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. Thus, 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 them
• 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

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

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. (See National Action Plan to Combat Human Trafficking, Government of Canada, 2012).

In 2007, BC established the Office to Combat Trafficking in Persons (OCTIP). OCTIP is part of the Victim Services and Crime Prevention Division of the Ministry of Public Safety and Solicitor General. OCTIP develops and coordinates strategies to address human trafficking within the province. 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. Law enforcement and Crown Counsel prosecute human trafficking cases in BC. See the Resources section below for more information on OCTIP.

A. Governing Legislation and Resources

1. Legislation

Human trafficking is defined by the United Nations 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 of exploitation” (United Nations Convention against Transnational Organized Crime; Annex II: The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, UNGA A/RES/55/25 (entered into force 25 December 2003)). 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 Criminal Code 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 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 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)).

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 ss 117(2)-(3)).

BC’s First Human Trafficking Conviction under IRPA

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:

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 to 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 of 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. A new trial was held in June 2016 (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

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. (See “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).

Bill C-36 made several significant sentencing changes to the human trafficking provisions in ss 279.01 to 279.03 of the Criminal Code. First, the new provisions include a mandatory minimum sentence of 5 years where a trafficker is convicted of human trafficking (s 279.01 of the Criminal Code) and also kidnaps, commits aggravated assault or aggravated sexual assault against, or causes the death of the victim. In such cases, the maximum sentence is life. In other cases of trafficking of adults, the mandatory minimum sentence of 4 years (s 279.01). The maximum is 14 years. 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 mandatory minimum sentence for withholding or destroying documents to facilitate trafficking of minors is 1 year. The maximum sentence has been extended from 5 years to 10 years.

Bill C-36 made a number of other changes. First, offences under the Criminal Code apply generally only to acts committed within Canadian territory. However, exceptions to this principle of territoriality are provided in s 7 of the Criminal Code. These include terrorism offences, human trafficking and sexual offences against children. In this last example, the bill provides that anyone who obtains for consideration the sexual services of a minor outside Canada will face the new minimum (6 months or 1 year) and maximum (10 years) penalties.

Second, the offence of luring a child consists in communicating, by any means of telecommunication, with a person under 18 years of age for the purpose of facilitating the commission of one of the offences with respect to that person – generally a sexual offence – listed in s 172.1 of the Criminal Code. The Bill adds the three existing offences pertaining to trafficking of minors (ss 279.011, 279.02 and 279.03 of the Criminal Code) to the list of offences. Consequently, an accused person convicted of having lured a person under 18 years of age for the purpose of facilitating the commission of a trafficking-related offence against that person shall be liable to the following penalties:

• upon indictment: imprisonment for a term of between one year and 10 years
• upon summary conviction: imprisonment for a term of between 90 days and 18 months

Third, Bill C-10 makes it an offence to agree or arrange with another person, by any means of telecommunication, to commit one of the offences – generally of a sexual nature – mentioned in s 172.2 of the Criminal Code. Bill C-36 adds to the list of offences the three existing offences pertaining to trafficking of minors (ss 279.011, 279.02 and 279.03 of the Criminal Code). An accused person convicted of having made an agreement or arrangement with another person over the Internet to commit a human trafficking offence in respect of a person under 18 years of age shall be liable to the same minimum and maximum sentences as those provided for luring (i.e., a term of one year to 10 years upon indictment or of 90 days to 18 months upon summary conviction).

Additional information concerning Bill C-36 may be obtained here.

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 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 victim, J.C., with actual violence and threats of violence towards J.C.’s dog. Moazami also provided the victim with free illicit drugs to keep her addicted and dependent on him, and counseled her to distrust the police. Moazami was acquitted on the second human trafficking charge. Although it was clear Moazami abused the victim H.W., the court was in reasonable doubt as to whether Moazami’s behaviour caused H.W. to fear that her safety or the safety of another person was threatened.

Sentencing was discussed in R v Moazami, 2015 BCSC 2055. Because eight of the 11 complainants were under the age of 18 years at the time of the offences, s 718.01 of the Criminal Code requires the Court to give primary consideration to the objectives of denunciation and deterrence when sentencing.

Further, s 718.1 stipulates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 also mandates a consideration of the relevant mitigating and aggravating circumstances. Lastly, s 718.2(b) enshrines the principle that similar offences committed by similar offenders should be accorded similar sentences.

Where the offender has been convicted of multiple offences involving multiple complainants, the Court must decide whether the sentence for each offence should be served concurrently or consecutively to each other. The proper approach is to first determine the appropriate sentence for each offence and then decide if the sentences should be served concurrently or consecutively.

When using the applicable statutory minimum and maximum sentences as a benchmark, and applying the factors relevant to the application of the totality principle, Justice Bruce found that a sentence of 23 years is the minimum necessary to achieve the fundamental objectives of sentencing on the facts of this case.  Justice Bruce stated that the aggregate of the minimum sentences informs the Court with regard to the length of sentence necessary to adequately reflect the serious nature of the offences, the multiple complainants, the many aggravating factors, and Moazami's moral blameworthiness in light of the few mitigating circumstances.

To achieve the length of sentence of 23 years, Justice Bruce decided that the sentences imposed with respect to the offences against individual complainants will be served concurrently with each other, but consecutively in regard to each of the other complainants with some exceptions.

Justice Bruce calculated the total time served credit as 1851 days or five years and 26 days. Deducting this time from the imposed sentence of 23 years, Justice Bruce found that the remaining sentence to be served was 17 years and 339 days.

2. Temporary Resident Permit for Victims of Human Trafficking

Many victims of human trafficking find themselves in Canada without proper documentation and at risk of deportation. To address this issue, Citizenship and Immigration Canada (CIC) can issue a special temporary resident permit to victims of human trafficking (This is referred to as the VTIP TRP – Victims of Trafficking in Persons, Temporary Resident Permit). The VTIP TRP gives presumed trafficked persons legal status in Canada and is valid for up to 180 days. Depending on the circumstances of the individual, CIC can even reissue the TRP at the end of the 180-day period. The benefits of the VTIP TRP include access to health care benefits and trauma counselling through the Interim Federal Health Program. A work permit is also issued and in BC, social assistance benefits may be available. A presumed trafficked person with a VTIP TRP is eligible to apply for social assistance benefits. Victims of human trafficking need not testify against their trafficker in order to be eligible for an initial TRP. However, immigration officers will interview an individual in order to decide whether they are eligible for the TRP.

For more information about obtaining a VTIP TRP, call CIC at 1-888-242 2100.

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