Hon. Salma Ataullahjan moved second reading of Bill S-225, An Act to amend the Prohibiting Cluster Munitions Act (investments).

She said: Honourable senators, I first learned of cluster munitions in the 1980s, when Russian troops dropped cluster munitions across Afghanistan, leaving the countryside riddled with unexploded ordnances to this day.

Bill S-225, the cluster munitions investment prohibition act, would create a provision in the Prohibiting Cluster Munitions Act banning investments in an entity that has breached a prohibition relating to cluster munitions, explosive submunitions and explosive bomblets.

Cluster munitions are weapons designed to carry and disperse multiple explosive submunitions and/or bomblets. These weapons can be dropped from an aircraft or fired from the ground or sea by rockets or artillery. They are designed to open in mid-air and release from tens to thousands of submunitions that have the ability to indiscriminately saturate an area on the ground up to the size of several football fields. Anyone within striking areas of cluster munitions, be they military or civilian, has a substantial chance of being killed or seriously injured.

Also, any ordnance that fails to activate upon landing will effectively turn into a landmine on the ground, posing an immediate threat to the population and also for decades after the conflict is over or until the bombs have been cleared and destroyed.

This is my second time introducing this bill. The closest it has come to reality was during the First Session of the Forty-second Parliament in June 2017.

I would like to thank both Senator Jaffer and former Senator Hubley for speaking on this bill in 2017. Your insights, observations and personal experiences have spurred my determination to put an end to investments in cluster munitions in Canada.

My family has witnessed the destruction of these weapons first-hand. At the height of the Russian invasion of Afghanistan, my uncle, an orthopedic surgeon in Peshawar, Pakistan, treated countless casualties of cluster munitions, who, in desperation, had been brought over the border from Afghanistan by any means possible, including on foot, by donkey, pickup truck, car or bus, seeking medical help.

So many years later, cluster munitions are still claiming the lives of Afghan people. Sadly, I fear we may be witnessing this violent past repeating itself in Ukraine.

A few weeks ago, the UN Human Rights Office announced it had received credible reports of several cases of Russian forces using cluster munitions in populated areas in Ukraine. The International Criminal Court has since opened an investigation into possible war crimes, and testimony from survivors of suspected cluster bomb attacks is chilling. Experts also believe cluster bomblets were used in an attack on a kindergarten in the town of Okhtyrka.

These weapons know no borders and do not discriminate between civilians and soldiers on active duty. Cluster munitions were used during the Karabakh conflict, which ended in November 2020. Once again, the cluster munitions attacks caused civilian casualties, as we are currently witnessing in Ukraine.

The UN Office for Disarmament Affairs has made it clear that all types of cluster munitions cause unacceptable harm to civilians.

According to the International Committee of the Red Cross, cluster munitions, generally being free-falling weapons, are vulnerable to the slightest error or gust of wind, which means they can strike well outside the targeted area.

To make matters worse, the high failure rate of cluster munitions can prevent refugees and internally displaced persons from returning to their homes. The looming threat of these weapons also hampers humanitarian, peace-building and development efforts, including the clearance of mines and cluster munitions.

Travis was a U.S. Marine corporal deployed to Iraq. After most of the hard fighting, he decided to stay and volunteer in the removal of unexploded cluster bombs and landmines. On July 2, 2003, he was killed by an unexploded cluster munition. His mother Lynn now speaks out against the use of cluster munitions, saying:

If even the best trained military personnel can accidentally fall victim to this weapon how on earth do we think we can expect civilians to return to a land littered with them and not fall prey to them.

This, senators, is our biggest fear as we see the conflict in Ukraine.

Despite the Convention on Cluster Munitions’ successful implementation in 26 states parties that have since destroyed their stocks of cluster munitions, we still face many challenges in putting an end to the use of these weapons. A total of 16 producers of cluster munitions have yet to commit to stop production in the future, including China and Russia. Consequently, weapons that are unable to distinguish between combatants and civilians are still being manufactured and used in ongoing conflicts around the world, causing a disproportionate number of civilians to be severely injured or killed each year.

According to the Landmine and Cluster Munition Monitor, at least 360 people died or received injuries from cluster bombs in 2020. Casualties from cluster bomb remnants were also higher than for live attacks. Sadly, all recorded victims were civilians and nearly half were children.

Children are particularly at risk of falling victim to cluster munitions because they often mistake unexploded ordnances lying on the ground for toys. In fact, the cluster munitions used in Afghanistan were all disguised as bright toys, and children would reach out to pick them up. The Landmine and Cluster Munition Monitor estimates that 44% of the victims of cluster bombs worldwide are children. The number of children injured or killed by cluster bombs has risen since I last spoke on this bill.

As I just mentioned, drawn by their bright colours and toy-like appearances, children often activate unexploded munitions by picking them up, as did 4-year-old Emam who died from injuries he sustained after picking up a cluster bomblet in 2016 in east Aleppo.

Canada was among the first countries to adopt the Convention on Cluster Munitions in 2008. As of September 2021, a total of 110 states parties are adhering to the convention’s comprehensive prohibitions. The convention entered into force on August 1, 2010, and is the sole international instrument dedicated to ending the suffering caused by cluster munitions.

In 2015, Canada ratified the convention and enacted the Prohibiting Cluster Munitions Act. Yet, our current legislation does not reflect our international commitment, and it fails to meet the convention’s standards.

In September 2021, the Cluster Munition Coalition, an international civil society campaign working to eradicate cluster munitions and prevent further harm from the weapons, reported that six Canadian institutions had invested a total of US$5.75 million in companies that manufacture cluster munitions.

When I read this report, I was shocked and horrified to learn that Canadian financial institutions were continuing to invest in the production of these insidious weapons of war following the release of a previous report by the Dutch peace group PAX in 2016, which had revealed that four Canadian financial institutions had invested $565 million in cluster munitions manufacturing.

Honourable senators, I believe this is proof that naming and shaming Canadian institutions that continue to invest in cluster munitions manufacturing is not sufficient to uphold our commitment to the convention. We need stronger legislation. Otherwise, it would be hypocritical of us, as Canadians, to pride ourselves on our country’s humanitarian work abroad.

I was pleasantly surprised to learn that the Convention on Cluster Munitions’ process and substance was modelled upon the Ottawa Convention that banned anti-personnel landmines in the late 1990s.

Unexpectedly, Canada cut its international effort to help clear cluster munitions from Laos in 2012 after contributing more than $2 million between 1996 and 2011. Laos is the most cluster-bomb-contaminated country in the world on a per capita basis. The Vietnam War’s legacy in Laos is not an isolated case and 29 countries remain contaminated by cluster munitions. In 2020, casualties due to cluster munition remnants were recorded in six other countries: Afghanistan, Cambodia, Iraq, South Sudan, Syria and Yemen. Sadly, I think we will be adding Ukraine to that list now.

By continuing to allow Canadian institutions and, through them, fellow Canadians to invest in cluster munitions manufacturing, we are complicit in these avoidable deaths and injuries.

Senators, investing ethically has increasingly become an issue that is important to Canadians. In fact, 70% of Canadians believe it is important to invest in companies with strong environmental, social and governance performance.

The Canadian investment community itself has been seeking clarity regarding the issue of investment in cluster munitions, given that there is no definitive prohibition in the current legislation. Many people to whom I have spoken about this bill have been surprised to learn that our legislation does not include an explicit prohibition against investing in companies that manufacture cluster munitions. They have all expressed grave concern that the financial institutions in which they have entrusted their investments would ever invest their money in these weapons.

Investing in companies that produce cluster munitions is an active choice to support weapons that cause devastating harm, mostly to civilians. They are indiscriminate and inhumane weapons that no Canadian financial institution should be investing in. Additionally, as a banned weapon, they are a poor investment. As more countries have ratified the convention, we have seen that the market for these weapons is starting to dry up — we hope.

If the financial resources required to manufacture these weapons were no longer available to the companies that make them, this would be another positive step toward the eradication of cluster munitions. Together we can significantly enhance the protection of civilians during armed conflict, as well as post‑conflict reconstruction efforts, in concordance with the spirit of the convention.

A subsequent article in the convention states that there can be no reservations with respect to the legal obligations contained within the convention. They must be accepted in their entirety and without exception. I would also like to mention that Canada played a leading role in drafting Article 21 that established clear limitations with respect to interoperability. Other countries, such as France and Belgium — as well as other NATO and non‑NATO states — and the United Nations also value interoperability and do not have such exceptions in their respective laws.

The act in its current form, as stated by former Senator Hubley in 2017, does not go far enough. Bill S-225 aims to bring the Prohibiting Cluster Munitions Act in line with the spirit of the convention. By explicitly prohibiting investments in cluster munitions manufacturing, we would set clear guidelines for Canadian financial institutions that welcomed the idea over a decade ago. Bill S-225 also closes other existing loopholes by prohibiting Canadian financial institutions from loaning funds to these entities and even prevents them from acting as a guarantor for their loans.

The act has important gaps and has received international criticism. When the Standing Senate Committee on Foreign Affairs and International Trade studied Bill C-6, an Act to implement the Convention on Cluster Munitions, in 2014, it heard from almost 30 witnesses. In addition to the need for an explicit prohibition of investment in cluster munitions producers, a section on joint military operations also raised many concerns. The act was also publicly denounced by the International Committee of the Red Cross, and the International Committee to Ban Landmines and Cluster Munitions called it the worst legislation of any state party to the convention. Simply put, the act fails to meet the standards of the convention.

Many countries, including common law countries, have already enacted legislation prohibiting investments in companies that produce cluster munitions. One of the most effective ways to end the production of cluster munitions altogether is to cut financial ties to companies who produce them. This can only be achieved through explicit and definitive legislation.

In 2016, former minister of foreign affairs, the Honourable Stéphane Dion, was optimistic about Canada’s role in disarmament and peace building in an address at a conference marking the twentieth anniversary of the start of the Ottawa Process. He said:

Under Justin Trudeau’s leadership, Canada will again be a leader in disarmament, a leader that works with its international partners to pursue pragmatic but important change. . . .

Canada, as a determined peacebuilder, is committed to making the possible a reality.

Honourable senators, Canada has been a global leader against landmines but has lost its way. The future envisioned by the Honourable Mr. Dion did not come to fruition under the current government.

This is our chance to become leaders against the production and use of cluster munitions by drying up the financial resources to build these weapons. Thank you.

(On motion of Senator Petitclerc, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Patterson, seconded by the Honourable Senator Tannas, for the second reading of Bill S-228, An Act to amend the Constitution Act, 1867 (property qualifications of Senators).

Hon. Salma Ataullahjan moved second reading of Bill S-224, An Act to amend the Criminal Code (trafficking in persons).

She said: Honourable senators, I rise today to speak to Bill S-224, which aims to facilitate the conviction of those charged with human trafficking-related offences. This bill will amend 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. This will put the onus on the perpetrator rather than the survivors.

Bill S-224 is not a partisan bill. It’s about protecting young, vulnerable Canadians from predatory criminals who exploit their hopes and dreams for personal gain. Our judicial process currently has low rates of prosecution for human trafficking. It’s traumatizing for survivors and puts the burden of proof on victims.

The current definition in the Criminal Code suggests that a person is exploited only if fear was a driving factor in their exploitation. Here I quote:

. . . a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the 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.

However, as I will demonstrate today, human trafficking is more complex and can only be defined by the perpetrator’s actions rather than the victim’s experience.

By amending the Criminal Code to reflect the international definition of “trafficking in persons” as outlined in the Palermo Protocol, we enable the Crown to efficiently convict human traffickers. The Palermo Protocol views human trafficking as having three distinct elements: the act, the means and the purpose. Human trafficking is defined as the act of recruiting, transporting, harbouring and receiving a person by means of coercion, abuse of power or deception for the purpose of exploitation. This is not reflected in our Criminal Code.

The Palermo Protocol was adopted in 2000 at the fifty-fifth session of the General Assembly of the United Nations and has 117 signatories, including Canada. Yet, 22 years later, this is another example of Canada’s promises without concrete action. This bill proposes to remove the element of fear to reflect the international definition of trafficking in persons as outlined in the Palermo Protocol.

In its current form, the Criminal Code puts the responsibility on victims or survivors to provide compelling testimony to prove the validity of their experience. This small yet powerful change will allow the Crown to convict human traffickers. I stand here today for human trafficking survivors, for their families, for young, vulnerable Canadians and for those who are currently being exploited in plain sight.

As such, Bill S-224 is not a partisan bill: It’s about protecting young, vulnerable Canadians from predatory criminals who exploit their hopes and dreams for personal gain.

This is an important bill. Human trafficking is a modern form of slavery that is on the rise worldwide with an estimated 40 million victims. It is a practice that relies on abuse and coercion to exploit young victims for sexual purposes or work. Traffickers will approach victims in various ways, either by convincing them that they are a potential friend or boyfriend, contacting them on social media, posting ads for jobs or even threatening or kidnapping them. They will promise money, clothes, work, education or financial aid for their family. Victims often do not realize that traffickers don’t have their best interests at heart.

In Canada, the geography and layout of the highways makes it easy for traffickers to avoid detection by law enforcement and maintain control over their isolated and disoriented victims. Although there is a popular belief that victims of human trafficking are brought into the country, most victims are young Canadian women. Almost half of them were found to have come from another city in the same province, and 60% of all victims come from Ontario.

Traffickers use transport corridors to haul their victims along the Trans-Canada and the 401 highways. Many willing customers can be found near oil patch work camps in Alberta, and traffickers exploit the province’s online sex markets. In Ontario, the practice is so commonplace on highways 11 and 17 that you most likely have crossed paths with a rental car in which a trafficker and his victim were travelling from Sudbury and Thunder Bay through northern Ontario towards Winnipeg.

As I have mentioned, traffickers often recruit their victims with false promises, but can also use threats and violence to break them. It is heartbreaking to hear how they exploit vulnerability by aiming for young people dealing with homelessness, substance abuse, addiction, trauma, abuse or violence.

Among the most at-risk groups are women and girls, new immigrants, children in the welfare system, persons living with disabilities, LGBTQ2+ and migrant workers. These are Canadians already falling through the cracks.

The most vulnerable are Indigenous children who live with the impact of hundreds of years of ongoing trauma. In 2014, Indigenous people made up 4% of the population but accounted for half the trafficking victims. Recruiting young Indigenous girls is so commonplace that many survivors have described men waiting at Greyhound bus stations at night and approaching them, promising a place to stay and safety. One Indigenous survivor explained that by the age of 16, she believed it was okay to be beaten by men.

Traffickers will also use their victims to do their dirty work and recruit other vulnerable individuals, often promising them a way out. This shows the extent of manipulation, fear and gaslighting victims face on a daily basis.

Alternatively, social media has unfortunately made recruiting young Canadians and children much easier. Pedophiles can reach out to as many as 100 children per hour on popular apps like TikTok and Instagram.

Leaving such exploitation requires courage, dedication and, often, outside help. Many survivors work tirelessly to help victims escape their traffickers. However, many victims fear or distrust law enforcement, and it can take up to 18 attempts before permanently leaving human trafficking. To make matters worse, it can easily take up to two years before an adult realizes a youth in their life is being sexually exploited. This is what happened to Clementine, a teenage girl in Montreal who was exploited for a year before her parents noticed strange behaviour and worrisome scars on her body. Although she had wanted to leave many times, a trafficker’s threats to kill her family and dog made her stay.

So it’s not surprising that human trafficking is known as low risk with high reward among traffickers. It has generated about US$32 billion annually for perpetrators, and very few cases have been successfully prosecuted in Canada. In fact, according to Statistics Canada, less than 8% of perpetrators charged with human trafficking have been prosecuted.

Also, too much responsibility is put on the shoulders of people who have endured unimaginable things. Most survivors do not identify as victims as a result of manipulation and gaslighting. They can believe their trafficker cares for them. We owe them the necessary help and care. Instead, they must prove that they fear for their life on the stand, often only a few metres from their trafficker. Victims are usually the only evidence against traffickers. Without their testimony, the Crown has no case. Testimony shows that the fear-based model is the biggest issue when dealing with convictions and that the experience is more traumatizing than being forced to work in the sex trade. They must relive their nightmare during the preliminary hearing and then at full trial.

During the cross-examination, it is common for the defence lawyer to twist their words and call them a liar. We all remember a federal court judge in Alberta who asked a victim, during a sexual assault trial, “Why couldn’t you just keep your knees together?” This, as you can imagine, can lead to survivors recanting or simply dropping charges. According to the current Criminal Code, the offence rests more on a victim’s ability to perform on the witness stand rather than on what the perpetrator has done. Hence, human trafficking charges are often dropped, and traffickers are charged under related crimes such as prostitution-related offences, kidnapping, assault, sexual assault and sexual exploitation. This is not justice. This is certainly not a way to prevent, suppress and punish perpetrators of trafficking in persons.

Before I conclude, I must highlight the wonderful work done by MPs Carrie and Viersen to put an end to human trafficking in Canada. I would like to thank them both for their hard work on the original private member’s bill on human trafficking, which I now have the privilege of introducing in the Red Chamber.

Honourable senators, 22 years ago we agreed — along with 116 other nations — to prevent, suppress and punish trafficking in persons, especially women and children. Yet, the onus remains on the victims to prove fear. Colleagues, I ask you, how does a person prove fear?

This bill aims to remove one obstacle in the prosecution of human traffickers. With a simple modification to the Criminal Code, victims and survivors will finally be able to find greater justice and hopefully the safety they require to heal and rebuild their lives.

Honourable senators, by removing this barrier — the element of fear — we will finally be able to tackle bigger challenges in human trafficking in Canada. This is the first crucial step to putting an end to this horrible practice in our country. Thank you.

[Translation]

Hon. Salma Ataullahjan moved second reading of Bill S-223, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs).

She said: Honourable senators, I rise today for the second reading of Bill S-223, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs). For those of you keeping count, this is my fourth introduction of this bill, and hopefully it will be my last.

Less than six months ago during the last parliamentary session, Bill S-204, an exact copy of this bill, unanimously passed in this chamber. It also received all-party support in the other place, but sadly fell off the Order Paper for reasons out of our control.

Honourable senators, Canadians are desperately asking us to pass this piece of legislation — a culmination of 13 years of parliamentary work — without further delay. For those of you who are not familiar with this bill, I will gladly provide a summary.

Bill S-223 proposes to strengthen Canada’s response to organ trafficking by creating additional Criminal Code offences in relation to such conduct and extends extraterritorial jurisdiction over the new offences. It also seeks to amend the Immigration and Refugee Protection Act to provide that a permanent resident or foreign national is inadmissible to Canada if the Minister of Citizenship and Immigration finds that they have engaged in trafficking of human organs.

Currently, there are no laws in Canada banning Canadians from travelling abroad, purchasing organs for transplantation and returning to Canada. That is shameful, especially when we have joined most of the world in condemning the sale of organs and transplant tourism.

Over 100 countries have passed legislation banning the trade of organs. Additionally, several countries have responded with legislation strengthening existing laws that ban organ trafficking and sales. There are a number of governmental and professional bodies with initiatives to regulate domestic and international organ transplantation and tackle organ trafficking, including, for example, the Council of Europe Convention against Trafficking in Human Organs.

Until we pass this bill, we will have to rely solely on people’s ethical and moral conscience to deter Canadians from seeking and obtaining organs abroad. Unfortunately, we know that these deterrents alone are not enough.

In 2012, the World Health Organization claimed that an illegal organ was sold every hour. Overall, the number of illegal transplants worldwide is believed to be around 10,000 a year. This would mean that in the past 13 years that we have dedicated to putting an end to organ harvesting and trafficking, over 130,000 illegal transplants have occurred.

The international character of this problem, which often sees vulnerable people exploited to meet the demand for organ transplantation in places like Canada, requires more than just a condemnation. We need legislation now. When this legislation is passed, perpetrators will know that they can be prosecuted in Canada and banned from entry.

Despite our inability to eradicate human rights violations around the world, we can enact change at home. It is entirely within our power to avoid complicity of transplant tourism within our own borders. This bill is a welcome effort in that complicity avoidance.

It is up to us to give domestic reality to the international aspirations embodied by international law. We, as parliamentarians, whether in government or in opposition, can and must do our part. This globally pervasive practice needs to be stopped without any further delay. Thank you.