Annex A
Jurisprudence
Issue: Trafficking in persons related case law
Analysis: Convictions are entered under a range of offences in human trafficking cases, including sex trade offences (sections 286.2 to 286.4) and others (e.g., forcible confinement, assault and sexual assault).Footnote 253
Select cases:
R v Sinclair, 2020 ONCA 61, trafficking in persons and theft
R v Gallone, 2019 ONCA 663, acquittal on trafficking and sex trade charges overturned; new trial ordered
R v Antoine, 2019 ONSC 3843, conviction for trafficking and sex trade offences
R v Majdalani, 2017 ONCJ 145, conviction for trafficking, sex trade and related offences (decision upheld in R v Majdalani, 2019 ONCA 513)
R v Evans, 2017 ONSC 4028, conviction for trafficking and related offences
R v AS, 2016 ONSC 6965, conviction for trafficking, prostitution and other related offences
R v S, 2015 ONSC 7749, conviction for trafficking and other related offences
Urizar c R, 2013 QCCA 46, conviction for trafficking and other related offences confirmed
R v Byron, 2013 ONSC 6427, conviction for trafficking, prostitution and other related offences
Analysis: Some human trafficking cases result in convictions for offences other than human trafficking.
Select cases:
R c Ayala Tafur, 2020 QCCQ 3357, convictions for sex trade offences and other related charges, acquittal on trafficking charges
R v Gracia, 2020 ONCJ 31, conviction for sex trade offence and assault, acquittal on trafficking charges
R v AM, 2020 ONSC 4191, conviction for sex trade offences, acquittal on trafficking charges
R v Lucas-Johnson, 2018 ONSC 2370, conviction for sex trade offences, acquittal on trafficking charges
R v Moradi, 2016 ONCJ 842, conviction for possession of property obtained by crime (section 354), acquittal on trafficking and sex trade charges
R v Dagg, 2015 ONSC 2463, conviction for theft (section 322), acquittal on trafficking charges
R v Moazami, 2014 BCSC 1727, conviction for prostitution and related offences, acquittal on trafficking charges
R v Salmon, 2014 ONCJ 542, conviction for assault (sections 266 and 267) and breach of recognizance (section 145), acquittal on trafficking charges
R v Mouzannar, [2014] OJ No 6560 (OCJ), conviction for breach of recognizance, acquittal on trafficking and prostitution charges
R c Tynes, 2010 QCCQ 9767, convictions for prostitution and other related offences; acquittal on trafficking charges
Issue: Jurisdiction
Analysis: The court of one province has jurisdiction where a human trafficking scheme continues from that province to another and back.
It is an error to acquit where the court lacks territorial jurisdiction. The appropriate remedy is a stay to allow a competent court to be seized of the prosecution.
Select cases:
R c Ibeagha, 2019 QCCA 1534, Quebec had territorial jurisdiction, acquittals quashed and new trials ordered
Issue: Bail
Analysis: Bail may be denied on secondary (public safety) and/or tertiary (maintain confidence in the administration of justice) grounds.
Select cases:
R v Mohsenipour and Albashir 2020 BCCA 112, interim bail pending appeal denied on secondary and tertiary grounds, impact of COVID-19 considered
R v SM, 2020 ONCA 427, interim bail pending appeal denied on tertiary grounds (decision reversed on basis of material change in circumstance; R v SM, 2020 ONCA 610)
R v Brown, 2020 ONSC 2626, prior decision to deny bail on secondary grounds upheld, impact of COVID-19 considered
R v Davidson, 2020 ONSC 2775, prior decision to deny bail on secondary and tertiary grounds upheld, impact of COVID-19 considered
R v Hammoe, 2016 ONSC 1790, decision to deny bail on secondary grounds upheld
R v Domotor, [2012] OJ No3630 (OSCJ), accused denied bail on secondary and tertiary grounds; see also St-Cloud, 2015 SCC 27, interpreting tertiary ground broadly
Issue: Charter of Rights and Freedoms
Analysis: Human trafficking offences have been found to comply with the Charter.
Select cases:
R v D’Souza, 2016 ONSC 2749, upheld constitutionality of sections 279.01, 279.011 and 279.02
R v Beckford and Stone, 2013 ONSC 653 and R v Ahmed et al, 2019 ONSC 4822 upheld constitutionality of section 279.011
Analysis: Mandatory minimum penalties pose Charter concerns under section 12 (cruel and unusual punishment).
Select cases:
R v Webber, 2019 NSSC 147, 4 years for child trafficking, sex trade offences and child sex offences; child trafficking mandatory minimum penalties unconstitutional
R v Finestone, 2017 ONCJ 22, 4 years for child trafficking, 5 year MMP unconstitutional but no declaration of invalidity
Issue: Statutory Interpretation
Analysis: The Ontario Court of Appeal, the Quebec Court of Appeal and the British Columbia Court of Appeal have interpreted the human trafficking provisions broadly.
Select cases:
R v AA, 2015 ONCA 558, interprets trafficking provisions broadly, consistent with Parliamentary intent
R v Gallone, 2019 ONCA 663, broad interpretation, followed AA
R v Sinclair, 2020 ONCA 61, broad interpretation, followed Gallone and AA
Chahinian c R, 2022 QCCA 499, broad interpretation, followed AA, Gallone and Sinclair
R v Wilson, 2022 ONCA 857, broad interpretation, followed AA, Gallone, Sinclair and Chahinian
R v Mohsenipour, 2023 BCCA 6, broad interpretation, followed AA
Issue: Evidence
Analysis: KGB statement and corroborating evidence assist in proving victims’ allegations.
Select cases:
R v AN, 2019 ONCA 741, trial judge’s decision to admit video-recorded statements of victim after she recanted upheld
R v Jeffers, [2019] OJ No1711 (OCJ), recanting victim; conviction for trafficking and sex trade offences based on victim’s KGB statement to police and corroborating evidence
R v Crosdale, 2018 ONCJ 800, victim credibility issues but corroborating evidence (paragraph 9); conviction for trafficking, sex trade and related offences
R v NA, 2017 ONCJ 196, recanting victim; conviction for trafficking and related charges based on victim’s KGB statement to police and corroborating evidence
Analysis: Other types of evidence may be relevant in sex trafficking cases.
Select cases:
R v PO, 2020 ABQB 542, Instant Messages (prior consistent statements) admitted as evidence (voir dire)
R v NC, 2019 ONCA 484, text messages between complainant and NCwere “highly cogent evidence” of the appellant’s control over the complainant’s sexual, physical and financial autonomy
R v Appiah, [2019] OJ No 3907 (OSCJ), evidence that accused provided drugs to the complainant is relevant to exploitation; evidence of violent/ threatening behaviour witnessed by complainant is relevant to state of mind of complainant
R v Bright, 2017 ONSC 377, accused’s posts promoting the idea of women selling sexual services under the guidance/control of a pimp, with praise for those who bring in money and scorn for those who are poor but do not sell sexual services, admitted as relevant evidence
R v Bright, 2016 ONSC 7641, detective (Truong) qualified as an expert to offer opinion evidence on sex trade, including terminology and methods of advertising used in sex trade
R v Moradi, 2016 ONCJ 843, book on accused’s laptop, “Pimpology – The 48 Laws of the Game”, admitted as relevant evidence
Analysis: Accused may be required to apply to the court to admit evidence of complainant’s sexual history. The law is currently unsettled.
Select cases:
R v MD, 2020 ONSC 951, accused must bring application under common law to introduce evidence of complainant’s sexual history (willing involvement in the sex trade) in trafficking/sex trade offence cases to ensure fair trial (section 276 applications do not apply)
R v Miller, [2020] OJ No 1934, section 276 application required where accused charged with child trafficking and child sexual offences, according to reasoning in R v Barton, 2019 SCC 33
R v LR, 2019 ONSC 6860, application under section 276 respecting evidence of complainant’s sexual history (willing involvement in the sex trade)
Analysis: Testimonial aids have been used to facilitate victim testimony.
Select cases:
R v SLC, LJA, EDW, 2020 ABQB 515, complainant allowed to testify by video conference
Appiah, [2019] O.J. No. 3907 (OSCJ), complainant allowed to testify by CCTV and have support person present
R v Lucas-Johnson, 2018 ONSC 2370, complainant allowed to testify by video link due to her vulnerability
Analysis: Traffickers who dissuade victims from giving evidence.
Select cases:
R v Gashi, 2014 ABPC 72, conviction for attempting to dissuade trafficking victim from giving evidence (obstructing justice, subsection 139(2))
Issue: Victim / Public Protection
Analysis: Peace bonds are an option in cases where evidence is insufficient to convict.
Select cases:
R v Butler, [2017] OJ No 7026 (OCJ), acquittal on trafficking, sex trade and related charges (inconsistent victim testimony); peace bond imposed
Analysis: Some traffickers have been designated as dangerous offenders or long-term offenders.
Select cases:
R v Burton, 2018 ONCJ 153, long term offender designation granted; offender committed trafficking and other related offences; although no overt violence, offender created a context of fear and control
R c Mataev, 2016 QCCS 650, dangerous offender designation granted; offender committed trafficking and other related offences
Issue: IRPA
Analysis: Section 118 found to comply with the Charter.
Select cases:
R v Ng, 2006 BCPC 111, section 118 held not to violate section 7 of the Charter.
Analysis: Additional charges in cross-border trafficking cases may assist.
Select cases:
R v Ye Win, [2018] OJ No 5006, accused acquitted, teenage girl adopted by accused, brought to Canada and treated as a domestic servant; no proof of inducement to come to Canada through deception but evidence of exploitation.
R v Orr, 2016 BCSC 2064, 3 month conditional sentence for employing as foreign national w/o authorization (section 124 IRPA).
R v Ng, 2008 BCCA 535, Crown’s sentence appeal allowed, 27 months imposed for prostitution and immigration offences.
Sentencing
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