Our Child Sex Offender Laws Should Cross Borders
By Benjamin Perrin
Canada has only convicted one person in the last decade under our extraterritorial child sex offender law. This stands in stark contrast to other developed countries that actively enforce similar laws.
Canadians are continuing to travel abroad and sexually abuse children, despite a criminal prohibition dating to 1997.
Documents recently released by the federal Department of Justice under the Access to Information Act reveal that at least 146 Canadians were charged with child sex offences overseas from 1993-2007. The data is based on requests for consular support. This figure does not include the likely much larger number of Canadians who engage in such conduct without being detected, or who evade charges by bribing local officials.
Foreign governments and non-governmental organizations alike have brought suspected cases to the attention of Canadian authorities, where charges were not possible in the territory where the allegations originated for a variety of reasons. However, to date, those referrals have not resulted in any noticeable prosecutorial activity.
Impact of Child Sex Tourism
Foreign child sex offenders who pay to abuse children in developing countries disproportionately drive the demand for human trafficking. They generally pay significantly more than local men to sexually exploit children. As a result, certain known sex venues overseas cater almost exclusively to Western tourists and businessmen.
The sexual exploitation of children and young women overseas results in severe psychological and physical harm to victims. Rates of HIV/AIDs and sexually transmitted diseases are much higher among these individuals than the general population. Often, they are threatened, beaten and raped to ensure their compliance.
Sex tourism also depends on the complicity of local authorities, which is frequently secured through corruption and bribery – undermining democratic institutions that are often in their infancy. Organized crime also frequently profits from the buying and selling of children and young women overseas for the sex trade.
As a result of these harms, child sexual exploitation by foreigners is a serious transnational crime and fundamental affront to human rights. It calls out for an international response. Canada must do its part.
Validity of Canada’s Extraterritorial Law
Some defence lawyers have commented in the media that Canada’s extraterritorial child sex offender law may be vulnerable to a constitutional challenge. They question the jurisdiction of Canadian criminal law to apply extraterritorially to offences involving child sexual exploitation. Such a challenge should fail.
In 1996, a federal Department of Justice official appearing before the Standing Committee of Justice and Legal Affairs stated that commercial child sex tourism is an international crime of universal jurisdiction. As a result, Canada would be fully entitled under international law to prosecute its nationals for that crime wherever it took place.
The validity of Canada’s extraterritorial child sex tourism legislation has only grown stronger with the passage of time.
By 2000, approximately twenty-three countries had adopted extraterritorial child sex offender laws. Today, the number of countries that have done so has doubled to approximately fifty. Prosecutions under those laws for both commercial and non-commercial child sexual exploitation continue to grow.
To date, 191 countries have ratified the U.N. Convention on the Rights of the Child, committing to take action to protect children from all forms of sexual exploitation. This international treaty is just one of several statements by the international community that child sexual exploitation is universally condemned.
A detailed analysis of this evidence of the state of customary international law on extraterritorial criminal responsibility for child sex offences is currently underway at the University of British Columbia. The findings of the UBC Human Trafficking Working Group will be released within the year.
Towards Active Enforcement
Research shows that general deterrence in criminal law is largely driven by the extent to which a given law is enforced. The likelihood of being charged deters would-be offenders.
Unfortunately, because Canada’s approach to enforcing its extraterritorial child sex offender law has been passive, it is likely not deterring child sex offenders from travelling overseas to seek out victims.
Donald Bakker, the only individual convicted to date under our law, was initially being investigated for abusing prostitutes in the Vancouver area. It was by chance that a police search discovered evidence of his abuse of children overseas and led to charges for those allegations.
Similarly, charges laid in February against Armand Huard and Denis Rochefort of Quebec City under our extraterritorial child sex offender law only took place after the Government of Haiti contacted United Nations officials about allegations that the aid workers were sexually abusing orphans. It was only at that point that the RCMP and Sûreté du Québec got involved.
Unlike Australia and the United States which actively employ liaison officers in child sex tourism hotspots to facilitate investigations and cooperate with local authorities, Canada’s RCMP liaison officer program does not appear to have a pro-active mandate to enforce our extraterritorial child sex offender law. That needs to change, beginning with a focus on Southeast Asia.
Committing to Combat Child Sex Exploitation Abroad
As Canadians, we view ourselves as good global citizens. Unfortunately, at the moment we are contributing more to the global problem of child sexual exploitation than we are to the solution. We need to start with addressing the serious harm that some Canadians are causing by sexually exploiting children in developing countries.
Our extraterritorial child sex offender law is sound under international law. Prosecutors should not hesitate to lay charges where sufficient evidence exists. What is needed is a deliberate policy-shift towards actively enforcing this law, together with a commitment of law enforcement resources to make that a reality.
Benjamin Perrin is assistant professor at the UBC’s faculty of law and is a faculty associate at the Liu Institute for Global Issues. He is a member of the Law Society of Upper Canada and founder of The Future Group, a non-governmental organization that combats human trafficking and child sex tourism.
Note: This article originally appeared in the April 11, 2008 issue of The Lawyers Weekly published by LexisNexis canada Inc.
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