Trafficking in Persons (Offence)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95143)
Trafficking in Persons
s. 279.01(2), 279.02(2), 279.011(2), s. 279.01(1) and 279.011(1) of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum 5 years incarceration (under 18)
6 years incarceration (under 18 with harm)
Maximum 5, 10, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to trafficking in persons are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)		 Preliminary Inquiry
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence],
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors],
279.02(2) [material benefit from trafficking, under 18],
279.03(1) [Withholding or destroying docs], and
279.03(2) [Withholding or destroying docs, under 18]		 Indictable Offence(s) N/A
s. 279.02(1) [material benefit from trafficking],
279.03(1) [Withholding or destroying docs], and
279.03(2) [Withholding or destroying docs, under 18]		 Hybrid Offence(s) N/A

Offences under s. 279.01 [trafficking in persons – general], 279.011 [trafficking in persons, under 18 – general], 279.02 , and 279.03 are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
a Judge or Justice
on a Release Order
s. 515 to 519		 Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence],
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors],
s. 279.02(2) [material benefit from trafficking, under 18],
s. 279.03(2) [Withholding or destroying docs, under 18]
s. 279.02(1) [material benefit from trafficking],
s. 279.03(1) [Withholding or destroying docs]

When charged under s. 279.01(2) , 279.02(2) [material benefit from trafficking, under 18], 279.011(2) [trafficking in persons, under 18 – Consent], s. 279.01(1) [trafficking in persons – general] and 279.011(1) [trafficking in persons, under 18 – general], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 279.02(1) [material benefit from trafficking], 279.03(1) [Withholding or destroying docs] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 279.01 [trafficking in persons – general], 279.011 [trafficking in persons, under 18 – general], 279.02 , and 279.03 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence],
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors],
s. 279.02(2) [material benefit from trafficking, under 18],
s. 279.03(2) [Withholding or destroying docs, under 18]
s. 279.02(1) [material benefit from trafficking] and
s. 279.03(1) [Withholding or destroying docs]

Offences under s. 279.01 [trafficking in persons – general], 279.011 [trafficking in persons, under 18 – general], 279.02 , and 279.03 are designated offences eligible for wiretap under s. 183.

Offences under s. 279.01, 279.011, 279.02, and 279.03 are "designated" offences under s. 752 for dangerous offender applications.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Trafficking in Persons

Trafficking in persons

279.01 (1) 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 an indictable offence and liable

(a) 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
(b) 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.
Consent

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) [trafficking in persons] is valid.

Presumption

(3) For the purposes of subsections (1) [trafficking in persons] and 279.011(1) [trafficking in persons, under 18], evidence that a person who is not exploited lives with or is habitually in the company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation.

2005, c. 43, s. 3; 2014, c. 25, s. 18; 2015, c. 16, s. 1.

– CCC (CanLII), (DOJ)

Note up: 279.01(1), (2) and (3)

Trafficking in Young Persons

Trafficking of a person under the age of eighteen years

279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable

(a) 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
(b) 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.
Consent

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) [trafficking in persons, under 18] is valid.
2010, c. 3, s. 2.

– CCC (CanLII), (DOJ)

Note up: 279.011(1) and (2)

Material Benefit

Material benefit — trafficking

279.02 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1) [trafficking in persons], is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.
Material benefit — trafficking of person under 18 years

(2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.011(1) [trafficking in persons, under 18], is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.

2005, c. 43, s. 3; 2010, c. 3, s. 3; 2014, c. 25, s. 19; 2019, c. 25, s. 104.

– CCC (CanLII), (DOJ)

Note up: 279.02(1) and (2)

Withholding or Destroying Documents

Withholding or destroying documents — trafficking

279.03 (1) Every person who, for the purpose of committing or facilitating an offence under subsection 279.01(1) [trafficking in 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

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
Withholding or destroying documents — trafficking of person under 18 years

(2) Everyone who, for the purpose of committing or facilitating an offence under subsection 279.011(1) [trafficking in persons, under 18], 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 indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year.

2005, c. 43, s. 3; 2010, c. 3, s. 3; 2014, c. 25, s. 19; 2019, c. 25, s. 105.

– CCC (CanLII), (DOJ)

Note up: 279.03(1) and (2)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
279.01(1) trafficking persons (recruiting) "..., did recruit, transport, transfer, receive, hold, conceal or harbour a person [name1], for the purpose of exploiting them or facilitating their exploitation contrary to section 279.01(1) of the Criminal Code.
279.01(1) trafficking persons (exercise control) "..., did exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation contrary to section 279.01(1) of the Criminal Code.
279.011 recruit – persons under 18 "..., did recruit, transport, transfer, receive, hold, conceal or harbour [name1], a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation of [name1], to wit: [conduct], contrary to section 279.011 of the Criminal Code.
279.011 exercise control – persons under 18 "..., did exercise control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation of [name1], to wit: [conduct], contrary to section 279.011 of the Criminal Code.
279.02(2) receiving a material benefit from trafficking in persons "..., did receive a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1) [trafficking in persons], to wit: [conduct], contrary to section 279.02(1) of the Criminal Code.
279.02(2) receiving a material benefit from trafficking in persons (under 18) "..., did receive a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1) [trafficking in persons], to wit: [conduct], contrary to section 279.02(2) of the Criminal Code.
279.03(1) Withholding or destroying documents — trafficking "..., for the purpose of committing or facilitating an offence under subsection 279.01(1) (trafficking in persons), conceals, removes, withholds or destroys any travel document that belongs to [name1] or any document that establishes or purports to establish identity or immigration status of [name1], to wit: [conduct], contrary to section 279.03(1) of the Criminal Code.
279.03(2) Withholding or destroying documents — trafficking of person under 18 years "..., for the purpose of committing or facilitating an offence under subsection 279.011(1) (trafficking in persons, under 18), conceals, removes, withholds or destroys any travel document that belongs to [name1] or any document that establishes or purports to establish another person’s identity or immigration status [name1], to wit: [conduct], contrary to section 279.03(2) of the Criminal Code.

Proof of the Offence

Proving trafficking in persons under s. 279.01(1)(b) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit either:
    1. ☐ recruits a person,
    2. ☐ transports a person,
    3. ☐ transfers a person,
    4. ☐ holds a person,
    5. ☐ conceals a person,
    6. ☐ harbours a person; or
    7. ☐ exercises control, direction or influence over the movements of a person,
  5. the act is done "for the purpose of exploiting them or facilitating their exploitation"
    1. ☐ the culprit caused the victim to provide or offer to provide a labour or service
    2. ☐ the victim could reasonably be expected to believe that their safety 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.

Proving aggravated trafficking under s. 279.01(1)(a) should include:

  1. the underlying elements of s. 279.01;
  2. the culprit either:
    1. ☐ kidnaps the victim,
    2. ☐ commits an aggravated assault or aggravated sexual assault against the victim, or
    3. ☐ cause death to, the victim
  3. ☐the act occurs during the commission of the trafficking offence.


Proving Trafficking in Young Persons under s. 279.011(1)(b) should include:

  1. ☐ the underlying elements of s. 279.01;
  2. ☐ the victim was under the age of 18 at the time of the offence;
  3. ☐ the culprit knew, was reckless or willfully blind to that fact.

Proving aggravated trafficking in young persons under s. 279.011(1)(a) should include:

  1. ☐ the underlying elements of s. 279.01;
  2. ☐ the victim was under the age of 18 at the time of the offence;
  3. ☐ the culprit knew, was reckless or willfully blind to that fact.
  4. ☐ the culprit either:
    1. ☐ kidnaps the victim,
    2. ☐ commits an aggravated assault or aggravated sexual assault against the victim, or
    3. ☐ cause death to, the victim
  5. ☐ the act occurs during the commission of the trafficking offence.

Proving materially benefiting from trafficking under s. 279.02(1) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit receives a financial or other material benefit;
  5. ☐ the culprit knew that it results from the commission of an offence under s. 279.01(1) or 279.011(1).

Proving materially benefiting from trafficking a young person under s. 279.02(2) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit receives a financial or other material benefit;
  5. ☐ the culprit knew that it results from the commission of an offence under s. 279.01(1) or 279.011(1);
  6. ☐ the victim was under the age of 18 at the time of the offence; and
  7. ☐ the culprit knew, was reckless or willfully blind to that fact.

Proving withholding or destroying documents under s. 279.03(1) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit concealed, removed, withheld, or destroyed documents
  5. ☐ the documents belonged to a person other than the accused;
  6. ☐ the documents were travel documents or any document that establishes or purports to establish another person’s identity or immigration status;
  7. ☐ the act was for the purpose of committing or facilitating an offence under s. 279.01 or 279.011.

Proving withholding or destroying documents of a young person under s. 279.03(2) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit concealed, removed, withheld, or destroyed documents
  5. ☐ the documents belonged to a person other than the accused;
  6. ☐ the documents were travel documents or any document that establishes or purports to establish another person’s identity or immigration status;
  7. ☐ the act was for the purpose of committing or facilitating an offence under s. 279.01 or 279.011;
  8. ☐ the victim was under the age of 18 at the time of the offence; and
  9. ☐ the culprit knew, was reckless or willfully blind to that fact.

Interpretation of the Offence

The human trafficking provisions were implemented as part of Canada ratification of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.[1]

The offence of human trafficking is to be distinguished from the offence of human smuggling. The former requires a type of exploitation of the victim to compel them to participate, while the latter involves the willing participation of the person being smuggled.[2]

Section 279.011 was found to be constitutional. [3]

  1. ↑ R v Moazami, 2014 BCSC 1727 (CanLII), per Bruce J, at para 373
  2. ↑ R v Ng, 2006 BCPC 111 (CanLII), 140 CRR (2d) 224, per MacLean J, at paras 3 to 12 - in context of human trafficking under IRPA
  3. ↑ R v Stone, 2013 ONSC 653 (CanLII), 276 CRR (2d) 26, per Miller J

Recruits, transports, transfers, receives, holds, conceals or harbours a person

"Harbours" is also found in the offence of Abduction of a Young Person (Offence).

"Control, Direction or Influence" Over Movement

See also: Procuring and Living on the Avails of Prostitution (Repealed Offence)#Control or Influence

This language is the same as found in s. 212(1)(h) for exercising control over a prostitute.[1]

Control

"Control" is said to refer to "invasive behaviour, to ascendancy which leaves little choice to the person controlled."[2]

The word "control" is not to be interpreted in an "overly narrow" manner.[3] It is not limited to "complete physical control" over a person and can include psychological coercion. [4]

Direction

"Direction" over the movements of a person exists where "rules or behaviours are imposed."[5] This does not exclude persons who are given "certain latitude or margin for initiative."[6]

Influence

Influence includes any action exercised over a person with a view to aiding, abetting, or compelling that person to act in a certain manner.[7] It requires a "ability through position or power to bring about a particular result or effect."[8]

"Influence" includes less restrictive actions from "direction" or "control."[9]

Influence will be made out where the accused uses physical, psychological, sexual, or material means to give a reasonable person the impression that non-compliance will put their safety in danger.[10]

  1. ↑ see Procuring and Living on the Avails of Prostitution (Repealed Offence)
  2. ↑ R v RJG, 2001 CanLII 369 (SK PC), 202 Sask R 230, per Kolenick J, at para 46
  3. ↑ R v Wilson, 2022 ONCA 857 (CanLII), per Roberts JA, at para 27
  4. ↑ Wilson, ibid. (control “does not necessarily mean complete physical control over or the absence of any choice by the complainant”)
    R v Chahinian, 2022 QCCA 499 (CanLII), per Cournoyer JA, at para 74
  5. ↑ R v Perreault, 1996 CanLII 5641 (QC CA), 113 CCC (3d) 573, per curiam, at pp. 575, 576
    RJG, supra, at para 46
  6. ↑ Perreault, supra, at pp. 575-576br> RJG, supra, at para 46
  7. ↑ R v Ng, 2007 BCPC 204 (CanLII), per MacLean J
    Perreault, supra, at p. 575-576 ("Any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence")
    R v Rodney, 1999 ABPC 12 (CanLII), 241 AR 318, per Fradsham J
  8. ↑ Rodney, ibid., at para 34
  9. ↑ Perreault, supra, at p. 575-576
  10. ↑ R v Urizar, 2013 QCCA 46 (CanLII), 99 CR (6th) 370, per curiam

Exploitation

Language defining exploitation comes from the definition of Criminal Harassment (Offence).

Exploitation

279.04 (1) For the purposes of sections 279.01 to 279.03 [trafficking in persons offences], a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety 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.

Factors

(2) In determining whether an accused exploits another person under subsection (1) [trafficking in persons – exploitation definition], the Court may consider, among other factors, whether the accused

(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority.
Organ or tissue removal

(3) For the purposes of sections 279.01 to 279.03 [trafficking in persons offences], a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.
2005, c. 43, s. 3; 2012, c. 15, s. 2.

– CCC (CanLII), (DOJ)

Note up: 279.04(1), (2) and (3)

Section 279.04 was amended on June 28, 2012 in order to clarify the factors for determining whether there is exploitation, and to include the factor of emotional and psychological harm.[1]

Threatened Safety

"Safety" can include physical, mental, psychological, or emotional safety.[2]

"Reasonable belief"

A reasonable belief "requires an objective foundation, based on a reasonable person's view."[3] Age, gender and personal circumstances are also taken into account.[4]

  1. ↑ R v Moazami, 2014 BCSC 1727 (CanLII), per Bruce J, at para 375
    R v Stone and Beford, 2013 ONSC 653 (CanLII), 276 CRR (2d) 26, per Miller J, at para 18
  2. ↑ R v Ryback, 1996 CanLII 1833 (BCCA), 105 CCC (3d) 240, per Finch JA, at para 37
    R v Sillipp, 1995 CanLII 5591 (AB QB), 99 CCC (3d) 394, per Murray J - context of criminal harassment
    R v Goodwin, 1997 CanLII 3717 (BCCA), per Donald J, at para 17
  3. ↑ Sillipp, supra
  4. ↑ Sillipp, supra

Material Benefit

The term "financial or other material benefit" is also found in s. 467.1 of the Code concerning "criminal organizations".

Whether something is of material benefit will "depend on the facts of the particular case."[1]

  1. ↑ R v Lindsay, 2004 CanLII 16094 (ONSC), 182 CCC (3d) 301, per Fuerst J

Evidence

Holdback of Disclosure

For offences under this section (s. 279.01, 279.011, 279.02, or 279.03), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

Jurisdiction

Section 7(4.11) provides jurisdiction to Canadian Courts for offences of human trafficking that occur outside of Canada by persons who are citizens or permanent residents of Canada.[1]

  1. ↑ See Extra-Territorial Jurisdiction of the Courts#Human Trafficking

Misc Definitions

"Victim" is defined in s. 2.

Section 118 of the Immigration and Refugee Protection Act, SC 2001, c 27 has a similar scope as human trafficking.

Trafficking in Persons (s. 279.01) and Trafficking in Persons (s. 279.011) under the Age of 18 are both wiretap eligible offences under s. 184.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Complainant Privacy Rights in Sexual Offences

A complainant has a right to be notified of any party seeking to admit any evidence of sexual activity other than the activity making up the alleged offence. The application of these rights depends on the facts of the case. It must be an offence that "has some connection" to one or more of the s. 276 enumerated offences.[1]

It can apply to human trafficking cases in some circumstances.[2]

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of Agreement
s. 606(4.1) [SPIO]		 Victim Queried
for Interest in Agreement
s. 606(4.2) [5+ years]		 Victim Notice
for Restitution
s. 737.1		 Victim Notice
of Impact Statement
s. 722(2)
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence],
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors],
s. 279.02(2) [material benefit from trafficking, under 18],
s. 279.03(2) [Withholding or destroying docs, under 18]
s. 279.02(1) [material benefit from trafficking],
s. 279.03(1) [Withholding or destroying docs]

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 279.02 and 279.03), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election		 Maximum Penalty
s. 279.03(1) [Withholding or destroying docs] N/A 5 years incarceration
s. 279.02(1) [material benefit from trafficking] and
s. 279.03(2) [Withholding or destroying docs, under 18]		 N/A 10 years incarceration
s. 279.01(1)(b) [trafficking in persons – no aggravated factors],
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors], and
s. 279.02(2) [material benefit from trafficking, under 18]		 N/A 14 years incarceration
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence] and
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence]		 N/A life incarceration

Offences under s. 279.01(1)(a) and (b), 279.011(1)(a) and (b), 279.02(1) and (2), 279.03(1) and (2) are straight indictable. The maximum penalty is 5 years under s. 279.03(1), 10 years under s. 279.02(1) and 279.03(2), 14 years under s. 279.01(1)(b), 279.02(2), and 279.011(1)(b), or life under s. 279.01(1)(a) and 279.011(1)(a).

Minimum Penalties
Offence(s) Crown
Election		 Minimum Penalty
First Offence		 Minimum Penalty
Subsequent Offence
s. 279.01(1)(a) [trafficking in persons – aggravated by secondary offence] N/A 5 years incarceration Same
s. 279.01(1)(b) [trafficking in persons – no aggravated factors] N/A 4 years incarceration Same
s. 279.011(1)(a) [trafficking in persons, under 18 – aggravated by secondary offence] N/A 6 years incarceration Same
s. 279.011(1)(b) [trafficking in persons, under 18 – no aggravated factors] N/A 5 years incarceration Same
s. 279.02(2) [material benefit from trafficking, under 18] N/A 2 years incarceration Same
s. 279.03(2) [Withholding or destroying docs, under 18] N/A 1 year incarceration Same

For offences under 1 year incarceration under s. 279.03(2), 2 years incarceration under s. 279.02(2), 4 years incarceration under s. 279.01(1)(a), 5 years incarceration under s. 279.01(1)(a) and 279.011(1)(b), or 6 years incarceration under s. 279.011(1)(a) there is a mandatory minimum penalty of {{{2}}}.

For offences under s. 279.03(2) the minimum is 1 year, under s. 279.02(2) the minimum is 2 years, under s. 279.01(1)(a) the minimum is 4 years, under s. 279.01(1)(a) and 279.011(1)(b) the minimum is 5 years, or under s. 279.011(1)(a) the minimum is six years.

Offences under s. 279.02(1) and 279.03(1) have no mandatory minimum penalties.

Available Dispositions


For offences under s. 279.02(1) and 279.03(1), when prosecuted by summary conviction, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Offences under 279.02 are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

Offences under s. 279.01(1)(a) or (b), 279.011(1)(a) or (b), 279.02(2), and 279.03(2) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Constitutionality

There is some authority that the mandatory minimum sentence of 5 years in relation to trafficking a person under the age of 18 is cruel and unusual punishment contrary to s. 12 of the Charter.[3]

  1. ↑ R v Barton, 2019 SCC 33 (CanLII), per Moldaver J, at para 76 ("I am of the view that the s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) has some connection to the offence charged, even if no listed offence was particularized in the charging document. ")
  2. ↑ R v MD, 2020 ONSC 951 (CanLII), per Dennison J
    contra. R v Williams, 2020 ONSC 206 (CanLII), 64 CR (7th) 226, per Stribopoulos J
    contra. R v Williams, 2020 ONSC 6347 (CanLII), per Stribopoulos J
  3. ↑ R v Finestone, 2017 ONCJ 22 (CanLII), 375 CRR (2d) 311, per Greene J

Principles

The offence of trafficking in persons includes all forms of exploitative labour. Most typically it involves prostitution, child prostitution, and temporary foreign workers.

Where the victim has been held "as a virtual slave" or in humiliating and degrading conditions will be aggravating to sentence.[1]

Underage Victims

Capitalizing on the sexual services of children "is no less reprehensible than other forms of serious child abuse."[2]

Factors

Relevant factors to consider include:[3]

  1. The degree of coercion or control imposed by the pimp on the prostitute's activities;
  2. The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings;
  3. The age of the prostitutes and their numbers;
  4. Any special vulnerability on the part of the prostitutes;
  5. The working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting customers and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken;
  6. The degree of planning and sophistication, including whether the pimp was working in concert with others;
  7. The size of the pimp's operations, including the numbers of customers the prostitutes were expected to service;
  8. The duration of the pimp's exploitative conduct;
  9. The degree of violence, if any, apart from that inherent in the pimp's parasitic activities;
  10. The extent to which inducements such as drugs or alcohol were employed by the pimp;
  11. The effect on the prostitutes of the pimp's exploitation; and,
  12. The extent to which the pimp demanded or compelled sexual favours for himself from the … prostitutes.
  13. The age of the customers attracted to the bawdy-house operation;
  14. Steps taken by the accused to evade detection by authorities; and,
  15. Attempts by the accused to prevent a prostitute from leaving his employ.
  1. ↑ R v Orr, 2013 BCSC 1883 (CanLII), [2013] BCJ No. 2257, per Goepel J - crown failed to establish BARD of this aggravating factor for human trafficking offence under IRPA
  2. ↑ R v Tang, 1997 ABCA 174 (CanLII), [1997] AJ No 460, per curiam
    R v Duguay, 2009 ONCA 23 (CanLII), per curiam citing Tang
  3. ↑ Tang, supra
    R v Miller, [1997] O.J. No. 3911
    R v AE, 2018 ONSC 471 at para 56 to 57

Ranges

see also: Trafficking in Persons (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 279.01, 279.011, 279.02, or 279.03(1)
  • For convictions under s. 279.011 [trafficking persons under 18], 279.02(2) [benefits of trafficking persons under 18], and 279.03(2) [withholding/destroying documents of trafficking persons under 18], as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
  • For offences under s. 279.01, 279.02(1) and 279.03(1), as listed under s. 487.04(a.1) to (c.01), (c.03) or (d), a DNA Order is a presumptive mandatory order as a primary designated offence under s. 487.051(2), but the judge may exempt the offender if it is established that "the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders."
SOIRA Orders s. 279.01, 279.011, 279.02(1), (2), 279.03(1), (2)
  • On conviction under s. 279.011, a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]".
      • If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2))
      • Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))).
      • There is an option for early termination under s. 490.015 after 20 years.

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 279.02(2) or 279.03(2), a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]".
      • If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 279.01, listed as a "secondary offence" under s. 490.011(1)(a), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If the offender was subject to a SOIRA Order anytime prior to sentencing, the duration is life (s. 490.012(3))
      • Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))).
      • There is an option for early termination under s. 490.015 after 20 years.

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 279.02(1) or 279.03(1), listed as a "secondary offence" under s. 490.011(1)(a), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If the offender was subject to a SOIRA Order anytime prior to sentencing, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Weapons Prohibition Orders s. 279.01(1)(a) and (b), 279.011(1)(a) or (b), 279.02
  • mandatory under s. 109 for convictions under s. 279.01(1)(a) and (b), 279.011(1)(a) and (b)
  • Where there is a conviction under s. 279.02 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Section 161 Orders s. 279.011, 279.02(2) or 279.03(2)
  • if convicted under s. 279.011, 279.02(2) or 279.03(2), all relating to trafficking of persons under the age of 18, there is a discretionary order
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Victim Under 18

Convictions under s. 279.011 [trafficking — person under 18 years], 279.02(2) [material benefit — trafficking of person under 18 years], and 279.03(2) [withholding or destroying documents — trafficking of person under 18 years] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

Victim 18 Years or Older

Convictions under s. 279.01, 279.02(1), and 279.03(1) are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

Related Offences
References
v • e
 
Violent Offences
Offences
v • e
 
Sexual Offences
Offences
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