Difference between revisions of "Victims of Human Trafficking (4:VIII)"

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Despite the severity of the offence, human trafficking convictions are rare.  This may be in part due to the complexity and subtleties of trafficking operations as well as reluctance on the part of victims to come forward.  Victims may not come forward because they may:
Despite the severity of the offence, human trafficking convictions are rare.  This may be in part due to the complexity and subtleties of trafficking operations as well as reluctance on the part of victims to come forward.  Victims may not come forward because they may:
*fear for their own lives
*fear for their own lives;
*not understand that they are victims of human trafficking;
*not understand that they are victims of human trafficking;
*be taught to distrust outsiders, especially law enforcement and other government authorities; Foreign victims may be afraid they will be detained and deported, or they may limited language skills;
*have been taught to distrust outsiders, especially law enforcement and other government authorities; be afraid they will be detained and deported;
*be completely unaware of their rights or may have been intentionally misinformed about their rights in Canada
*have limited language skills;
*be completely unaware of their rights or may have been intentionally misinformed about their rights in Canada;
*fear for their families and/or loved ones
*fear for their families and/or loved ones
*feel threatened that traffickers will harm their families if they report their situation to, or cooperate with, law enforcement. (See ''National Action Plan to Combat Human Trafficking'', Government of Canada, 2012).
*feel threatened that traffickers will harm their families if they report their situation to, or cooperate with, law enforcement. (See ''National Action Plan to Combat Human Trafficking'', Government of Canada, 2012).
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In order to determine whether an accused exploited another person, the court may consider whether the accused (a) used or threatened to use force or coercion; (b) used deception; or (c) abused a position of trust, power or authority (s 279.04(2)).
In order to determine whether an accused exploited another person, the court may consider whether the accused (a) used or threatened to use force or coercion; (b) used deception; or (c) abused a position of trust, power or authority (s 279.04(2)).


Because of the high stigma and severe penalties that result from a human trafficking conviction, the ''mens rea'' for the human trafficking offences is subjective fault.  Crown Counsel must prove that the accused acted “for the purpose” of exploiting the victim.  In [https://www.canlii.org/en/on/onsc/doc/2013/2013onsc653/2013onsc653.html?resultIndex=1 ''R v Stone and Bedford'', 2013 ONSC 653], Justice Miller confirms at paras. 38-40 that “for the purpose” of exploitation requires both intent and knowledge.  It is also important to note that consent is not a defence to human trafficking (s 279.01(2)).   
Because of the high stigma and severe penalties that result from a human trafficking conviction, the ''mens rea'' for the human trafficking offences is subjective fault.  Crown Counsel must prove that the accused acted “for the purpose” of exploiting the victim.  In [https://www.canlii.org/en/on/onsc/doc/2013/2013onsc653/2013onsc653.html?resultIndex=1 ''R v Beckford'', 2013 ONSC 653], Justice Miller confirms at paras. 38-40 that “for the purpose” of exploitation requires both intent and knowledge.  It is also important to note that consent is not a defence to human trafficking (s 279.01(2)).   


Part 3 of ''IRPA'' applies to smuggling and trafficking of persons from another country into Canada. Sections 117 and 118 make it an offence to:   
Part 3 of ''IRPA'' applies to smuggling and trafficking of persons from another country into Canada. Sections 117 and 118 make it an offence to:   
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The penalties for the offences in Part 3 of ''IRPA'' include fines of up to $1,000,000 and imprisonment of up to 14 years (where fewer than 10 persons are being smuggled or trafficked) or up to life.  Mandatory minimum sentences apply where the person, in committing the offence, endangered the life or safety, or caused bodily harm or death to the persons with respect to whom the offence was committed, and/or if the commission of the offence was for profit or in association with a criminal organization or terrorist group (See ''IRPA'' ss 117(2)-(3)).  
The penalties for the offences in Part 3 of ''IRPA'' include fines of up to $1,000,000 and imprisonment of up to 14 years (where fewer than 10 persons are being smuggled or trafficked) or up to life.  Mandatory minimum sentences apply where the person, in committing the offence, endangered the life or safety, or caused bodily harm or death to the persons with respect to whom the offence was committed, and/or if the commission of the offence was for profit or in association with a criminal organization or terrorist group (See ''IRPA'' ss 117(2)-(3)).  


==== BC’s First Human Trafficking Conviction under ''IRPA'' ====
==== a. BC’s First Human Trafficking Conviction under ''IRPA'' ====


[https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1883/2013bcsc1883.html?autocompleteStr=R%20v%20%20Orr%202013&autocompletePos=1 ''R v Orr'', 2013 BCSC 1883], was the first conviction for human trafficking under ''IRPA'' in Canada.  In that case, a jury found Mr. Orr guilty of the following:   
[https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1883/2013bcsc1883.html?autocompleteStr=R%20v%20%20Orr%202013&autocompletePos=1 ''R v Orr'', 2013 BCSC 1883], was the first conviction for human trafficking under ''IRPA'' in Canada.  In that case, a jury found Mr. Orr guilty of the following:   
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At trial, Mr. Orr received a global sentence of 18 months of jail.  In 2015, however, the case was successfully appealed.  In [https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca88/2015bcca88.html ''R v Orr'', 2015 BCCA 88], the Court of Appeal for British Columbia set the convictions aside and sent the matter back for trial.  The court found certain expert evidence should not have been admitted, as the expert’s qualifications were not properly tested.  A new trial was held in June 2016 ([https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2064/2016bcsc2064.html ''R v Orr'', 2016 BCSC 2064]).  He was ultimately acquitted for human trafficking and providing false information to the Consulate General of Canada but was convicted of employing an unauthorized foreign national.
At trial, Mr. Orr received a global sentence of 18 months of jail.  In 2015, however, the case was successfully appealed.  In [https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca88/2015bcca88.html ''R v Orr'', 2015 BCCA 88], the Court of Appeal for British Columbia set the convictions aside and sent the matter back for trial.  The court found certain expert evidence should not have been admitted, as the expert’s qualifications were not properly tested.  A new trial was held in June 2016 ([https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2064/2016bcsc2064.html ''R v Orr'', 2016 BCSC 2064]).  He was ultimately acquitted for human trafficking and providing false information to the Consulate General of Canada but was convicted of employing an unauthorized foreign national.


==== Bill C-36 and Human Trafficking ====
==== b. Bill C-36 and Human Trafficking ====


In 2014, several changes were made to increase the penalties for the human trafficking in the ''CC''.  The changes were made as part of Bill C-36: ''Protection of Communities and Exploited Persons Act'' [''PCEPA''] which was enacted in response to the 2014 Supreme Court ruling [https://www.canlii.org/en/ca/scc/doc/2013/2013scc72/2013scc72.html?autocompleteStr=Canada%20(Attorney%20General)%20v%20Bedford%20%5BBedford%5D%2C%202013%20SCC%2072&autocompletePos=1 ''Canada (Attorney General) v Bedford'' [''Bedford''<nowiki>]</nowiki>, 2013 SCC 72].  In ''Bedford'', the Supreme Court of Canada found certain prostitution-related offences to be unconstitutional. The ''PCEPA'' posits sex workers as a vulnerable group and prostitution as a form of sexual exploitation.  It also attempts to address the constitutional concerns highlighted in ''Bedford'' by including exceptions to criminal liability in order to protect prostitutes and ensure they are able to report abusive or dangerous behaviour without fear of being prosecuted.  The constitutionality of the ''PCEPA'' has yet to be challenged in front of the Supreme Court of Canada, although various groups including the Canadian Bar Association have expressed concerns that certain aspects of the new law remain unconstitutional. (See [http://www.cba.org/CBA/submissions/pdf/14-57-eng.pdf “Bill C-36, ''Protection of Communities and Exploited  Persons Act''”, National Criminal Justice Section and Municipal Law Section of the Canadian Bar Association, October 2014]).
In 2014, several changes were made to increase the penalties for the human trafficking in the ''CC''.  The changes were made as part of Bill C-36: ''Protection of Communities and Exploited Persons Act'' [''PCEPA''] which was enacted in response to the 2014 Supreme Court ruling [https://www.canlii.org/en/ca/scc/doc/2013/2013scc72/2013scc72.html?autocompleteStr=Canada%20(Attorney%20General)%20v%20Bedford%20%5BBedford%5D%2C%202013%20SCC%2072&autocompletePos=1 ''Canada (Attorney General) v Bedford'' [''Bedford''<nowiki>]</nowiki>, 2013 SCC 72].  In ''Bedford'', the Supreme Court of Canada found certain prostitution-related offences to be unconstitutional. The ''PCEPA'' posits sex workers as a vulnerable group and prostitution as a form of sexual exploitation.  It also attempts to address the constitutional concerns highlighted in ''Bedford'' by including exceptions to criminal liability in order to protect prostitutes and ensure they are able to report abusive or dangerous behaviour without fear of being prosecuted.  The constitutionality of the ''PCEPA'' has yet to be challenged in front of the Supreme Court of Canada, although various groups including the Canadian Bar Association have expressed concerns that certain aspects of the new law remain unconstitutional. (See [http://www.cba.org/CBA/submissions/pdf/14-57-eng.pdf “Bill C-36, ''Protection of Communities and Exploited  Persons Act''”, National Criminal Justice Section and Municipal Law Section of the Canadian Bar Association, October 2014]).
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Additional information concerning Bill C-36 may be obtained [https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/412C36E here].
Additional information concerning Bill C-36 may be obtained [https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/412C36E here].


==== BC’s First Human Trafficking Conviction under the Criminal Code ====
==== c. BC’s First Human Trafficking Conviction under the Criminal Code ====


In 2014, BC saw its first human trafficking conviction under the ''Criminal Code'' provisions.  In [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1727/2014bcsc1727.html?autocompleteStr=R%20v%20Moazami%2C%202014%20BCSC%201727&autocompletePos=1 ''R v Moazami'', 2014 BCSC 1727], Reza Moazami was charged with 36 counts including human trafficking, living on the avails of a juvenile, and sexual assault.  Two of the 36 charges were for trafficking in persons, and Moazami was convicted on one of the counts.   
In 2014, BC saw its first human trafficking conviction under the ''Criminal Code'' provisions.  In [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1727/2014bcsc1727.html?autocompleteStr=R%20v%20Moazami%2C%202014%20BCSC%201727&autocompletePos=1 ''R v Moazami'', 2014 BCSC 1727], Reza Moazami was charged with 36 counts including human trafficking, living on the avails of a juvenile, and sexual assault.  Two of the 36 charges were for trafficking in persons, and Moazami was convicted on one of the counts.   
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