CRIMINALIZATION

Table of Concordance: International Law on the Smuggling of Migrants, Trafficking in Human Being, and the Sale of Children, Child Prostitution, Child Pornography and Child Sex Tourism and the Implementation in Canadian Law

As prepared for Workshop on Trafficking in Women and Children at
"Emerging Challenges: Appliciations of International Law in Canadian Courts"

Commitments of States Parties	International Provision	Implementation
CRIMINALIZATION – Harmonized Criminal Definitions
Participation in a criminal organization	TOC Art. 5 (1)(a)	BILL C-24 s. 467.11 “(1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years”
Organizing, directing, aiding, abetting, facilitating or counseling the commission of serious crime involving a criminal group [a serious crime = conduct constituting an offence punishable by a maximum deprivation of liberty of at least 4 years or a more serious penalty; TOC, Art. 2 (b)]	TOC Art. 5 (1)(b)	BILL C-24 s. 467.12 “(1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”
The laundering of proceeds of crime	TOC, Art. 6	Existing dispositions concerning proceeds of crime and money laundering. BILL C-11 s. 130. (money laundering and proceeds of crime with respect to smuggling in migrants and trafficking in human beings) “(1) No person shall possess any property or any proceeds of any property knowing that all or any part of the property or of those proceeds was obtained or derived directly or indirectly as a result of the commission of an offence under subsection (2) or section 117, 118, 119, 122, 124, 126, 127, 129 or 131. (2) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner or by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing or believing that all or part of that property or those proceeds was obtained or derived directly or indirectly as a result of the commission of an offence under subsection (1) or section 117, 118, 119, 122, 124, 126, 127, 129 or 131.” Proceeds of Crime (Money Laundering) Act, 2000 BILL C-24 s. 462.37 “(1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law. (2) Where the evidence does not establish to the satisfaction of the court that the designated offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property. (2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.”
The corruption of public officials and the acceptance by public officials of bribes and undue advantaged	TOC, Art. 8 (1)	Corruption of Foreign Public Officials Act, 1998 “3. (1) Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official (a) as consideration for an act or omission by the official in connection with the performance of the official's duties or functions; or (b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.”
Obstruction of justice (intimidation of witnesses or of justice or law enforcement officials)	TOC, Art. 23	BILL C-24 s. 423. “(1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing, (a) uses violence or threats of violence to that person or his or her spouse or common-law partner or children, or injures his or her property; (b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged; (c) persistently follows that person; (d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them; (e) with one or more other persons, follows that person, in a disorderly manner, on a highway; (f) besets or watches the place where that person resides, works, carries on business or happens to be; or (g) blocks or obstructs a highway.” BILL C24 s. 423.1 “(1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in (a) a group of persons or the general public in order to impede the administration of criminal justice; (b) a justice system participant in order to impede him or her in the performance of his or her duties; or (c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization. (2) The conduct referred to in subsection (1) consists of (a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons; (b) threatening to engage in conduct described in paragraph (a) in Canada or elsewhere; (c) persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway; (d) repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them; and (e) besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be.”
Smuggling of migrants	PSM Art. 6 (1) (a)	BILL C-11 s. 117 “(1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.”
Attempting to commit smuggling of migrants and related offences	PSM Art. 6 (2) (a)
Participating as an accomplice to commit smuggling of migrants and related offences	PSM Art. 6 (2) (b)
Organizing or directing others to commit any smuggling of migrants and related offences	PSM Art. 6 (2) (c)
Producing a fraudulent travel/identity document for the purpose of enabling the smuggling of migrants	PSM Art. 6 (1) (b) (i)	BILL C-11 s. 122 “(1) No person shall, in order to contravene this Act, (a) possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person's identity; (b) use such a document, including for the purpose of entering or remaining in Canada; or (c) import, export or deal in such a document.” “(2) The court, in determining the penalty to be imposed, shall take into account whether (a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121(2); and (b) the commission of the offence was for profit, whether or not any profit was realized”
Procuring, providing or possessing a fraudulent travel/identity document for the purpose of enabling the smuggling of migrants	PSM Art. 6 (1) (b) (ii)
Enabling a non-national or non-permanent resident to remain in the State concerned illegally by means of a fraudulent travel/identity document	PSM Art. 6 (1) (c)
Aggravating circumstances (smuggling of migrants and related offences): endangering or the likely endangerment of the lives of the migrants, as well as inhuman or degrading treatment, for exploitation	PSM Art. 6 (3) (a), (b)	BILL C-11 s. 121 “(1) The court, in determining the penalty to be imposed under subsection 117(2) or (3) or section 120, shall take into account whether (a) bodily harm or death occurred during the commission of the offence; (b) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization; (c) the commission of the offence was for profit, whether or not any profit was realized; and (d) a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence. (2) For the purposes of paragraph (1)(b), ``criminal organization'' means an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence. “
Trafficking in human beings	PTP Art. 5 (1)	BILL C-11 s. 118. “(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” (C11 s.121 provides for aggravating circumstances)
Attempting to traffic in human beings	PTP Art. 5 (2) (a)
Participating in the trafficking in human beings	PTP Art. 5 (2) (b)
Organizing or directing other persons to traffic in human beings	PTP Art. 5 (2) (c)
Take all appropriate measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practices, or the exploitative use of children in pornographic performances and materials.	CRC Art. 34	BILL C-15 A Criminalization of “luring a child” by means of a computer system
Sale of children (the offering, delivering or accepting, by whatever means, a child for the purpose of sexual exploitation, transfer of the organs of the child for profit and engagement of the child in forced labour) (fraudulent adoptions)	CRCPSC Art.3 (a)	BILL C 27 “ (2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who (a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and (b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.”
Offering, obtaining, procuring or providing a child for child prostitution nationally or transnationally (sex tourism)	CRCPSC Art.3 (b)	BILL C 27 “(4.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 173 or subsection 212(4) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of the Immigration Act.”
Producing, distributing, disseminating, importing, exporting, offering, selling, possessing for the above purposes child pornography	CRCPSC Art.3 (c)	Criminal Code s. 163.1 Bill C-15A proposes to amend the definition of offences relating to distribution of child pornography; adds definition of accessing child pornography “
Attempting to participate in the sale of children, child prostitution and child pornography	CRCPSC Art. 3
ESTABLISH LIABILITY OF LEGAL PERSONS
Take measures to establish the liability (criminal, civil, administrative) of legal persons for participating in serious crimes involving an organized criminal group, or in money laundering, corruption, and obstruction of justice.	TOC, Art. 10
EXTRADITION/JURISDICTION OVER TRANSNATIONAL OFFENCES
Establish jurisdiction over sale of children, child prostitution and child pornography in cases where the alleged offender is a national of that State or a person who has his habitual residence in its territory; or when the victim is a national of that State	CRCPSC Art. 4	BILL C-27 made it possible for the Canadian prosecution of Canadian citizens or permanent residents who sexually abused children, including engaging in child prostitution, while outside Canada. The amendments to the Criminal Code allow not only for the prosecution of offences related to child sex tourism, such as child prostitution, but also of child sexual exploitation offences, such as sexual exploitation, indecent acts, child pornography and incest.
The sale of children, child prostitution and child pornography are to be deemed as extraditable offences	CRCPSC Art. 5	Extradition Act, 1999
Implement measures to facilitate extraditions of offenders (or to establish jurisdiction over offences where offender is not extradited)	TOC, Art. 15 & 16	Extradition Act, 1999
MUTUAL LEGAL ASSISTANCE & Law Enforcement Cooperation
Mutual legal assistance to be afforded to the fullest extent possible under relevant national and international laws: (a) Taking evidence or statements from persons; (b) Effecting service of judicial documents; (c) Executing searches and seizures, and freezing; (d) Examining objects and sites; (e) Providing information, evidentiary items and expert evaluations; (f) Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records; (g) Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes; (h) Facilitating the voluntary appearance of persons in the requesting State Party; (i) Any other type of assistance that is not contrary to the domestic law of the requested State Party.	TOC, Art. 18	Mutual Assistance in Criminal Matters Act, 1998
Designation of central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either execute them or transmit them to the competent authority for execution	TOC, Art. 18 (13)
Enhance law enforcement cooperation in conducting enquiries and investigations, sharing information, etc.	TOC, Art. 27
States Parties shall cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea	PSM Art.7, 8
States Parties shall afford each other the greatest measure of assistance in connection with offences involving the sale of children, child prostitution and child pornography	CRCPSC Art. 6
States Parties shall take all necessary steps to strengthen international cooperation to prevent, detect, investigate, prosecute and punish those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism	CRCPSC Art. 10
TRANSFER OF SENTENCED PERSONS
Consider entering into agreements on the transfer of sentenced persons	TOC, Art. 17
FACILITATE OFFFENDER COOPERATION WITH LAW ENFORCEMENT
Take appropriate measures to encourage persons who participate or have participated in organized criminal activities to cooperate with the police	TOC, Art. 26 (1)	BILL C-24 “(10) A person who commits an act or omission that would otherwise constitute an offence is justified in committing it if (a) a public officer directs him or her to commit that act or omission and the person believes on reasonable grounds that the public officer has the authority to give that direction; and (b) he or she believes on reasonable grounds that the commission of that act or omission is for the purpose of assisting the public officer in the public officer's law enforcement duties.”
Consider possibility of mitigating punishment of and/or granting immunity from prosecution to an accused person who provides substantial cooperation in the investigation or prosecution of a serious offence	TOC, Art. 26 (2)& (30
MEASURES TO COMBAT MONEY LAUNDERING
Establish comprehensive domestic regulatory regime for banks and non-bank institutions in order to deter and detect all forms of money laundering	TOC, Art, 7 (1)(a)	Proceeds of Crime (Money Laundering) Act, 2000
Develop an ability to cooperate with other jurisdictions	TOC, Art. 7 (1)(b)
Consider the establishment of financial intelligence unit to monitor suspicious transactions	TOC, Art. 7 (1)(b)
Promote global cooperation among judicial, law enforcement and financial regulatory authorities in order to combat money laundering	TOC, Art. 7 (4)
Adopt measures to enable the confiscation of proceeds of crime and forfeiture of assets used in the commission of the crime	TOC, Art 12
Cooperate with other jurisdictions for purposes of confiscation of proceeds and criminal assets forfeiture (bank secrecy cannot be invoked as ground for refusal to cooperate)	TOC, Art.13
Cooperate with other jurisdictions in the disposal of the confiscated proceeds and assets (sharing the confiscated funds, compensating victims, contributing part of them to agencies fighting organized crime)	TOC, Art. 14
MEASURES AGAINST CORRUPTION
Adopt measures to promote the integrity of public official and prevent, detect and punish acts of corruption	TOC, Art. 9	BILL C-11. 129 (1) Every person is guilty of an offence who (a) being an officer or an employee of the Government of Canada, knowingly makes or issues any false document or statement, or accepts or agrees to accept a bribe or other benefit, in respect of any matter under this Act or knowingly fails to perform their duties under this Act; (b) gives or offers to give a bribe or consideration to, or makes an agreement or arrangement with, an officer to induce the officer not to perform their duties under this Act; (c) falsely personates an officer or by any act or omission leads any person to believe that the person is an officer; or (d) obstructs or impedes an officer in the performance of the officer's duties under this Act.
PROTECTION OF WITNESSES
Measures to protect witnesses against intimidation or retaliation, including: evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness; physical protection measures; protection of identity and information about the whereabouts of the witnesses	TOC, Art 24
BORDER MEASURES
States Parties shall strengthen border controls necessary to prevent and detect smuggling of migrants	PSM Art.11
States Parties shall strengthen border controls necessary to prevent and detect trafficking in persons	PTP Art. 11
DOCUMENT CONTROL
States Parties shall ensure the security and integrity of travel/identity documents issued on its behalf and prevent their unlawful creation, issuance and use	PSM Art. 12 PTP Art. 12
IMPROVED INVESTIGATIONS
Establishment of joint investigation teams	TOC, Art. 19
Cooperation in the use of covert operations, electronic surveillance, controlled delivery, etc.	TOC, Art. 20
TRAINING AND TECHNICAL ASSISTANCE
Provide training to law enforcement personnel, prosecutors, magistrates, customs personnel and other justice professionals in order to prevent and combat organized crime	TOC Art. 29
Provide training and technical assistance which will facilitate extradition and mutual legal assistance	TOC Art. 29 (3)
States Parties shall provide or strengthen specialized training for immigration and other relevant officials in the prevention of the smuggling of migrants	PSM Art. 14
States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of the trafficking in persons	PTP Art. 10 (2)
States Parties shall take measures to ensure appropriate legal and psychological training for persons who work with victims of the sale of children, child prostitution and child pornography	CRCPSC Art. 8 (4)
INFORMATION EXCHANGE
Develop and share analytical expertise and information concerning organized criminal activities with other jurisdictions	TOC Art. 28
Monitor policies and measures to combat organized crime and evaluate their effectiveness	TOC Art. 28 (3)
States Parties shall exchange relevant information among themselves for the purpose of preventing and combating the smuggling of migrants (including intelligence, information about patterns of smuggling, the criminal groups involved, scientific and technical information, best practices, etc.)	PSM Art. 10
Law enforcement, immigration and other relevant authorities of States Parties shall exchange information in order to determine the incidence of trafficking and the methods used by organized criminal groups to engage in the trafficking in persons	PTP Art. 10 (1)
OTHER PREVENTION MEASURES
Endeavour to reduce opportunities for organized criminal groups to participate in lawful markets	TOC Art. 31
Endeavour to promote public awareness regarding the existence, causes, and gravity of transnational organized crime	TOC Art. 31
States Parties shall provide programs to increase public awareness and public information about smuggling and the risk of victimization by organized crime groups	PSM Art. 15
States Parties shall establish comprehensive policies and programs to prevent and combat trafficking and to protect victims of trafficking	PTP Art. 9 (1)
States Parties shall endeavour to undertake research, information and media campaigns to combat trafficking in persons and to involve civil society	PTP Art. 9 (2), (3)
States Parties shall adopt or strengthen, implement and disseminate laws, administrative measures, social policies nd programs to prevent the sale of children, child prostitution and child pornography	CRCPSC Art. 9 (1)
States Parties shall promote public awareness of the preventive measures and harmful effects of the sale of children, child prostitution and child pornography	CRCPSC Art. 9 (2)

PROTECTION OF VICTIMS & ASSISTANCE MEASURES
States Parties shall take appropriate measures to protect victims of smuggling, in particular to the right to life and the right not be subjected to torture or other inhuman, cruel or degrading treatment or punishment	PSM Art. 16
States Parties shall protect privacy and identity of victims of trafficking	PTP Art.6 (1)
States Parties shall ensure that victims of trafficking have access to information on relevant court and administrative proceedings	PTP Art. 6 (2) (a)
States Parties shall ensure that assistance is rendered to victims of trafficking to ensure their views are heard during criminal proceedings against offenders in a manner that is not prejudicial to the rights of the defence	PTP Art. 6 (2) (b)
States Parties shall consider measures to assist for the physical, psychological and social recovery of victims of trafficking, as well as the special needs of children, the physical safety of victims, and compensation for damage suffered	PTP Art. 6 (3), (4), (5), (6)
States Parties shall adopt appropriate measures to protect the rights of victims of the sale of children, child prostitution and child pornography	CRCPSC Art. 8 (1), (2), (3)
States Parties shall take all feasible measures to ensure the full social integration and full physical and psychological recovery of victims of the sale of children, child prostitution and child pornography.	CRCPSC Art. 9 (3)
States shall ensure that victims of the sale of children, child prostitution and child pornography have access to adequate procedures to seek, compensation for damages for those legally responsible	CRCPSC Art. 9 (4)
STATUS AND REPATRIATION OF INDIVIDUALS
States Parties shall facilitate the return of smuggled persons without undue delay	PSM Art. 18	BILL C-11 ss. 56-60 clarifies conditions of detention and release of permanent residents and foreign nationals.
States Parties shall facilitate safe return of victims of trafficking	PTP Art. 8 (1)
States Parties shall consider legislative measures allowing victims of trafficking to remain in their territory	PTP Art. 7 (1)	Bill C-11. 25. “(1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations”
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.	CRC Art. 37	BILL C-11 60. “For the purposes of this Division, it is affirmed as a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child”
SEIZURE AND CONFISCATION
States Parties shall take measures to enable seizure and confiscation of assets and proceeds derived from the sale of children, child prostitution and child pornography	CRCPSC Art. 7