Merci. Thank you.

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