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BILL S-204: AN ACT TO AMEND THE CRIMINAL CODE AND THE IMMIGRATION AND REFUGEE PROTECTION ACT (TRAFFICKING IN HUMAN ORGANS) 43-2-S204-E 25 March 2021 Lara Coleman, Jean-Philippe Duguay and Alexandra Smith Parliamentary Information and Research Service AUTHORSHIP Date Author Division 25 March 2021 Lara Coleman Legal and Social Affairs Division Jean-Philippe Duguay Legal and Social Affairs Division Alexandra Smith Legal and Social Affairs Division ABOUT THIS PUBLICATION Library of Parliament Legislative Summaries summarize bills currently before Parliament and provide background about them in an objective and impartial manner.
They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations.

Legislative Summaries are revised as needed to reflect amendments made to bills as they move through the legislative process.
For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force.

It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force.
Any substantive changes in this Library of Parliament Legislative Summary that have been made since the preceding issue are indicated in bold print.

© Library of Parliament, Ottawa, Canada, 2021 Legislative Summary of Bill S-204 (Preliminary version) 43-2-S204-E Ce document est également publié en français.
CONTENTS 1 BACKGROUND ...................................................................................................................... 1 1.1 1.2 1.3 Background on Organ Trafficking in Canada and Abroad ....................................................... 1 Trafficking in Persons for the Purpose of Organ Removal and the Criminal Code ............................................................................................................ 2 Other Legislation Related to Trafficking in Persons for the Purpose of Organ Removal .......................................................................................... 3 2 DESCRIPTION AND ANALYSIS ............................................................................................. 3 2.1 2.2 2.3 New Offences Related to Trafficking in Human Organs (Clause 2) ............................................................................................................................... 4 Extraterritorial Jurisdiction (Clause 2) ............................................................................................................................... 4 Amendments to the Immigration and Refugee Protection Act (Clause 3) ............................................................................................................................... 5 i Bill S-204 LEGISLATIVE SUMMARY OF BILL S-204: AN ACT TO AMEND THE CRIMINAL CODE AND THE IMMIGRATION AND REFUGEE PROTECTION ACT (TRAFFICKING IN HUMAN ORGANS) 1 BACKGROUND Bill S-204, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs), was introduced in the Senate by Senator Salma Ataullahjan on 23 September 2020.1 Bill S-204 creates specific offences under the Criminal Code (Code) in relation to trafficking in human organs, including “transplant tourism.” It also amends the Immigration and Refugee Protection Act (IRPA) to make inadmissible to Canada permanent residents or foreign nationals who, in the opinion of the Minister of Citizenship and Immigration, have engaged in any activities relating to trafficking in human organs.
1.1 BACKGROUND ON ORGAN TRAFFICKING IN CANADA AND ABROAD Organ trafficking is commonly understood as the trafficking in persons for the removal of their organs, and is prohibited by international law as part of a general prohibition on human trafficking, defined to include exploitation for the removal of organs.2 Governmental and non-governmental organizations, including medical associations, have interpreted this prohibition to include any transplantation where the organ provider benefits or profits from the transaction.3 Conservative estimates indicate that organ trafficking generates US$840 million to US$1.7 billion in revenue annually from around 12,000 illegal transplants.4 Contributing to this is the global demand for organs that far exceeds organ availability.
In Canada in 2018, for example, there were 4,351 people waiting for organ transplants; 2,782 organs were transplanted; and 223 people died waiting for a transplant.5 Canada is an origin, rather than destination, country for patients seeking to purchase organs.
Canada is one of the top countries of origin for patients seeking organs abroad.6 Currently, Canada does not have a law that bans Canadians from travelling abroad to receive a transplant, also known as “transplant tourism.” This phenomenon is widely condemned for both ethical and health reasons by the international community and medical professionals.7 1 Bill S-204 1.2 TRAFFICKING IN PERSONS FOR THE PURPOSE OF ORGAN REMOVAL AND THE CRIMINAL CODE The Code prohibits trafficking in persons in sections 279.01 and 279.011 (for persons under the age of 18 years).
These sections criminalize recruiting, moving, harbouring or exercising control over a person with intent to exploit that person.

An individual may not give consent to being trafficked.
Section 279.04(1) describes exploitation as follows: 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.
Factors (2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused (a) used or threatened to use force or another form of coercion; (b) used deception; or (c) abused a position of trust, power or authority.

Section 279.04(3) clarifies that exploitation also includes causing a person, by means of deception or coercion, to have an organ or tissue removed.
Trafficking in persons is an indictable offence punishable by a minimum of four years’ imprisonment (five years if the victim was under 18 years of age), up to a maximum of 14 years.

If the perpetrator kidnaps, commits an aggravated assault or sexual assault, or causes the victim’s death during the commission of the offence, the offence is punishable by a maximum term of life imprisonment and a mandatory minimum sentence of five years (six years if the victim was under 18 years of age).
It is also an offence to receive a financial or other material benefit knowingly obtained through human trafficking.

The maximum sentence for this offence is 10 years if the victim is an adult.

If the victim is under 18 years of age, the maximum sentence is 14 years and a mandatory minimum of two years applies (section 279.02).

Related offences of withholding or destroying documents are also included in the Code (section 279.03).
2 Bill S-204 Pursuant to section 7(4.11) of the Code, any Canadian citizen or permanent resident who commits an offence listed in sections 279.01 to 279.03 outside of Canada is deemed to have committed the offence in Canada.

This section ensures that the offence of trafficking in persons applies extraterritorially.
It should be noted that the United Nations Office on Drugs and Crime’s Assessment Toolkit on Trafficking in Persons for the Purpose of Organ Removal distinguishes the terms “organ trafficking” or “trafficking in organs” from “trafficking in persons for organ removal.” It explains: Trafficking in organs and trafficking in persons for organ removal are different crimes, though frequently confused in public debate and among the legal and scientific communities.
In the case of trafficking in organs, the object of the crime is the organ, whereas in the case of human trafficking for organ removal, the object of the crime is the person.

Trafficking in organs may have its origin in cases of human trafficking for organ removal, but organ trafficking will also frequently occur with no link to a case of human trafficking.
The mixing up of these two phenomena could hinder efforts to combat both phenomena and provide comprehensive victim protection and assistance.8 1.3 OTHER LEGISLATION RELATED TO TRAFFICKING IN PERSONS FOR THE PURPOSE OF ORGAN REMOVAL There have been several attempts in the last decade to amend the Code to include sections explicitly dealing with the trafficking of human organs and other body parts through Senate Public Bills and private members’ legislation in the House of Commons.9 The most recent of these was Bill S-240, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs), also introduced by Senator Ataullahjan on 31 October 2017.
Bill S-240 was adopted by the Senate on 23 October 2018 with amendments by the Standing Senate Committee on Human Rights.10 It then progressed through the House of Commons where it was further amended by the House of Commons Standing Committee on Foreign Affairs and International Development and returned to the Senate with further amendments on 30 April 2019.11 However, it was not adopted before it died on the Order Paper when the election was called.
2 DESCRIPTION AND ANALYSIS Bill S-204 contains three clauses.

The first two add new offences to the Code, while the third amends IRPA.

3 Bill S-204 2.1 NEW OFFENCES RELATED TO TRAFFICKING IN HUMAN ORGANS (CLAUSE 2) Clause 2 of the bill adds new section 240.1(1) to the Code.
This section makes it an offence to: • receive an organ transplant or obtain an organ for transplant into another person without the informed consent of the person from whom the organ was removed or a person authorized to consent on their behalf; • carry out, participate in or facilitate the removal of an organ without the informed consent of the person from whom the organ was removed or a person authorized to consent on their behalf; and • do anything in connection with the removal of an organ from the body of another person on behalf of, at the direction of, or in association with the person who removes the organ, knowing that the person from whom it was removed (or a person authorized to consent on behalf of the person from whom it was removed) did not give informed consent to the removal, or being reckless as to whether or not such consent was given.
In each case, the accused must have actual knowledge that the person from whom the organ was removed did not give consent, be willfully blind, or be reckless with regard to whether or not consent was given.

New section 240.1(2) makes it an offence to obtain, participate in or facilitate an organ transplant knowing that, or being reckless as to whether or not, the organ was obtained for consideration.
Offences under sections 240.1(1) and 240.1(2) are indictable offences punishable by a maximum of 14 years of imprisonment (new section 240.1(3)).

2.2 EXTRATERRITORIAL JURISDICTION (CLAUSE 2) Clause 1(1) of the bill adds new section 7(4.2) to the Code, which provides that any Canadian citizen or permanent resident who commits an offence under new section 240.1 outside Canada is deemed to have committed that offence in Canada.
In other words, Canada would have extraterritorial jurisdiction over this offence.

Section 6(2) of the Code states that, subject to the Code or any other Act of Parliament, no person shall be convicted of an offence committed outside Canada.

As a result, extraterritorial jurisdiction provisions are often included in Canadian legislation dealing with international and transnational crime, including other offences in relation to trafficking in persons.
4 Bill S-204 Clause 1(2) also amends section 7(4.3) of the Code to require the consent of the Attorney General or Solicitor General of the province to initiate the prosecution of an offence falling under new section 7(4.2).12 No such consent is required for the extraterritorial prosecution of other human trafficking offences under the Code.
2.3 AMENDMENTS TO THE IMMIGRATION AND REFUGEE PROTECTION ACT (CLAUSE 3) Section 35(1) of IRPA lists the grounds upon which permanent residents and foreign nationals are inadmissible to Canada for human or international rights violations.13 Clause 3 amends section 35(1) by adding a sixth ground of inadmissibility: engaging in conduct that, in the opinion of the Minister of Citizenship and Immigration, would constitute an offence under section 240.1 of the Criminal Code.

NOTES 1.

2.
NOTES 1.

2.

Bill S-204, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs), 42nd Parliament, 1st Session.

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol) is the human rights instrument that provides the international legal definition of human trafficking.
It was adopted by General Assembly Resolution A/RES/55/25 of 15 November 2000, ratified by Canada in May 2002, and entered into force on 25 December 2003.
For the purposes of this Protocol: (a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) “Child” shall mean any person under eighteen years of age.
3.

See, for example, Participants in the International Summit on Transplant Tourism and Organ Trafficking convened by The Transplantation Society and International Society of Nephrology in Istanbul, Turkey, April 30–May 2, 2008, The Declaration of Istanbul on Organ Trafficking and Transplant Tourism.

The Declaration of Istanbul was updated in 2018 “in response to clinical, legal and social developments in the field.” 4.
Channing May, Transnational Crime and the Developing World, Global Financial Integrity, March 2017.

5 Bill S-204 5.

6.

7.

8.

9.

10.

11.

12.

Canadian Institute for Health Information, Despite progress, Canada’s organ supply still isn’t meeting demand, News release, 5 December 2019.

Yosuke Shimazono, “The state of the international organ trade: a provisional picture based on integration of available information,” Bulletin of the World Health Organization, Vol.

85, No.

12, December 2007, pp.


901–980.

Other major “organ-importing countries” include the United States, Australia, Israel, Japan, Oman and Saudi Arabia.

Royal Canadian Mounted Police, “Illegal organ trade,” Gazette, Vol.

76, No.

3, 3 October 2014.

United Nations Office on Drugs and Crime, Assessment Toolkit on Trafficking in Persons for the Purpose of Organ Removal, 2015, p. 17.
See Bill C-561, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking and transplanting human organs and other body parts), 41st Parliament, 2nd Session; Bill C-381, An Act to amend the Criminal Code (trafficking and transplanting human organs and other body parts), 40th Parliament, 3rd Session; Bill C-381, An Act to amend the Criminal Code (trafficking and transplanting human organs and other body parts), 40th Parliament, 2nd Session; and Bill C-500, An Act to amend the Criminal Code (trafficking and transplanting human organs and other body parts), 39th Parliament, 2nd Session.
Senate, Standing Committee on Human Rights, Twelfth Report, 7 June 2018.

House of Commons, Standing Committee on Foreign Affairs and International Development, Twenty-third Report: Bill S-240, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs), 28 February 2019.

The term “Attorney General” is defined in section 2 of the Criminal Code (Code), R.S.C.

1985, c. C-46 (paragraph (a)).


With respect to the Northwest Territories or the Yukon, consent would be given by the Attorney General of Canada or his or her lawful deputy (Code, s. 2, definition of “Attorney General,” para.

(b)).

13.
Section 35(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, states: 35(1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; (b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; (c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.
6 Bill S-204