15 August

HUMAN TRAFFICKING: NOT AS SCARY AS IT SOUNDS

By: Hubert Gonzalez

When you hear the words “human trafficking,” what crosses your mind? Someone locked in a basement, chained to a pipe? A group of children being auctioned off to the highest-bidder? Young girls being sold for sex from person to person, from country to country or even from city to city? Yes, these examples do exist in real life and they are as scary as the words “human trafficking” sound, or worse. However, in the current state of Canadian law, these two words encompass so much more.

Human Trafficking, also known as “trafficking in persons,” is defined in section 279.01 of the Criminal Code of Canada (Code). Section 279.01 states:

(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.

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

The Code does not define the actions that make up the offence. Rather, case law has interpreted what the words mean. For example, “Recruit” has been interpreted to mean to persuade to do or persuade to help with something. “Control” refers to invasive conduct, a power that leaves the controlled person with little choice. “Direction” is exercised over the movements of a person when rules or behaviours are imposed. “Influence” includes less constraining conduct. Any action exercised over a person for the purpose of aiding, abetting or compelling that person to engage in prostitution would be considered an influence. “Facilitate” means to make something easier. These words have been interpreted in a way that captures a wide range of conduct. Exploitation is the principle consideration in assessing whether or not conduct that meets one of these definitions is considered “human trafficking.”

Exploitation is defined in the Code in section 279.04. Section 279.04 states:

[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.

(2) In determining whether an accused exploits another person under subsection (1), 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.

Although the Code provided a clear and workable definition of exploitation that focuses on the “safety” of the person, the Ontario Court of Appeal in R v AA, has broadened the definition of “safety” to include not just physical safety but also extends to psychological safety. The interpretation of the word “safety” adds a subjective element to the analysis. Now, the question a court must ask itself is not “did the conduct of the accused risk the safety of the complainant?” The question is now, “did the conduct of the accused make the complainant believe that her safety was at risk?” Actual harm is not required to have occurred for someone to be convicted of trafficking in persons.

This section has the potential to catch many “innocent” people. The recent case from the Ontario Court of Justice, R v Finestone, provided two reasonable hypothetical examples of this. The first example is similar to an nineteen year old boy with no prior record, who is homeless and troubled, forces an eighteen year old homeless youth who is new to the city and has nowhere to live to work as a prostitute for him with the promise of a better life, a warm room and some attention. The eighteen year old services one client where the act is oral sex. The offender keeps all the profits. The following day, after realizing that she would see none of the profits and feeling depressed and violated, the eighteen year old victim leaves. The second example is similar to a nineteen year old prostitute agreeing to drive an eighteen year old prostitute to a motel at the behest of a pimp so that the eighteen year old could work as a prostitute for the pimp at the motel. These two scenarios both have all the essential elements to make out the offence of trafficking in persons, yet, they are not the examples that come to mind when we hear the words “human trafficking.”

The offence of Trafficking in Persons Over 18 years of age carries a mandatory minimum sentence of four years imprisonment. The offence of Trafficking in Persons Under 18 years of age carries a mandatory minimum sentence of five years imprisonment. The constitutionality of the former is scheduled to be challenged at the Ontario Superior Court in Guelph, Ontario on August 29, 2017.

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