Mr. Chair and members of the Standing Committee on Foreign Affairs and International Development, it is an honour and a privilege to appear before you today as part of a panel of witnesses in view of the consideration of Bill S-223, an act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs). Thank you for inviting me to appear before you today.

I'm an associate professor at the Faculty of Law at Université de Montréal, where I hold the Canada research chair on human rights and international reparative justice. My areas of teaching and research are international criminal law and human rights.

I will focus my remarks today on legal questions and more precisely on international law frameworks relating to the trafficking in human organs.

My opening statement will be in English, but I will be pleased to answer questions in both languages.

As for the context, as noted by various international reports, the commercial trade in human organs has developed into a global concern. Human organ trafficking causes grave human rights violations. It often involves transnational criminal activities committed by an organized complex network of criminal groups. Trafficking in human organs has become a highly profitable industry and, according to the United Nations Office on Drugs and Crime, organ trafficking remains among the most difficult crimes to detect.

The trafficking of human organs often involves the trafficking of human beings for the purpose of harvesting their organs. The United Nations Office on Drugs and Crime has recently deemed human trafficking for the purpose of organ removal one of the fastest-growing forms of human trafficking.

The flagship 2020 “Global Report on Trafficking Persons” indicated increasing reported cases of trafficking for the purpose of organ removal. Very recently, the United Nations Office on Drugs and Crime launched the toolkit on the investigation and prosecution of trafficking persons for organ removal.

Turning to the international legal framework of trafficking human organs, in considering the global impact of trafficking organs, there have been several initiatives under international law to combat organ trafficking. I will briefly review the most relevant ones.

The first is the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime”, also known as the Palermo protocol, with a September 29, 2003, entry into force.

Trafficking in persons for the purpose of organ removal is clearly defined in the Palermo protocol. Article 3a states:

Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons...for the purpose of exploitation. ...Exploitation shall include, at a minimum, the exploitation of the prostitution of others [and] other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

Canada ratified this protocol in May 2020. It is the first binding instrument under international law that defines trafficking of human beings and includes trafficking in persons for the purpose of removing organs. Canada changed its laws after the ratification of the protocol, a point to which I will refer later in my presentation.

Adopted in 2008, the “Declaration of Istanbul on Organ Trafficking and Transplant Tourism” is not a legally binding instrument under international law, but it does, however, provide some guidelines to states concerning organ transplantation. In 2010, the Declaration of Istanbul Custodian Group was formed, with the task of overseeing the dissemination of the declaration.

The preamble of the declaration refers to “exploitative practices that have harmed poor and powerless persons around the world”. The declaration has been endorsed by various national and international medical societies, including from within Canada.

I now turn to the World Health Organization's “Guiding Principles on Human Cell Tissue and Organ Transplantation”, the WHO guiding principles. The WHO has expressed concern with the commercialization of organs and adopted 11 guiding principles concerning transplantation programs. They aim to provide “an orderly, ethical and acceptable framework for the acquisition and transplantation of human...organs”. The guiding principles mention “informed” consent and the “prohibition“ of monetary payment.

There also have been United Nations General Assembly resolutions that have referred to trafficking in organs.

UN resolution 71-322 is entitled “Strengthening and promoting effective measures and international cooperation on organ donation and transplantation to prevent and combat trafficking in persons for the purpose of organ removal and trafficking in human organs”. Dated September 8, 2017, it “Urges Member States to prevent and combat trafficking in persons for the purpose of organ removal”. It further urges member states to consider adopting “Strengthening legislative frameworks, including by reviewing, developing or amending them, as appropriate, to prevent and combat trafficking in persons for the purpose of organ removal” and “Adopting appropriate legislative measures necessary to guarantee that the donation of organs is guided by clinical criteria and ethical norms”.

In the interest of time, I will move on to the Council of Europe Convention against Trafficking in Human Organs, which was entered into force on March 1, 2018. It is the first international legally binding instrument that is specifically dedicated to trafficking in human organs. As of this date, it has received 14 ratifications. The treaty is open to Canada for ratification, which has not yet occurred.

As per article 1, the purposes of the convention are as follows:

(a) to prevent and combat the trafficking in human organs by providing for the criminalisation of certain acts;

(b) to protect the rights of victims of the offences established in accordance with this Convention;

(c) to facilitate co-operation at national and international levels on action against the trafficking in human organs.

Within the legal framework in Canada, the Criminal Code criminalizes trafficking in persons and trafficking in persons for the purpose of organ removal—

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