Human Trafficking Defence Lawyers in Toronto

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HUMAN TRAFFICKING DEFENCE LAWYERS IN TORONTO

Human Trafficking has been defined by Public Safety Canada as “the recruitment, transportation, harbouring and/or exercising control, direction or influence over the movements of a person in order to exploit that person, typically through sexual exploitation or forced labour. It is often described as a modern form of slavery.” Several sections of the Criminal Code are used to target and prosecute human trafficking. In addition, the government of Canada has enacted the Immigration and Refugee Protection Act of 2001 which is a piece of legislation with sections that specifically target human trafficking.

There are several sections of the Criminal Code that are utilized by prosecutor’s in Canada to target human trafficking offences. Offences including trafficking in persons, kidnapping and forcible confinement, intimidation and conspiracy are all used to prosecute those engaged in human trafficking activities.

Section 279.01(1) is the primary section of the Criminal Code dealing with human trafficking. The section states that every individual who receives, holds, recruits, transports, transfers, harbours, conceals, exercises control over, directs or influences the movements of another person for the purposes of exploiting them or facilitating their exploitation is guilty of an indictable offence.

In situations where the defendant has committed an aggravated assault, an aggravated sexual assault, or caused the death of their victim, during the commission of the offence, they will be liable to serve a minimum of five years imprisonment and a maximum of life imprisonment. In all other cases a defendant who is convicted will be liable to serve a maximum term of fourteen years’ imprisonment and a minimum of four years’ imprisonment. It is also important to note that consent from the victim to any of the above listed activities will not be considered valid.

Frequently Asked Questions

Human Trafficking and the Criminal Code
Other Criminal Code Offences used to Target Human Trafficking Activities
-Withholding or Destroying Documents
-Kidnapping and Forcible Confinement
-Exploitation
-Intimidation
-Conspiracy
The Immigration and Refugee Protection Act 2001
What is the Punishment for Contravention of the Immigration and Refugee Protection Act section 117(1)?
-Fewer than Fifty Victims
-More than Fifty Victims
How does the Crown Prove a Trafficking in Persons Charge?

Human Trafficking and the Criminal Code

Trafficking in Persons Under the Age of Eighteen

Section 279.011(1) of the Criminal Code, states that every individual who receives, holds, recruits, transports, transfers, harbours, conceals, exercises control over, directs or influences the movements of another person for the purposes of exploiting them or facilitating their exploitation is guilty of an indictable offence. In cases where the defendant kidnaps, commits an aggravated assault, aggravated sexual assault, or causes the death of the victim in the commission of the offence, they are liable to a maximum of life imprisonment and a minimum of six years’ imprisonment. In all other cases a defendant who is convicted will be liable for a maximum of fourteen years’ imprisonment and a minimum of five years’ imprisonment. It is also important to note that consent from the victim to any of the above listed activities will not be considered valid.

Other Criminal Code Offences used to Target Human Trafficking Activities

Material Benefit

Section 279.02(2) of the Criminal Code states that every person who receives financial or other material benefit with knowledge that it was obtained by or derived from, either directly or indirectly, from the commission of a human trafficking offence (s. 279.01(1)) is guilty of an indictable offence. A defendant who is convicted will be liable for a maximum of ten years’ imprisonment. In cases where the victim is under the age of eighteen, a defendant who is convicted will be guilty of an indictable offence and liable for a maximum of fourteen years’ imprisonment and a minimum of two years’ imprisonment.

Withholding or Destroying Documents

Section 179.03(1) of the Criminal Code states that an individual who, for the purpose of committing or facilitating a human trafficking crime (s. 279.01(1)), removes, withholds, conceals or destroys another individual’s travel documents or any other documentation that establishes or purports to establish that individual’s immigration status is guilty of an indictable offence. The document in question can be a Canadian issued document or a document issued outside of Canada. A defendant who is convicted will be liable for a maximum of five years’ imprisonment. In cases where the victim was under the age of eighteen, the defendant will be liable to a maximum of ten years’ imprisonment and a minimum of one year imprisonment.

Kidnapping and Forcible Confinement

Section 279(1) of the Criminal Code outlines the offence of kidnapping. The Code states that every person who kidnaps another person with the intent to confine the person against the persons will, to cause the person to be unlawfully transported outside of Canada against the persons will or to hold the person for ransom or to service against the persons will is guilty of an offence. This section of the Criminal Code specifically mentions transporting an individual outside of Canada and is often used to prosecute human trafficking offences. An individual who is found guilty of kidnapping involving a restricted firearm or involving a criminal organization is guilty of an indictable offence and is liable to a term of life imprisonment with a minimum of five years’ imprisonment on the first offence and seven years’ for second or subsequent offences. In cases involving a non-restricted firearm the guilty party will be liable to a term of life imprisonment with a minimum of four years’ imprisonment. In cases involving a victim under the age of 16, unless the defendant was a parent or someone else with legal guardianship over the child, the guilty party will be liable to a term of life imprisonment with a minimum term of five years’ imprisonment. In any other case, the maximum term of imprisonment is life.

Section 279(2) of the Criminal Code outlines the offence of Forcible Confinement. The Code states that every person who without lawful authority, confines, forcibly seizes or imprisons another person, is guilty of a hybrid offence. If the Crown elects to proceed summarily the guilty party will be liable for a maximum of eighteen months imprisonment. Should the Crown elect to proceed by indictment, the guilty party will be liable to a maximum of ten years’ imprisonment.

It is important to note that section 279(3) stipulates that an accused cannot use the fact that the victim did not resist as a defence to either of these criminal offences. A victims failure to resist will not be evidence of innocence of the accused unless the defence can prove that the failure to resist was not prompted by duress, fear, intimidation, threats or use of force.

Exploitation

Section 279.04(1) of the Criminal Code states that for the purposes of sections 279.01 (human trafficking) and 279.03 (withholding or destroying travel documents) of the Code, a person exploits another person if they cause them to provide, or offer to provide labour or any other service by engaging in conduct that, considering all of the circumstances, would be expected to cause the other individual to believe that their safety or the safety of another person known to them would be jeopardized if the victim failed to provide or offer to provide the service. When determining whether or not an individual has been exploited, the court may consider the following factors; whether the defendant used or threatened to use force or another form of coercion, whether the defendant used deception, and whether the defendant abused a position of power, authority or trust.

Additionally, section 279.04(3) stipulates that for the purposes of sections 279.01 (human trafficking) and 279.03 (withholding or destroying travel documents) of the Criminal Code, an individual exploits another individual where they cause them by means of deception or the use of force or the use of the threat of force or any other form of coercion, to have an organ or tissue removed from their body.

Intimidation

Section 423 of the Criminal Code outlines the offence of intimidation. The Code stipulates that intimidation occurs whenever a person wrongfully and without lawful authority compels another person to abstain from doing anything that the person has the legal right to do or anything that the person has the legal right to abstain from doing. The accused will compel the person through violence or threats of violence to the person or their spouse, common-law partner or property, through intimidation or attempts to intimidate through threats of injury to the person or their relatives, either inside or outside of Canada, or to their personal property, by persistently following the person, by taking, hiding or depriving the person of the use of tools, clothes or other property belonging to the person or being used by the person, following the person in a disorderly manner with one or more persons on a highway, watching the residence or business of the person or blocking or obstructing a road or highway. This offence is relevant in human trafficking cases where the accused has compelled the victim to engage in involuntary physical or sexual labour or where they have stopped the victim from acting on their own will.

An accused who is found guilty of intimidation will be guilty of a hybrid offence. If the Crown elects to proceed summarily the accused will be liable for a maximum of 6 months’ imprisonment and/or a $5,000 fine. If the Crown elects to proceed by indictment the convicted party is liable for a maximum of five years’ imprisonment.

Conspiracy

Section 465 of the Criminal Code outlines the offence of Conspiracy. Specifically, section 465(1) subsections (c) and (d) are applicable to human trafficking. Subsection (c) states that every person who conspires with another person to commit an indictable offence (excluding murder or malicious prosecution which are outlined in subsections (a) and (b)) is liable to the same punishment as an accused who was found guilty of the offence the accused conspired to commit. This means if an accused conspired to commit kidnapping, they will be liable for the same punishment as an accused who actually committed a kidnapping. Additionally, subsection (d) states that every person who conspires with one or more persons to commit an offence punishable by summary conviction will be liable for the same penalty as an accused who committed the summary conviction offence. This means that if an accused conspired to commit the offence of intimidation and the Crown elected to proceed summarily, the accused would be liable for the same punishment as an individual who actually committed the summary offence. Section 465(3) also stipulates that an individual inside of Canada who conspires with someone outside of Canada will also be guilty of the offence of conspiracy in Canada.

The Immigration and Refugee Protection Act 2001

In addition to the Criminal Code, the Immigration and Refugee Protection Act of 2001 also contains provisions targeting human trafficking activities. Specifically, part 3 of the Act deals with trafficking in persons and related activities in several sections. Section 117(1), entitled Organizing Entry into Canada, states that any person who organizes, induces, aids or abets the entry into Canada of any person or persons knowing that, or being reckless as to whether, their entry into Canada will be in violation of the Immigration and Refugee Protection Act will be guilty of an offence.

What is the Punishment for Contravention of the Immigration and Refugee Protection Act section 117(1)?

As outlined in section 117(2), such a violation is an hybrid offence, meaning the Crown will elect how they wish to proceed with the matter. In cases with fewer than ten victims, if the Crown chooses to proceed by indictment, the maximum penalty for a first offence is a $500,000 fine and/or ten years’ imprisonment. For subsequent offences, the maximum penalty is a $1,000,000 fine and/or fourteen years’ imprisonment. If the Crown elects to proceed summarily, the maximum penalty upon conviction will be a $100,000 fine and/or two years’ imprisonment. Section 117(3) states that in cases involving more than ten victims, upon conviction, the defendant will be guilty of an indictable offence and liable to a maximum penalty of a $1,000,000 fine and/or life imprisonment.

Fewer than Fifty Victims

In cases where a defendant is convicted of trafficking in persons under section 117(2) or 117(3), where there are fewer than fifty victims involved, they will be liable, in addition to the maximum punishments prescribed in sections 117(2) and 117(3), to a minimum term of three years’ imprisonment if they, in committing the offence, endangered the life or safety of, caused bodily harm to, or caused the death of the victim or any other persons with respect to whom the offence was committed or the commission of the offence was for profit or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group. A defendant will be liable to a minimum term of five years’ imprisonment if the defendant, in committing the offence, endangered the life or safety of, caused bodily harm to, or caused the death of any other person with respect to whom the offence was committed and the commission of the offence was to create a profit for the defendant, or was for the benefit of, or at the direction of, or in association with a criminal organization or terrorist group.

More than Fifty Victims

In cases involving more than fifty victims, a defendant who is convicted of a human trafficking offence under section 117(3) will be liable, in addition to the maximum penalties prescribed in section 117(3), to a minimum punishment of five years’ imprisonment if, in committing the offence, they endangered the life of, caused bodily harm to, or caused the death of any person with respect to whom the offence was committed or when the commission of the offence was for profit or was for the benefit of, in association with or at the direction of any criminal organization or terrorist group. A defendant will be liable to a minimum term of ten years’ imprisonment if, in committing the offence, they endangered the life of, caused bodily harm to, or caused the death of any person with respect to whom the offence was committed and when the commission of the offence was for profit, or was for the benefit of, in association with or at the direction of any criminal organization or terrorist group.

How does the Crown Prove a Trafficking in Persons Charge?

As with any criminal charge, the burden of proof in a criminal trial is on the Crown to prove, beyond a reasonable doubt that the defendant is guilty as charged. To secure a conviction, the Crown must prove that the accused had a subjective intention to exploit or traffic the victim. This means the accused must have known what he or she was doing and must have intended to do so. In addition to the subjective intentions of the accused, the Crown must also prove that the accused did in fact exploit the victim in the case as prohibited by section 279.01(1) of the Criminal Code.

416-DEFENCE | 416-333-3623

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