Progressive Conservative and member of the Ontario legislature[1], Laurie Scott, recently re-introduced[2] Saving The Girl Next Door Act (the “Act”) in its first reading on September 21, 2016[3]. The Act was first introduced in February.[4]

The Act is meant to proclaim a day to raise awareness around human trafficking as well as provide several protections to trafficking victims like protection orders and publication bans. More notable, however, is the creation of a new statutory tort, the tort of human trafficking. While this new tort of human trafficking may provide additional avenues for human trafficking victims seeking justice, much remains to be said about how the Act defines the tort and questions remain about how the Courts will apply this new tort.[5]

The tort of human trafficking has two elements.[6] The first element is that the human trafficker either abducted, recruited, transported or harboured a person, or exercised control, direction or influence over the movements of a person.[7] The second element is that the human trafficker “uses force, the threat of force, fraud, deception, intimidation, the abuse of power or a position of trust or the repeated provision of a controlled substance, in order to cause, compel or induce that [the victim] to become involved in prostitution […], to provide forced labour or services, or to have an organ or tissue removed.”[8] Though the Act is uncertain what is meant by prostitution, Ms. Scott allegedly indicated that the bill “will make a difference.”[9] Nevertheless, the Act does not define or outline how it will make a difference especially in terms of application to the realities of human trafficking victims.

For instance, the realities of trafficking victims are complex and require much more nuance beyond determining whether they consented to the activities in question. Despite the tort of human trafficking making it clear that “it is no defence that the plaintiff consented to the any of the conduct in question”[10], the tort assumes that prostitution is human trafficking and does not attempt to distinguish people who provided sexual services in a consensual manner from people who are being forced to sell such services against their own will.

Even more to the point, Ms. Scott also introduced a petition signed by people from Peterborough, Ontario. This petition outlined that “the average age of a victim is 14 years old, and over 90% of victims are Canadian-born.”[11] Aside from a dated-RCMP report, it is unclear how and where these statistics are obtained, especially since these statistics are often cited without reference to the original source, including in the dated-RCMP report.[12]

Further, the Saving The Girl Next Door Act has remnants of Bill C-36, Protection of Communities and Exploited Persons Act (“Bill C-36”) which is now law and was passed under the former Conservative government.

For one, Bill C-36, like the Act, assumes prostitution to be human trafficking.[13]

But once you look into how both the Act and Bill C-36 define procurement of prostitution, the similarities become all too clear.

In Bill C-36, procuring is defined as “everyone who procures a person to offer or provide sexual services for consideration, for the purpose of [purchasing sexual services], recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration or exercises control, direction or influence over the movements of that person, is guilty[…].”[14]

An authoritative decision on the definition of procuring defines control as “invasive behavior to ascendancy (i.e., domination, power, etc.) which leaves little choice to the person controlled.”[15] Control also includes direction, where movements of a person are controlled through imposed rules or behaviours; direction does not mean “the person being directed from having a certain latitude or margin for initiative.”[16] In other words, the person being directed can have some room for exercising their own direction. In comparison to direction and control, the Quebec Court of Appeal defines influence as “any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence.”[17] This definition is cited by a decision citing the procuring section recently enacted under Bill C-36.[18]

Still, just like Bill C-36, I suspect much criticism follow with this new Act.

For example, one of the major condemnations by people who support criminalization of prostitution is that the judiciary often lacks the training and understanding of human trafficking.

The Trafficking in Persons (“TIPs”) report developed by the United States is a tool to assess and grade other foreign governments initiatives related to human trafficking.[19] The higher the rating, the more funding a country receives to help combat human trafficking.[20] The theme of the 2016 TIPs report emphasized the need for more convictions—or, increasing criminalization. So, not only are there incentives to maintain a higher grade, there are incentives to increasing criminalization. However, not much seems to differ in terms of its recommendations for countries with the highest rating, tier 1, like Canada and Sweden.

Canada’s Bill C-36 was marketed as Canada’s Nordic Model, wherein the Nordic Model originated in Sweden. TIPs recommends that both Canada and Sweden increase training and understanding of human trafficking among judges, and other parties.[21]

Many people speak of the successes of the Swedish model (i.e., the Nordic Model) but there is very little discussion about what those successes actually entail.

In fact, in a comprehensive report prepared for the Federal/Provincial/Territoral Forum of Status of Women Senior Officials, one of conclusions emphasized that “effective enforcement”[22] could be seen through the changing attitudes in judges, and other officials. In this particular instance in the report, the author refers to Melissa Farley’s factum in the Bedford v Canada decision, where the Ontario Superior Court of Justice assigned lesser weight to Farley’s evidence given her “problematic”[23] evidence which contradicted itself in many instances.[24] The report continues, “Sweden’s Sex Purchase law first came into force, these groups were very critical of the legislation, saying that it would be impossible to find evidence and prosecute cases. By 2005, however, these groups changed their view and now support the law.” The report cites Gunilla Ekberg[25], one of the individuals who testified at Parliament’s Standing Committee on Justice and Human Rights supporting Bill C-36.

If the TIPs report is any indication on what success entails, including increasing criminalization attached with more funding, then perhaps the real intentions of combatting the war on human sex trafficking[26], as Laurie Scott so eloquently called her efforts, is just more money in the bag especially for those lawyers who will be representing human trafficking victims bringing claims under the tort of human trafficking—the very same victims that may come from vulnerable and marginalized backgrounds with little to no income. So, who are the real ones profiting on the exploitation inherent to prostitution? Time will tell…

[1] Ontario, Legislative Assembly, 41st Parl, 2nd Sess, Laurie Scott, online: http://www.ontla.on.ca/web/members/members_detail.do?locale=en&ID=2116

[2] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#P641_142456.

[3] Ontario, Legislative Assembly, 41st Parl, 2nd Sess, (16 September 2016), online: .http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4133&detailPage=bills_detail_status.

[4] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#P641_142456.

[5] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s i, online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[6] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s 3, online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[7] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s 3(a), online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[8] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s 3(b), online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[9] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#para842

[10] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s 22(2), online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[11] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#para842.

[12] RCMP Report (not publicly available)

[13] http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6767128&File=4

[14] http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6767128&File=4 s 286.3(1)

[15] R v Perreault, 1996 CarswellQue 3093 at para 11.

[16] Ibid

[17] Ibid.

[18] R v Alexander, 2016 ONCJ 452.

[19] United States, Trafficking In Persons, online: https://www.state.gov/j/tip/rls/tiprpt/.

[20] EMPOWER Foundation (Thailand), “No more TIPS please”, online: http://www.nswp.org/sites/nswp.org/files/No%20More%20TIPs%20Please_Empower.pdf.

[21] United States, Trafficking in Persons Report, “Sweden” at p 354, online: http://www.state.gov/documents/organization/258881.pdf; United States, Trafficking in Persons Report, “Canada” at p 123, online: http://www.state.gov/documents/organization/258878.pdf.

[22] N. Barrett, International Centre for Criminal Law Reform and Criminal Justice Policy “An Exploration of Promising Practices in Response to Human Trafficking in Canada” at p 28, online: http://www.humanservices.alberta.ca/documents/Human-Trafficking-in-Canada.pdf.

[23] Bedford v Canada, 2010 ONSC 4264 (CanLII) at para 353.

[24] Bedford v Canada, 2010 ONSC 4264 (CanLII) at para 353.

[25] https://openparliament.ca/committees/justice/41-2/38/gunilla-ekberg-1/?singlepage=1; https://openparliament.ca/committees/justice/41-2/38/gunilla-ekberg-1/only/

[26] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#para842