Chapter 1: What is trafficking in persons?

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Trafficking in persons (TIP), also referred to as human trafficking, is a serious crime. TIP involves an act committed for the purpose of exploiting someone’s labour or services. Victims^{Footnote 1} provide their labour or services under circumstances that would cause a reasonable person in the victim’s shoes to believe that their physical or psychological safety — or that of someone known to them — would be threatened if they refuse to provide that labour or service. TIP violates the autonomy of its victims, often through the abuse of a position of trust, power or authority, and may include acts of physical and/or sexual violence or threats of violence, manipulation and/or psychological control. These acts or threats of violence will frequently, in and of themselves, constitute separate criminal offences.

1.1 Purpose of this Handbook

The purpose of this Handbook is to provide criminal justice practitioners with guidance in the investigation and prosecution of human trafficking cases. This Handbook is designed to assist front-line personnel and improve the ability of the criminal justice system to bring traffickers to justice while fully respecting the rights and needs of victims. It is also intended to promote a consistent criminal justice response to this crime. As appropriate, the strategies contained in this Handbook may be adapted to respond to the particular needs of individual jurisdictions.

The first edition of the Handbook was released in 2015 in support of a commitment by Federal, Provincial and Territorial (FPT) Ministers responsible for Justice and Public Safety to work together more closely to address human trafficking. Five years later, in 2020, FPT Ministers asked FPT officials with expertise in criminal justice matters to examine ways to strengthen the criminal justice system’s response to human trafficking, including by updating the Handbook. This work was informed by promising practices developed around the world, as well as by Canadian successes in investigating and prosecuting human trafficking cases. FPT Ministers responsible for Justice and Public Safety endorsed the updated version of the Handbook at their 2023 meeting.

1.2 Outline

The chapters in this Handbook provide information that is organized to be relevant at various stages of the criminal justice process. This first chapter provides baseline data, including an overview of the phenomenon of human trafficking, what is known about TIP in Canada, the impact it has on victims, the profile of offenders, an overview of federal and provincial strategies to combat trafficking, as well as information on the international community’s response to this crime in recent years.

Chapter 2 provides an overview of Canada’s human trafficking offences and other related offences used to address this crime. It also breaks down TIP-specific offences into their constituent elements.

Chapter 3 is directed at law enforcement. It includes information designed to assist in interviewing victims and other potential witnesses. Importantly, it identifies the relevant safety considerations in TIP cases and how to provide for the physical, psychological and social recovery of victims. It includes indicators of potential TIP cases as well as tips for crime scene examination. Among other things, it also provides guidance on laying charges, reliance upon peace bonds, and releasing an accused from custody. Lastly, it includes useful information for the investigation of TIP cases with international dimensions.

Chapter 4 is directed at Crown prosecutors. Interviewing victims, running a bail hearing and conditions of release, the use of testimonial aids, and proceeds of crime considerations are all canvassed in this chapter.

Chapter 5 focuses on sentencing considerations. It provides practical guidance to prosecutors on considerations that are likely to apply in human trafficking cases, such as relevant sentencing principles, and common aggravating and mitigating factors. It also provides information on preparing sentencing submissions and on the role that victims can play in the sentencing process.

Chapter 6 provides information on victim services available in Canada.

1.3 What is Trafficking in Persons?

Trafficking in persons involves the recruitment, transportation, harbouring and/or exercise of control, direction or influence over the movement of persons for the purpose of exploitation, typically for sexual exploitation or forced labour. Victims are required to provide (or offer to provide) their services or labour as a result of conduct that could reasonably be expected to cause a person in the victim’s circumstances to believe that their physical or psychological safety — or that of someone known to them — would be threatened if they refuse to provide that service or labour. Victims suffer physical, sexual and/or psychological abuse and often live and work in horrific conditions.

The United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol)^{Footnote 2} articulates the most widely accepted international framework for addressing TIP and calls upon States Parties to take steps to prevent trafficking, protect victims and prosecute offenders. The Trafficking Protocol is the only globally binding international instrument that contains an agreed upon definition of TIP. Canada ratified the Trafficking Protocol and its parent convention, the Convention against Transnational Organized Crime, on May 13, 2002.

Article 3 of the Trafficking Protocol defines TIP as follows:

1. “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of 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. 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
2. The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used
3. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article
4. “Child” shall mean any person under eighteen years of age

Article 5 the Trafficking Protocol obligates States Parties to criminalize TIP in accordance with the definition contained in Article 3. How Canada has implemented these obligations (and accordingly criminalized TIP) is discussed fully in Chapter 2.

The Criminal Code’s^{Footnote 3} main trafficking offences (section 279.01 and 279.011) are consistent with the definition of “trafficking in persons” in article 3, but easier to prove because they do not require proof that the act element (e.g., recruiting, transporting or harbouring etc.) was effected through specific means (e.g., force, fraud or coercion etc.). To establish guilt, prosecutors must prove that the accused committed the act element (e.g., recruiting, transporting or harbouring), with the intent of exploiting the victim or facilitating the victim’s exploitation by someone else. See Chapter 2 for more information on these offences and their elements.

1.4 Difference between Trafficking in Persons and Migrant Smuggling

Sometimes human trafficking and migrant smuggling cases are confused. They are, however, different crimes and involve different conduct. Understanding the differences between the two is critically important from an investigatory perspective and treating a trafficking case as a smuggling case can have significant implications for trafficked persons.

The main differences between trafficking in persons and migrant smuggling are as follows:

1. Human smuggling is, by definition, a transnational crime; whereas, TIP can occur transnationally or entirely within a country’s borders
2. Human smuggling generally involves the consent of the person smuggled. Trafficked victims have either never consented or their consent has been rendered meaningless by the illicit means used by the trafficker
3. Smuggled persons are generally free to do what they want once they arrive at their country of destination. In contrast, trafficked persons have their liberty curtailed and are coerced into providing their labour and/or services
4. The source of profit for human smuggling is the fee associated with the smuggling act. In trafficking cases, profits are made through the ongoing exploitation of the victims

Migrant smuggling is a transnational crime that is typically prosecuted under section 117 of the Immigration and Refugee Protection Act.^{Footnote 4} Despite the differences between smuggling and trafficking, it is crucial to properly identify these crimes in practice because human smugglers may well intermingle victims and migrants, and smuggled migrants are at risk of becoming trafficking victims.

1.5 What We Know about Human Trafficking Globally

TIP is a profitable and pervasive violation of human rights, affecting people of all genders. TIP is often characterized as a “low risk, high-reward” activity because of the practical difficulties of identifying, investigating and prosecuting cases and the enormous profits available to those who commit this crime. While figures vary, an estimate from 2021 indicated that the number of trafficking victims globally at any given time is around 50 million people.^{Footnote 5} In 2014, profits from TIP were estimated at $150 billion per year.^{Footnote 6}

Prior to COVID-19, countries were detecting more victims and convicting more traffickers. While the number of globally detected victims decreased in 2020 by 11% from 2019,^{Footnote 7} the COVID-19 pandemic may have increased the incidence of TIP.^{Footnote 8} Globally, victims may be trafficked for the purpose of sexual exploitation, forced labour or for other purposes, such as organ removal, forced criminality, exploitative begging or child soldiering. Prior to the COVID-19 pandemic, trafficking for sexual exploitation was the most detected form of TIP with 50% of detected trafficking victims being trafficked for the purpose of sexual exploitation, followed by 38% of detected victims trafficked for forced labour.^{Footnote 9} In 2018, women made up the largest percentage of detected victims at 46% followed by girls at 19%, men at 20% and boys at 15%.^{Footnote 10} Globally, roughly 77% of victims trafficked for the purpose of sexual exploitation are women, while roughly 67% of victims trafficked for forced labour are men.^{Footnote 11} Data from the first year of the COVID‑19 pandemic recorded a 24% decrease in detection of trafficking for the purpose of sexual exploitation and a 21% decrease in detection of cross-border trafficking. Trafficking for sexual exploitation and trafficking for forced labour were detected at almost equal rates, with 38.8% of detected victims trafficked for forced labour and 38.7% of detected trafficking victims trafficked for the purpose of sexual exploitation.^{Footnote 12} In 2020, women made up the largest percentage of detected victims at 42% followed by men at 23%, girls at 18% and boys at 17%.^{Footnote 13}

International research shows that trafficked persons may be subjected to repeated acts of physical, sexual and psychological violence resulting in significant and enduring ill effects on physical and mental health. Trafficked persons also face a number of health risks and diseases ranging from sexually transmitted infections, such as HIV/AIDS, to malnutrition. In many cases, unsanitary, crowded living conditions, poor nutrition and lack of adequate medical care also contribute to a host of adverse health conditions. While some of the physical damage from TIP may be treated with appropriate medical care, the psychological consequences may endure. As noted by the United Nations Office on Drugs and Crime:

The trafficking experience may create a systematic disruption of basic and core attachments to family, friends and religious and cultural systems; the destruction of central values relating to human existence; and the creation of shame following brutal acts including torture and rape. Relationships may be changed, including those with the general community and authority figures, leading to a general sense of mistrust of others and a fear of forming new relationships. The capacity for intimacy may be altered, grief may be pronounced and depression may be overwhelming. The results of the experience can be everlasting, even with treatment.^{Footnote 14}

International research also shows that human trafficking has wide-reaching societal impacts including:

• Separating trafficked persons from their families and communities, including children from their parents
• Impeding education, development and future productivity
• Losing one’s culture and language, especially for young children
• Stigmatizing and ostracizing of victims
• Reinforcing the cycle of poverty and illiteracy that stunts national development^{Footnote 15}

This pandemic caused an unprecedented decrease in economic activity and working time, which may significantly increase the number of those who live in extreme poverty. Poverty creates a “higher risk of exploitation leading to human trafficking.”^{Footnote 16}

For a more detailed analysis of global trafficking trends, victim profiles and trafficker profiles, please see the United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons, 2022 or their most recent Global Report on Trafficking in Persons.

1.6 What We Know about Human Trafficking in Canada

The most recent information available on human trafficking in Canada is contained in Statistics Canada’s 2022 Trafficking in Persons report, which examines police-reported and court data from 2010 to 2022. This report found that: between 2012 and 2021, there were year-over-year increases in the number of police-reported incidents of human trafficking, except for a slight decrease in 2018; and, the majority of detected human trafficking cases in Canada occur entirely within Canada and involve sexual exploitation.^{Footnote 17} Recent data also indicate that: over the last decade, Ontario and Nova Scotia have been overrepresented in the number of police-reported incidents of human trafficking in Canada; victims may not originate from the location in which incidents are detected; some victims may have been moved from one jurisdiction and exploited in another; and, human trafficking incidents are most often reported by police in urban centres.^{Footnote 18}

Similar to global trends, trafficking for sexual exploitation is the most detected form of trafficking in Canada, followed by trafficking for forced labour. Trafficking for organ removal, where the trafficked person’s organs are removed for transplantation, does not appear to be prevalent in Canada.

Generally, traffickers commit a range of other criminal offences while extracting labour or services from their victims. These include assault, sexual assault, uttering threats, extortion, kidnapping, forcible confinement, materially benefitting from others’ sexual services, procuring others to offer sexual services and/or advertising others’ sexual services.^{Footnote 19}

As in the rest of the world, the COVID-19 pandemic may have a considerable impact on human trafficking in Canada. The socio-economic effects of the virus, such as greater economic need, unstable living conditions, and increased prevalence of substance use/abuse, make vulnerable populations more susceptible to trafficking, while social isolation measures have reduced their access to needed supports.

1.6.1 Victims

Anyone can become a victim of human trafficking: Canadians, permanent residents and foreign nationals, including individuals from all socio-economic backgrounds. However, Indigenous and marginalized populations are at greatest risk of becoming trafficked, in particular where the factors that create vulnerability intersect. The following groups are disproportionately represented among those who have been trafficked in Canada: women and girls, particularly Indigenous women and girls; at-risk youth, including runaway and homeless youth; persons with disabilities; refugees and migrants; and 2SLGBTQI+ persons. Children, adolescent girls, and women tend to be most at risk of being trafficked for sexual exploitation.^{Footnote 20}

Recent data indicate that nearly all (94%) victims of police-reported human trafficking were women and girls. Just over four in ten (43%) of victims were aged 18 to 24, nearly one in four (24%) were under the age of 18 and nearly one in five (22%) were aged 25 to 34. Seven in ten (69%) of the victims where women and girls aged 24 and younger. The vast majority (91%) of victims of human trafficking knew the person accused of trafficking them. Most commonly, victims were trafficked by a current or former intimate partner (34%) or casual acquaintance (22%).^{Footnote 21} However, these statistics likely underreport trafficking cases involving male and gender diverse victims, and do not reflect their experiences, including because most human trafficking cases that have proceeded through Canada’s criminal justice involve sexual exploitation. Relevant international data indicate that, while sex trafficking cases involve predominantly female victims, trafficking cases for other types of exploitation involve a higher proportion of male victims.^{Footnote 22}

Victims may be reluctant to come forward due to fear for their safety or for the safety of someone known to them, shame or because they lack confidence in authorities.^{Footnote 23} Victims can suffer substantial trauma as they are often subjected to sexual, physical, financial, emotional and psychological abuse. The conditions they are required to live and work in are often horrific. It can take a lifetime to recover from the impacts of being trafficked.^{Footnote 24}

1.6.2 Indigenous Women and Girls

Canada’s history and ongoing treatment of Indigenous Peoples generally, and in particular of Indigenous women, through harmful and systemically racist laws, policies and practices, increases Indigenous peoples’ risk of becoming a victim of human trafficking. Recent evidence indicates that Indigenous females are disproportionately represented among victims of trafficking.^{Footnote 25} Released in 2019, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (“the Report”) highlighted the many factors that make Indigenous women and girls more vulnerable to sexual exploitation and trafficking.^{Footnote 26} Intersecting factors that contribute to the disproportionate representation of Indigenous women andgirls among those who have been trafficked for the purpose of sexual exploitation include: systemic racism, violence against Indigenous women and girls, inter‑generational trauma from colonization (e.g., Indian Residential Schools), lack of access to social and economic resources and colonial assimilation policies and marginalization of Indigenous women through the Indian Act.^{Footnote 27} The Report’s Calls for Justice reinforce the need to address the disproportionately high rates of violence against Indigenous women and girls, including trafficking for sexual exploitation and other forms of sexual exploitation. The Report also specifically notes the need to prevent the recruitment of children in care (child welfare agencies, group or care homes or foster situations) into the sex industry.^{Footnote 28}

1.6.3 Offenders

In Canada, men and boys have represented the majority of individuals accused in human trafficking incidents between 2011 and 2022 (82%), with men aged 18 to 34 accounting for almost two-thirds (64%) of all persons accused of human trafficking.^{Footnote 29} Between 2011 and 2022, among the youth aged 12 to 17 accused of human trafficking, a larger proportion were girls (55%) than boys (44%).^{Footnote 30}

Traffickers use a variety of methods to lure and groom their victims, including false promises, the pretence of a romantic relationship or positioning themselves as a person of trust in the victim’s life to gain control.^{Footnote 31} Once a trafficker has established control, they use a variety of tactics to maintain control, including sexual and physical assault, manipulation, psychological abuse, confinement, and threats of violence.^{Footnote 32}

1.6.4 Addressing Offending Committed by Trafficking Victims

The Inter-Agency Coordination Group against Trafficking in Persons articulates the “principle of non-punishment” as follows:

Trafficked persons should not be subject to arrest, charge, detention, prosecution, or penalized or otherwise punished for illegal conduct that they committed as a direct consequence of being trafficked.^{Footnote 33}

This principle is an important consideration when responding to offences committed by persons who were themselves victims of trafficking. Responding to this type of offending can be complex as the circumstances and type of offending can vary significantly from case to case. Trafficking victims may commit a range of offences in the context of being trafficked, including immigration offences, drug possession, and other trafficking-related conduct, including trafficking others. A number of factors are relevant to whether a charge should be laid or a prosecution should be pursued, including:

• The importance of fostering a relationship of trust between the victim who has offended and authorities
• The importance of identifying and holding to account that person’s trafficker
• The importance of ensuring that the victim who has offended has opportunities to heal
• Whether the victim who has offended was compelled to commit the offence, including through manipulation, psychological pressure or influence
• The severity of the offending at issue, e.g., immigration or drug possession offences vs. offences that cause others serious harm
• Whether public safety, in particular the safety of other vulnerable persons, would be jeopardized in the absence of a criminal justice response

These issues are addressed in more detail in Chapters 3 and 4.

1.7 Federal/Provincial Strategies to Combat Human Trafficking

In 2019, the Government of Canada launched a five-year National Strategy to Combat Human Trafficking to strengthen Canada’s efforts to prevent human trafficking, protect victims, prosecute offenders, build partnerships to assist in ensuring a comprehensive response and empower victims and survivors by enhancing supports and services.^{Footnote 35}

Some provinces have also implemented their own action plans and strategies to combat human trafficking.

British Columbia:

• British Columbia’s Action Plan to Combat Human Trafficking concluded at the end of 2016. The Action Plan laid a strong foundation for ongoing actions to combat human trafficking in British Columbia, including those that raise awareness, provide training and education, foster community-led responses, and improve service coordination to trafficked persons.: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/victims-of-crime/human-trafficking/about-us/action-plan.pdf
• The Province provides over $40 million in annual funding to support over 400 victim service and violence against women programs across British Columbia. This includes programs that provide assistance to trafficked persons
• The Province also funds VictimLinkBC, which is a toll-free, multilingual, confidential service available across British Columbia and Yukon 24-hours a day, seven days a week and can be accessed by phone, text or email. It provides information and referral services to all victims of crime and immediate crisis support to victims of family and sexual violence, including victims of human trafficking exploited for labour or sexual services: https://www2.gov.bc.ca/gov/content/justice/criminal-justice/victims-of-crime/victimlinkbc
• Through one-time grants, the Province supports non-profit organizations across British Columbia in the development and delivery of community safety and crime prevention projects, including training, prevention, and awareness initiatives as well as response services for victims, including victims of human trafficking. Grant funding is provided through programs such as the Civil Forfeiture Crime Prevention and Remediation Grant Program: https://www2.gov.bc.ca/gov/content/safety/crime-prevention/community-crime-prevention/grants

Alberta:

• Alberta’s Action Plan to Combat Human Trafficking was established in 2019. The nine-point Action Plan aims to protect at-risk individuals from being trafficked in Alberta, empower survivors of trafficking, and provide new remedies to deal with traffickers: https://www.alberta.ca/human-trafficking-action-plan.aspx
• The Protecting Survivors of Human Trafficking Act was proclaimed in May 2020: https://www.alberta.ca/protecting-survivors-of-human-trafficking.aspx. This legislation proclaimed an awareness day in solidarity with other provinces, enforces standard definitions, allows victims to sue their traffickers via civil tort, offers additional remedies including a specialized human trafficking protection order, and allows law enforcement warrant permitting entry without notice to the respondent
• Alberta adopted February 22nd as the National Human Trafficking Awareness Day within provincial legislation to continue to bring awareness on the issue
• Alberta’s Human Trafficking Task Force provided recommendations on how to best implement Alberta’s action plan to combat human trafficking: https://www.alberta.ca/human-trafficking-task-force.aspx
• In 2022, Alberta Treasury Board approved $22.8 million over 4 years to address and implement the Alberta Human Trafficking Task Force’s recommendations, including:
  • Establishing and implementing an Office to Combat Trafficking in Persons in partnership with community
  • Creating a Centre of Excellence for research and data collection
  • Supporting new grant programs for coordinated survivor supports and Indigenous-led services
  • Providing sustainable funding for civilian positions on the Alberta Law Enforcement Response Teams to support victims and survivors through the investigation process

Ontario:

• Ontario’s anti-human trafficking strategy 2020-2025 will raise awareness of the issue through training and public awareness campaigns, empowering frontline service providers to prevent human trafficking before it occurs and take action early, supporting survivors through specialized services, and give law enforcement and prosecutors the tools and resources they need to hold offenders accountable: https://www.ontario.ca/page/ontarios-anti-human-trafficking-strategy-2020-2025
• As part of this strategy, Ontario has formed a Human Trafficking Prosecution Team, consisting of a Provincial Coordinator and 14 specialized Crown prosecutors who are dedicated to human trafficking prosecutions – both sexual exploitation and labour trafficking – as well as pre-charge consultation with police across the province, education and training
• The Ontario Police College provides a human trafficking session in the Basic Constable Training. The Ontario Police College also provides a specialized Human Trafficking Investigation course developed with police stakeholders, experts and individuals with lived experience. Criminal Intelligence Service of Ontario offers an Advanced Human Trafficking Investigators Course

Quebec:

• Quebec’s Government Strategy to Prevent and Counteract Sexual Violence (2016-2021) is comprised of three interdependent, complementary themes: 1) Prevent; 2) Intervene with respect to the psychosocial, medical, legal, police and correctional dimensions, and 3) Develop knowledge and share expertise to act more effectively: http://www.scf.gouv.qc.ca/fileadmin/Documents/Violences/Brochure-ViolencesSexuelles-EN.pdf
• Government Action Plan 2021-2026 in response to the recommendations of the Select Committee on the Sexual Exploitation of Children
• Integrated Government Strategy 2022-2027 (against sexual violence, intimate partner violence and to rebuild trust)

Nova Scotia:

• New integrated policing unit that conducts investigations and provides education to police officers and the public
• Nova Scotia has also created a dedicated Human Trafficking Crown prosecutor position and is providing additional supports to child welfare through training for foster parents and specialized placements for trafficked youth in care
• Nova Scotia has created four new victim support navigators who will work to support Nova Scotian and Indigenous communities directly
• Funding is being directed to non-profit groups to provide prevention programs and services for victims: https://novascotia.ca/news/release/?id=20200220001

1.8 Global Strategies to Combat Human Trafficking

Human trafficking, and responding to it, has been and continues to be viewed from different perspectives including: (a) human rights, (b) migration, (c) gender-based violence, (d) crime/organized crime, and (e) labour and development. Regardless of perspective, however, the globally accepted response paradigm, as reflected in the Trafficking Protocol, is a multi-disciplinary framework involving prevention, victim protection, offender prosecution and broad partnerships. This broad framework provides the flexibility required to incorporate and implement a variety of strategies to advance and defend core human rights, gender equality and economic security, and to prevent crime. Indeed, a variety of strategies have been developed by the international community in an effort to advance these goals in the context of responding to human trafficking.^{Footnote 35}

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