Human Trafficking Defence Lawyer in Toronto

What is Human Trafficking?

Human Trafficking, which is often referred to as “trafficking in persons”, can be summed up to a type of modern day slavery. It involves the recruitment, transportation, harbouring and/or exercising of control, direction or influence over the movements of a person in order to exploit that person, typically through sexual exploitation or forced labour. Under the Criminal Code, as well as the Immigration and Refugee Protection Act, human trafficking is considered to be a punishable offence.

Under section 279.01(1) of the Criminal Code, trafficking in persons is committed by those who recruit, transport, transfer, receive, hold, conceal or harbour a person, or exercise control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation. The individual would be guilty of an indictable offence and liable to imprisonment.

Similarly, under section 279.011(1) of the Criminal Code, everyone who recruits, transports, transfers, receives, holds, conceals, or harbours a person younger than 18 years old, or exercises control, direction or influence over the movements of a person younger than 18 years old, for the purpose of exploiting them or facilitating their exploitation, is guilty of human trafficking.

An individual who receives a financial or other material benefit knowing it is from trafficking in persons, is guilty of the offence of material benefit of trafficking pursuant to section 279.02(1) and (2) of the Criminal Code.

Related to trafficking in persons, is the offence of kidnapping. Under section 279(1) of the Criminal Code, every person commits an offence who kidnaps a person with the intent to cause the person to be confined or imprisoned, be unlawfully sent or transported out of Canada, or be held for ransom – all of which is against their will.

Other Consequences Associated with Human Trafficking

As noted above, the Immigration and Refugee Protection Act (IRPA) also includes human trafficking as a punishable offence, under section 117. It states that no person shall organize, induce, aid, or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be an offence under the IRPA. If there are fewer than 50 victims, the offender could be liable to a minimum punishment of three to five years in custody. This increases from to five to ten years in custody if there are more than 50 victims.

Section 117 of the Immigration and Refugee Protection Act was applied in United States v. Lee (2009), an extradition case with the American government, where the court gave a detailed explanation of the offence, stating: “[t]he operation involved transporting aliens and recruiting others to transport aliens from Toronto Airports to ‘safe houses’ located in Canada where the persons would stay for a limited period of time while awaiting instructions to be smuggled into the United States.” This was a clear example of organizing and aiding individuals to get into the country through improper means.

Common Defences to Human Trafficking

The Criminal Code first indicates under sections 279.01(2) and 279.011(2) that no consent to the activity forming the subject matter of a charge under human trafficking is valid. Meaning one cannot consent to be trafficked.

Case law, such as R. v. S.B.S. (2022), has established that in order to prove or establish grounds for a human trafficking conviction, “[t]he Crown must prove two essential elements to the reasonable doubt standard…a) that the accused exercised control, direction or influence over the movements of the victim, and b) that the purpose of which the accused exercised control, direction or influence was to exploit the victim” (at para 122). What this means is, the accused cannot be convicted if the Crown cannot provide their case. If the accused did not exercise control or influence over the victim or if the accused did not actually exploit the victim, an argument could be made for a not guilty verdict.

What are the Penalties for Human Trafficking?

Penalties related to human trafficking are outlined within the Criminal Code. For example, under section 279.01(1) – trafficking in persons – an offender could be found liable to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case.

The penalty is slightly different under section 279.011(1) – trafficking of a person under the age of eighteen years – being that an offender could be found liable to imprisonment for life and to a minimum punishment of imprisonment for a term of six years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case.

R. v. Gardner (2020), is a case dealing with an accused convicted of human trafficking, which explains why such sentences exist and are necessary. “The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The Criminal Code directs judges to craft sentences which achieve these goals by imposing just sanctions which have one or more of six objectives. Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender” (para 45).

Common types of Human Trafficking

Sex and labour trafficking are the two dominant forms of human trafficking in Canada. Labour trafficking involves the control and exploitation of an individual for their labour or service, which is usually taken by force, threats and/or deception – also called “forced labour”. For context, situations or environments involving labour exploitation typically consist of poor and unsafe working conditions, abuse, extremely long hours and unfair or non-existent wages. Labour trafficking involves recruiting, moving, or holding victims and pressuring them into doing any kind of laborious work – it should be noted that this can occur in all different types of industries. Forced labour can also be found in domestic servitude, such as working as a caregiver with unreasonable hours and unrelated duties.

Sex trafficking on the other hand can be somewhat more complex. Victims are usually lured in and groomed by individuals initially acting as their boyfriends or girlfriends, who then end up taking their money or forcing them to hand over what ever they have earned in relation to sex work. Sex trafficking can also affect anyone – men and women, at any time and any place. Violence and threats of violence are often used as a means of control to force trafficked persons to perform sexual services.

According to the RCMP, statistics show that the nature of sexual exploitation results in victims typically being forced to provide sexual services via massage parlours, escort agencies or adult entertainment ventures. Victims of forced labour, however, are often forced to provide services under circumstances that involve long hours of work for little or no pay and are usually encompassed in unsafe work locations.