Victims of Human Trafficking (4:VIII)

Human trafficking is a complex and multifaceted crime that can occur both domestically and internationally. The victims of human trafficking are deprived of their basic rights to freedom and movement. As such, human trafficking is often described as modern day slavery.

Although each human trafficking case is different, a person may be trafficked if they:

• Cannot leave their job to find another one;
• Do not have control over their wages or money;
• Work but do not get paid normal wages;
• Have no choice about hours worked or other working conditions;
• Work long hours, live at a work site, or is picked up and driven to and from work;
• Shows signs of physical abuse or injury;
• Are accompanied everywhere by someone who speaks for him or her;
• Appear to be fearful or and or under the control of another person;
• Owe money to their employer or another person who they feel honour bound to pay;
• Are unfamiliar with the neighbourhood where they live or work;
• Are not working in the job originally promised to them;
• Are travelling with minimal or inappropriate luggage/belongings;
• Lack Identification, passport or other travel documents;
• Are forced to provide sexual services in a strip club, massage parlour, brothel or other location.

The following publication from the United Nations Office on Drugs and Crime provides a comprehensive list of indicators that a person may be trafficked:

http://www.unodc.org/documents/human-trafficking/HT_indicators_E_LOWRES.pdf

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;
• 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;
• 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;
• Feel threatened that traffickers will harm their families if they report their situation to, or cooperate with, law enforcement.

In 2007, B.C. established the Office to Combat Trafficking in Persons (“OCTIP”). Since 2011, OCTIP has been part of the Community Safety and Crime Prevention Branch, Ministry of Justice. OCTIP is part of the Victim Services and Crime Prevention Division of the Ministry of Justice located in Vancouver, BC. The OCTIP develops and coordinates strategies to address human trafficking within the province. The OCTIP takes a human rights approach that focuses on the rights and needs of trafficked persons. This approach gives back control to the trafficked person by offering information, referrals, support and assistance but allows the trafficked person to make decisions and choices for themselves. OCTIP also works with and provides support to law enforcement and Crown Counsel with the prosecution of human trafficking cases. See the Resources section below for more information on the OCTIP and their contact information.

A. Governing Legislation and Resources

1. Legislation

Human trafficking is defined in the UN Trafficking in Persons Protocol as “the act of recruitment, transportation, transfer, harbouring or receipt of persons ... by means of threat or use of force or other forms of coercion, of abduction, fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person ... for the purpose ofexploitation. Exploitation shall include, at a minimum:

• the exploitation of the prostitution of others or other forms of sexual exploitation,
• forced labour or services,
• slavery or practices similar to slavery,
• servitude,
• or the removal of organs.”

Human trafficking is an offence under both the Criminal Code (ss 279.01-279.04), and the Immigration and Refugee Protection Act [IRPA](Part 3). Sections 279.01-279.04 of the Criminal Code make it an offence to:

1. Recruit, transport, transfer, receive, hold or hide a person, or exercise control, direction or influence over an adult or a minor’s movement for the purpose of exploiting or facilitating the exploitation of that person.
2. Benefit materially from human trafficking.
3. Withhold or destroy a person’ s travel or identification documents, such as a passport or visa, for the purpose of trafficking, or helping to traffic, that person.

Exploitation is defined in s 279.04(1) of the CC in the following terms:

“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”.

In order to determine whether an accused exploits 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 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:

1. 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 in contravention of IRPA (s 117(1)).
2. Knowingly organize the coming into Canada or one or more persons by means of abduction, fraud, deception or use of threat of force or coercion (s 118(1)).

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 sections 117(2)-(3)).

R. v. Franco Orr, 2013 BCSC 1883, was the first conviction for human trafficking under IRPA in BC. In that case, a jury found Mr. Orr guilty of the following:

1. Knowingly organizing the coming into Canada of the complainant, by means of abduction, fraud, deception or use of the threat of force or coercion, contrary to s. 118(1) of IRPA;
2. Employing a foreign national, in the capacity to which she was not authorized to be employed, contrary to s. 124(1)(c) of IRPA; and
3. Misrepresenting or withholding material facts relating to a relevant matter that induced or could induce an error in the administration of the Act by providing false information to the Consulate General of Canada in support of the application for temporary resident visa for entry to Canada for the complainant, contrary for s. 127(a) of IRPA.

The complainant in the case was originally from the Philippines but worked for the Orr family as a domestic helper in Hong Kong. The complainant agreed to move to Canada under false pretences and was employed by Mr. Orr despite his knowledge that she did not have the required visa. While Mr. Orr was convicted, his wife, Ms. Huen, was acquitted of all the charges she faced.

At trial, Mr. Orr received a global sentence of 18 months jail. In 2015, however, the case was successfully appealed. In 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.

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 Canada (Attorney General) v Bedford [Bedford], 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.

Bill C-36 made three significant sentencing changes to the human trafficking provisions in sections 279.01 to 279.03 of the CC. First, the new provisions include a mandatory minimum sentence of 5 years where a trafficker is convicted of human trafficking and also kidnaps, commits aggravated assault or aggravated sexual assault against or causes the death of the victim and a mandatory minimum sentence of 4 years in other cases (s. 279.01). Second, s 279.02(2), receiving a material benefit from trafficking of minors, now carries a mandatory minimum sentence of 2 years, and the maximum sentence available for the offence has been extended from 10 to 14 years. Third, the maximum sentence for withholding or destroying documents to facilitate trafficking of minors has been extended from a maximum of 5 years to a maximum of 10 years, with a mandatory minimum sentence of 1 year.

In 2014, B.C. saw its first human trafficking conviction under the CC provisions. In 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. Justice Bruce found beyond a reasonable doubt that Moazami transported and controlled the victim’s movements for the purpose of exploitation. The evidence showed Moazami intimidated the

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