Conservative senator proposes changing criminal definition of exploitation as it relates to human trafficking offences

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A Conservative senator is proposing changes to the Criminal Code’s definition of exploitation in human trafficking offences so that the Crown is no longer required to prove a reasonable person in the victim’s circumstances feared for their safety or the safety of someone they know.

Salma Ataullahjan introduced legislation in the Senate this week that proposes removing language in the Criminal Code that deals with fear for safety.

“How do you prove fear?” Ms. Ataullahjan said in an interview with The Globe and Mail. “It’s not a partisan bill. It’s about our children. It’s about young women being trafficked and I’m hoping it will pass quickly. I really don’t think anybody will have a problem with this.”

Currently, the Criminal Code states that for the purpose of trafficking offences, a person exploits another person if they cause someone to provide, or offer to provide, labour or a service by engaging in conduct that in all circumstances “could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.”

Legal experts have said this definition can make it challenging for the Crown to secure a human trafficking conviction.

Nicole Barrett, director of the International Justice and Human Rights Clinic at Allard Law, University of British Columbia, said in a previous interview with The Globe that the provision in the Criminal Code that deals with safety does not accurately reflect what’s going on in the crime. She said if the victim knows the trafficker – which is usually the case – they may not fear them or it might be a complex mix of feelings because of the trauma they’ve endured.

Rachel Rappaport, a spokesperson for Justice Minister David Lametti, said the government follows all proposed legislation closely as it makes its way through the parliamentary process.

“As with any Private Member’s Bill or Senate Public Bill, we will take the time to review the specific bill under consideration prior to determining the government’s position,” she said.

Legislation introduced by senators must be approved by both the Senate and the House of Commons, meaning the bill faces long odds of becoming law on its own. However such bills can prompt debate and are sometimes incorporated into future government bills.

Ms. Ataullahjan said by amending the Criminal Code to reflect the international definition of trafficking outlined in the Palermo Protocol – a UN measure to prevent, suppress and punish trafficking in persons especially women and children – Crown prosecutors will be enabled to efficiently convict traffickers.

She said the bill was proposed in collaboration with Conservative MPs Colin Carrie and Arnold Viersen.

Mr. Carrie said in a statement that it’s the moral duty of lawmakers to provide Crown prosecutors with the tools they need, and to remove barriers within the Criminal Code. Mr. Viersen said the weight of human trafficking convictions rests on the victim’s testimony instead of the actions of the traffickers, and the bill will assist survivors and increase convictions.

Julia Drydyk, executive director of The Canadian Centre to End Human Trafficking, said these changes, which have been previously recommended by the centre, will prevent further victimization when victims and survivors try to seek help from the criminal justice system.

“Survivors will only come forward if the system assists and empowers them,” she said.

The centre released a report last month detailing the routes traffickers use to transport victims of sex trafficking around the country.

It recommended governments explore ways to increase rates of prosecution by making the judicial process less traumatizing for survivors and to invest in establishing a number of expert witnesses who can participate in trials to help reduce the burden of proof on the survivor’s testimony.

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