An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons) - Questions and Answers
What does the proposed legislation propose to do?
The proposed legislation seeks to bring into force all of the provisions in former Private Member’s Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons), except the mandatory consecutive-sentencing provision which raises significant concerns under the Charter of Rights and Freedoms. It would do so by amending Bill C-452’s coming-into-force provision, so that only those parts of the Bill that do not raise significant Charter concerns (sections 1, 2 and 4) may be brought into force on the day the proposed legislation receives Royal Assent.
Former Bill C-452 received Royal Assent on June 18, 2015 but has yet to be proclaimed into force. The proposed legislation’s approach would strengthen Canada’s criminal law response to trafficking in persons in a manner that is consistent with the Charter.
What are the Charter concerns related to former Bill C-452?
Bill C-452’s mandatory consecutive-sentencing provision (section 3) requires the imposition of consecutive sentences in a situation where an offender is sentenced at the same time for trafficking-in-persons offences and any other offence arising out of the same event(s). This provision, when combined with the mandatory minimum penalties for human trafficking offences enacted by former Bill C-36 (the Protection of Communities and Exploited Persons Act), could lead to grossly disproportionate cumulative sentences. This could amount to cruel and unusual punishment under section 12 of the Charter.
What would happen to Bill C-452’s mandatory consecutive-sentencing provision (section 3 of Bill C-452)?
When Bill C-452 and Bill C-36 were both before Parliament, they progressed on separate tracks; Parliament did not consider the cumulative impact of the two bills. Once they were considered together, this Charter concern became clear.
The mandatory consecutive sentencing provision (section 3) would be considered as part of the broader criminal justice system review, undertaken by the Minister of Justice and Attorney General of Canada. That review also includes examining other mandatory sentencing provisions, such as those enacted by Bill C-36 (the Protection of Communities and Exploited Persons Act).
What did former Bill C-452 propose to do?
Bill C-452 amended the Criminal Code to strengthen its measures against human trafficking. Specifically, it:
- enacted an evidentiary presumption to facilitate proving human trafficking offences (section 1);
- required the imposition of consecutive sentences where an offender is sentenced at the same time for a trafficking-in-persons offence (sections 279.01-279.03) and any other offence arising out of the same event(s) (section 3);
- modified the provision that imposes a reverse onus for forfeiture of proceeds of crime for certain criminal organizations and drug offences to also apply to human trafficking offences (section 4); and,
- made a technical amendment to the French version of section 279.04 (definition of exploitation) to address a discrepancy between the English and French versions (section 2).
How would the new evidentiary presumption work (section 1 of Bill C-452)?
The new evidentiary presumption would make it easier to prove human trafficking offences (sections 279.01 and 279.011 of the Criminal Code). It would allow Crown prosecutors to put evidence before the Court that the accused lived with or was regularly in the company of the victim to prove the element of the trafficking offence which requires the accused to have exercised control, direction or influence over the movements of that person. This amendment to the Criminal Code addresses the difficulties that can arise in human trafficking cases where vulnerable complainants fear reprisal from their exploiters and are reluctant to come forward.
What does the amendment to the reverse onus for forfeiture of proceeds of crime provision propose to do (section 4 of Bill C-452)?
The Criminal Code provides for forfeiture of proceeds of crime as part of sentencing. Normally, the Crown must prove that the property in question meets the definition of “proceeds of crime,” however, a reverse onus applies for certain criminal organization and drug offences. This means that the onus is on the offender to prove that their property is not proceeds of crime. The amendment proposed in section 4 of Bill C-452 would add the trafficking-in-persons offences to the reverse onus scheme to make it easier to seize proceeds of crime related to human trafficking.
Why is a technical amendment to the French version of the definition of exploitation needed (section 2 of Bill C-452)?
Private Member’s Bill C-310, An Act to amend the Criminal Code (trafficking in persons), sponsored by former Conservative MP Joy Smith (Kildonan-St. Paul), which came into force in June 2012, amended the Criminal Code human trafficking provisions and inadvertently created a discrepancy between the French and English versions of the provision that defines “exploitation” for the purposes of the human trafficking offences (section 279.04). Bill C-452’s technical amendment to the French version of section 279.04 would address this discrepancy.
By not bringing all of Bill C-452 into force, isn’t the Government flouting the will of the previous Parliament?
The previous Parliament passed Bill C-452. However, that Parliament never considered, as part of its consideration of Bill C-452, the cumulative impact of Bill C-452’s reforms and those of Bill C-36 (the Protection of Communities and Exploited Persons Act). Bill C-452 received Royal Assent on June 18, 2015 but was not proclaimed into force. Its coming-into-force provision provided that the entire Bill would come into force by order of the Governor in Council. The order was not issued before the federal election was called in August 2015.
Under our Government, all options were carefully reviewed to bring the proposed reforms into force in a timely and responsible manner. The proposed legislation is the outcome of this careful review. It would strengthen Canada’s criminal law response to human trafficking and exploitation in a manner that is consistent with the Charter. The mandatory consecutive-sentencing provision will be considered more fully as part of the broader criminal justice system review.
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