Human Trafficking refers to a set of offences relating to the transporting, recruiting, etc. of a person for the purpose of exploiting their labour or services. It covers everything from simple "pimping" to cross-border slave labour.

What is Human Trafficking

The Criminal Code has a number of offences in relation to human trafficking.

Trafficking in Persons

Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person for the purpose of exploiting them or facilitating their exploitation is guilty of indictable offence.

Material Benefit from Trafficking

Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the Trafficking of persons is guilty of an offence.

Withhold or Destroying Documents

Every person who, for the purpose of committing or facilitating the trafficking of persons, conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person's identity or immigration status"”whether or not the document is of Canadian origin or is authentic"”is guilty of an offence.

Under 18

Each of the above offences has a more severe counterpart dealing with the trafficking of persons under 18.

Secondary Offences

The offence of Trafficking in Persons carries more severe penalties where the offender kidnaps, commits an aggravated assault or aggravated sexual assault against, or cause death to the victim during the commission of the offence.

Exploitation

Under s. 297.04 of the Criminal Code a person exploits another person if they cause them to provide (or offer to provide) labour or services by engaging in conduct that, could reasonably be expected to cause the other person to believe that their safety (physical or psychological) 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.

What are the Potential Sanctions for Human Trafficking

The potential sanctions for human trafficking offences vary significantly depending on the specific charge and whether that charge involves secondary offences or a person under the age of 18.

On the low end, certain offences, such as Withhold or Destroying Documents "“ Trafficking, can be prosecuted by summary election or by indictment. If prosecuted summarily, per s. 787 (1) of the Criminal Code, the maximum punishment is 2 years less a day imprisonment and/or a fine of up to $5,000. If prosecuted by indictment, the maximum penalty is 5 years imprisonment.

Other human trafficking offences can only be prosecuted by indictment.

On the high end, Trafficking in a Person Under 18 (Accompanied by a Secondary Offence) carries a maximum sentence of life.

Certain trafficking offences are also subject to mandatory minimums. Some of these have been found to be unconstitutional (see e.g. R v Webber, 2019 NSSC 265), while others remain in effect. A criminal lawyer will be able to walk you through which potential sentences apply to your situation.

What Defences are Available for Human Trafficking Offences

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes some defences that may be available in a Human Trafficking:

Factual Innocence: If the Crown [prosecution] is unable to prove the essential elements of your charge beyond a reasonable doubt, they will have failed to discharge their burden. The specific elements the Crown has to prove will vary depending on the offence you are charged with.

If, for example, you are charged with Trafficking in Persons (without any of the aggravating criteria), the Crown must prove:

• the identity of the offender;
• the date and time of the incident and jurisdiction;
• That the accused;
  1. Recruited a person;
  2. Transported a person;
  3. Transferred a person;
  4.  Received a person;
  5.  Held a person;
  6.  Concealed or harboured a person; or
  7. exercised control, direction or influence over the movements of a person;
• That this influence over movement, etc. was for the purpose of exploiting them or facilitating their exploitation, where exploitation is defined as either:
  1. Causing the victim to provide or offer to provide labour or services when the victim could reasonably be expected to believe that their safety (physical or psychological) 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; or
  2. Causing the victim to have organ or tissue removed by using deception, force, threats, or of any other form of coercion.

Duress: The defence of duress may be invoked when someone commits an offence under compulsion by threats of death or bodily harm. For this defence to apply, the threat and crime must be closely connected in time, and the accused must have no safe avenue of escape.

Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:

• the right against unreasonable search and seizure;
• the right to not be arbitrarily detained;
• the right to be informed promptly of the reasons for arrest;
• the right to retain and instruct counsel without delay; and
• the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

Withdrawal of Charge(s): The Crown may decide to withdraw a defendant's charge(s) where:

• The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
• It is not in the public interest to prosecute.

Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks. There are two types of stays of proceedings, a judicial stay and crown stay of proceedings. A judicial stay is a rarely granted remedy which permanently ends a prosecution (see e.g. Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para 83). The Crown may also choice to stay a proceeding. The difference between a Crown stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.

Diversion: Diversion (often referred to as "Direct Accountability" or "DAP" ) is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the defendant, including but not limited to:

• A written apology letter;
• Charitable donation(s);
• Community service/volunteer hours;
• Counselling and/or programming; and
• Restitution/compensation.

Next Steps

The information above provides a general overview of human trafficking charges. However, no two cases are alike. Every case is fact-specific and ranges in complexity, depending on the issues at play.

Are you charged with a human trafficking offence? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.