Chapter 2: The Law

TIP continues to garner significant attention, both domestically and internationally. Despite the recent attention, TIP, often referred to as a modern form of slavery, is not a new phenomenon. Slavery, servitude, forced labour and similar practices have existed in one form or another for thousands of years. The scope, incidence and impact of TIP has galvanized international interest in the last three decades and has made combating it a priority for the international community.

Prior to the enactment of trafficking-specific criminal offences, Canada’s criminal laws addressed TIP through offences of general application, including but not necessarily limited to, kidnapping (subsection 279(1)), forcible confinement (subsection 279(2)), sexual assault (sections 271 to 273), extortion (section 346) and the organized crime (sections 467.11-467.13) and sex trade offences (in particular, now repealed section 212, replaced by sections 286.2 and 286.3 in 2014).Footnote 36 These offences continue to be used in TIP cases, depending on the facts of the case.

Canada’s first specific offence targeting TIP was enacted in 2002 as part of the Immigration and Refugee Protection Act (IRPA). In addition to its role in fostering and reinforcing the legislative objectives in section 3 of the Immigration and Refugee Protection Act, the enactment of this offence also reflected Canada’s implementation of its international obligation to criminalize TIP under the UN Trafficking Protocol (see Chapter 1 for more information). Section 118 of the IRPA prohibits TIP and is punishable by life imprisonment and/or a fine not exceeding $1 million. This offence is limited to the trafficking of persons into Canada.

Subsequently, in 2005, Canada enacted additional Criminal Code offences to more comprehensively address TIP in all its manifestations, as well as to target related culpable conduct. Former Bill C-49, An Act to amend the Criminal Code (trafficking in persons) (S.C. 2005, c. 43) came into force on November 25, 2005 and created three indictable offences to strengthen the criminal law response to TIP: section 279.01 (main TIP offence), section 279.02 (financially benefiting from TIP) and section 279.03 (withholding or destroying documents to commit or facilitate TIP). Furthermore, in 2010, the new offence of trafficking in children (section 279.011) was enacted, which is substantively the same as the main TIP offence (section 279.01), but imposes higher mandatory minimum penalties.Footnote 37 In 2012, the TIP provisions of the Criminal Code were further amended to:

  1. enable the Canadian prosecution of Canadian citizens or permanent residents who commit, outside Canada, any Criminal Code TIP offence (subsection 7(4.11))
  2. clarify the meaning of “exploitation” as defined in section 279.04, by creating an interpretive provision to assist in applying the definition of exploitation. This change is discussed in more detail in section 2.5, which explains the elements of TIP offencesFootnote 38

Further amendments were enacted in 2014, which added mandatory minimum penalties of four and five years, depending on circumstances, to the main TIP offence in the Criminal Code (section 279.01). In addition, these amendments increased the maximum sentences and added mandatory minimum penalties to the material benefit offence as well as to the documents offence where the victim is a child (subsections 279.02(2) and 279.03(2)).Footnote 39

Most recently, in 2019, subsections 279.02(1) and 279.03(1) were hybridized, an evidentiary presumption was enacted to assist prosecutors in proving human trafficking, and the reverse onus for forfeiture of proceeds of crime was extended to apply to the human trafficking offences.Footnote 40

2.1 Trafficking in Persons Criminal Code Offences

As a general matter, the human trafficking offences were formulated in such a way as to capture the different actors along the trafficking continuum, including those who do not directly exploit the victim’s labour or services. As will be set out in more detail below, a conviction for trafficking can be entered for conduct that involves one of the prohibited acts coupled with the intent to exploit the victim or facilitate the exploitation of the victim by someone else.

Although party liability provisions could likely capture much of the conduct along the continuum if the offences had been more narrowly crafted, the offences treat as the principal offender anyone who does what is prohibited, without recourse to the concept of party liability. Party liability provisions (see section 21 of the Criminal Code and section 131 of the IRPA) should be kept in mind, though, as individuals who may not have committed any of the prohibited acts may nonetheless assist others to do so, and could be targets for investigation and prosecution as well (provided that there is evidence to suggest that the assistance was rendered with the requisite level of intent to exploit the victim or facilitate their exploitation by someone else). For example, a person may assist another person in recruiting victims, knowing that the intended purpose is that the victim be exploited, without actually engaging in the recruiting activities themselves.

2.2 Section 279.01: Trafficking in Persons

270.01 Every person who recruits, transports, 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

Section 279.01 contains the following key elements:

  1. Commission of one of the prohibited acts
  2. The mental elements of either: (a) intending to exploit the victim; or, (b) intending to facilitate the victim’s exploitation by someone else

2.2.1 Prohibited Acts

The accused must be shown to have engaged in one of the “acts” prohibited by section 279.01. Section 279.01 sets out a number of specific, itemized acts (recruits, transports, transfers, receives, holds, conceals or harbours a person), as well as a residual category for the actus reus element that characterizes rather than itemizes the prohibited conduct (exercises control, direction or influence over the movements of a person).

Recruits, Transports, Transfers, Receives, Holds, Conceals or Harbours

These acts reflect the various stages of TIP as described in the previous chapter: recruitment, transportation or harbouring. The offence captures the entire trafficking continuum; engagement in just one of these trafficking “stages” is sufficient. Appellate courts have found that the act elements are disjunctive; an accused need only engage in one of these acts for the prohibited purpose.Footnote 41 Notably, the terms recruits, holds, conceals and harbours are also used disjunctively in the procuring offence (section 286.3), enacted in 2014. In that context, the Ontario Court of Appeal has interpreted the term “harbours” to include the provision of shelter, whether secretly or not.Footnote 42

Exercises Control, Direction or Influence over the Movements of a Person

The offence can also be made out where the accused “exercises control, direction or influence over the movements of a person.” Rather than itemizing specific actions, this residual aspect of the actus reus of the offence characterizes the nature of conduct in terms of the relationship between the accused and the victim in relation to the victim’s mobility. The Ontario and Quebec Courts of Appeal have interpreted this phrase as follows:

Control does not necessarily mean complete physical control over or the absence of any choice by the complainant and can also refer to psychological coercion… [W]hile the terms, “control”, “direct” and “influence” involve different degrees of coercion, those terms all “evoke a scenario in which a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movements.” It is not necessary that control be complete, constant and absolute.Footnote 43

This phrase appears in both the now-repealed procuring offence of the Criminal Code (paragraph 212(1)(h)), as well as in the new procuring offence (section 286.3).Footnote 44 It has been judicially interpreted in the context of paragraph 212(1)(h) as follows:

Interpreting the same phrase in the context of section 279.01, the Quebec Court of Appeal followed this approach in its 2013 Urizar decision,Footnote 46 as did the Ontario Court of Appeal in its 2019 Gallone decision:

Consistent with [Perrault c. R, [1997] [R.J.Q. 4 (Q.C.C.A.)] I would define “exercises influence” over the movements of a person for the purposes of s. 279.01(1) as something less coercive than “exercises direction”. Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it. I also agree with the Court of Appeal of Quebec’s comment in Urizar, at para. 74, that “exercises control, direction or influence over the movements of a person” generally suggests a situation that results from a series of acts rather than an isolated act.Footnote 47

There are a variety of ways in which physical and psychological control can be exercised over a person’s movements depending on the facts of the individual case, some of which include providing the victim with drugs to keep them intoxicated during the period of exploitation, acting in a physically aggressive way towards the victim, retaining the victim’s money, pressuring the victim to provide sexual services in exchange for money, becoming angry with the victim when they ask for money or refuse to provide sexual services, arranging the clients and locations, preventing the victim from leaving the place where they are seeing clients, driving the victim to see clients, and emotionally manipulating the victim through their romantic relationship to keep them with the trafficker and have them return to the trafficker on the occasions that they left.Footnote 48

2.2.2 Mental Element: “For the Purpose of Exploiting or Facilitating Exploitation”

Whichever aspect or element of the actus reus is alleged, it must be proved that the alleged act was done either for the specific purpose of exploiting another person or for the specific purpose of facilitating their exploitation by another person. It is the exploitative purpose that sets TIP apart from other crimes. As explained by the Ontario Court of Appeal, this part of the offence reflects the object the accused seeks to attain, the reason for which the act element is done or the accused’s intended result. Specifically, actual exploitation is not an “essential element” of the offence and need not be proved; only the intention to exploit or to facilitate another person’s exploitation must be proved.Footnote 49

Accordingly, reference must be made to the defined meaning of “exploitation” for the purposes of the TIP-specific offences:

279.04 (1) For the purposes of sections 279.01 to 279.03, 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
  • (c) abused a position of trust, power or authority

(3) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.

The first way that “exploitation” can be proved (i.e., under subsection (1)) accounts for the majority of TIP cases. Organ or tissue removal as a form of TIP will be discussed separately below.

“For the Purpose of”

“For the purpose of” signifies the mental element for TIP offences (sections 279.01 and 279.011). That is, an accused must be found to have committed one of the acts “for the purpose of” exploiting or facilitating the exploitation of another person. The Supreme Court of Canada has considered the meaning of “for the purpose of” on various occasions. In R v Hibbert,Footnote 50 for instance, the Court noted that it is impossible to ascribe a single fixed meaning to the term “purpose” and, therefore, interpreting this term in a particular statutory context requires consideration of Parliament’s intention in using the word in a particular context. However, it is clear that “for the purpose of” requires a subjective state of mind directed to the prohibited consequence (i.e., the exploitation or facilitation of exploitation of a person) — either an intention to have the prohibited consequence come about, or knowledge that its occurrence was a virtual certainty. This position was adopted by the Supreme Court of Canada in R v Khawaja,Footnote 51 as well as in relevant trafficking jurisprudence.Footnote 52

Exploiting or Facilitating Exploitation

“For the purpose of” must be combined with either “exploiting” or “facilitating the exploitation of”:

“Facilitating” or “to facilitate” is used in several offences in the Criminal Code, including: section 83.19, which prohibits the facilitation of terrorist activity; section 172.1, which prohibits the luring of a child; section 467.11, which prohibits participating in the activities of a criminal organization; and, section 286.3, which prohibits recruiting, holding, concealing or harbouring another person for the purpose of facilitating an offence under section 286.1 (purchasing sexual services). Generally speaking, in these contexts, “facilitation” has been interpreted to mean “to help bring about or to make it easier or more probable or to assist.” See, for example, R v LegareFootnote 53; R v LindsayFootnote 54; R v Khawaja.Footnote 55 Furthermore, the Ontario Court of Appeal has interpreted “for the purpose of facilitating” in the context of section 286.3 as follows:

A “purpose” requirement imposes a “high” “specific intent” mens rea: R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at paras. 45-47; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 32. More than knowing facilitation is required: “the accused must specifically intend his actions to have this general effect” (emphasis in original): Khawaja, at para. 46; see also R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 16-18.Footnote 56

2.2.3 Exploitation

Section 279.04(1): 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.

The human trafficking offence requires proof that the accused intended to cause the victim to provide their labour or services through conduct that would cause a reasonable 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 did not provide that labour or service. In this context, “cause” means “to produce an effect, bring about or encourage something”, not “force” or “compel”, and subjective fear on the part of the victim is not required.Footnote 57 Furthermore, the definition has both objective and subjective elements:

Ultimately, the focus is on the effect of the conduct in a given case on the hypothetical “reasonable” victim. Accordingly, both the nature of the conduct and the context in which the accused engages in that conduct are integral to the determination of that conduct’s expected effect on the victim.

The Ontario and Quebec Courts of Appeal noted that the following circumstances may be relevant when assessing whether conduct amounts to exploitation as defined in section 279.04:

Other examples of evidence that may assist in proving that the accused’s conduct would cause a reasonable apprehension of fear in a person in the victim’s circumstances include: evidence of seemingly discreet conduct that appears innocuous in isolation,Footnote 61 such as a warning that a foreign national victim could be deported if they fail to comply with the demands of their trafficker, and evidence of any history of abuse between the accused and the victim.Footnote 62 Evidence of the use of threats, force or other forms of coercion is also indicative of exploitation, but is not necessary to demonstrate exploitation. Providing a victim who has an addiction with that drug after the victim provides sexual services for clients can be a form of coercion that establishes exploitation.Footnote 63

To address concerns that the definition of exploitation may be difficult to understand, subsection 279.04(2) was enacted to provide a non-exhaustive list of factors that a court may consider in determining whether an accused exploits another person. These factors include the use or threatened use of force or another form of coercion, deception or abuse of a position of trust, power or authority. The Ontario Court of Appeal held that this provision clarifies (but does not change), the definition of exploitation, including by indicating that the definition encompasses psychological pressure.Footnote 64

Coercion is best conceptualized as an umbrella term encompassing the use of means for a specific purpose. Coercion need not be limited to physical force, and as relevant jurisprudence demonstrates, extends to acts that emotionally or psychologically restrain a victim.Footnote 65 This is consistent with the Supreme Court of Canada’s interpretation of “coercion” in the context of freedom of religion:

Coercion includes not only blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.Footnote 66

Significantly, the Ontario Court of Appeal has held that the term “exploitation”, as defined in section 279.04: was intended by Parliament to be interpreted broadly; is applicable equally to individual offenders and sophisticated criminal organizations; and, captures both physical and psychological forms of exploitation.Footnote 67

Labour or Services

The accused must be shown to have committed one of the prohibited acts with the intent of causing the victim to provide, or offer to provide, their labour or services, or to have committed one of the prohibited acts with the intent of facilitating another person causing the victim to provide their labour or services.

“Labour or services” includes all forms of sexual and domestic services, and any kind of labour, such as work in the agriculture, restaurant, construction or any other industry. Labour or services provided toward criminal ends, such as participation in grow operations or transporting drugs, is also included. In short, trafficking may occur within any industry, regardless of its legality. When trafficking occurs in an illegal industry, trafficking victims may be more likely to commit criminal offences themselves, such as drug possession or trafficking, immigration offences and trafficking offences (e.g., recruiting others for the purposes of exploitation), depending upon the facts of the case. For more information on these types of cases, please see Chapters 3 and 4 (sections 3.9.1 and 4.3).

Safety

The Ontario and Quebec Courts of Appeal have held that the term “safety” is not limited to the state of being protected from physical harm, but extends also to psychological harm.Footnote 68

Someone Known to the Victim

Someone known to a victim can include their family members such as a mother, father, brother, sister, child or a friend: R v DupuisFootnote 69 and R v Dunnett.Footnote 70

Organ or Tissue Removal

Subsection (3) of the definition of exploitation in section 279.04 allows for an alternate way to prove exploitation, which applies where a victim has had organs or tissue removed by means of deception or the use or threat of force or of any other form of coercion. There have been no known cases of TIP for the purpose of organ removal in Canada. Canada’s regulated health-care system may provide safeguards in this regard.

On December 15, 2022, new organ trafficking offences came into force.Footnote 71 Although these offences apply to trafficking in organs, as opposed to trafficking in human beings, they may be used in human trafficking cases that involve organ removal. They criminalize:

These offences have extra-territorial effect, meaning that a Canadian or permanent resident who engages in this conduct abroad can be prosecuted in Canada (subsection 7(4.2)).

2.2.4 Interpretive Provision

279.04(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
  • (c) abused a position of trust, power or authority

Subsection 279.04(2) provides a non-exhaustive list of factors for courts to consider when determining whether exploitation, as defined in subsection 279.04(1), has been made out. The Ontario Court of Appeal has found that this provision was intended to clarify the law, not change it.Footnote 72

The Ontario Superior Court of Justice has also provided guidance on the meaning of this provision:

In subsection 279.04(2)(a), it means that the accused gave a sign or a warning of using force or coercion. "Force" and "coercion" have similar ordinary meanings, although the former is normally restricted to something physical while the latter is more broadly defined. "Coercion", very simply put, means persuasion by power. "Deception" means the act of misleading or making someone believe a falsity. "Position of trust, power or authority" is an expression well known in our criminal law and which appears elsewhere in the CCC.Footnote 73

2.2.5 Evidentiary Presumption

279.01(3) For the purposes of subsections (1) and 279.011(1), evidence that a person who is not exploited lives with or is habitually in the company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation.

Subsection 279.01(3), which came into force in 2019, allows prosecutors to prove one of the elements of the human trafficking offence – that the accused exercised control, direction or influence over the movements of a victim – by establishing that the accused lived with or was habitually in the company of an exploited person.

The Supreme Court of Canada upheld a similar evidentiary presumption in the context of now-repealed procuring offences in its 1992 Downey decision (former subsection 212(3); now subsection 286.2(3)).

2.3 Section 279.011: Trafficking of a Person under the age of Eighteen Years

279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, 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 six 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
  • (b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case

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

Elements of the Offence

Section 279.011 is exactly the same as section 279.01, except that higher mandatory minimum penalties apply where it is established that the victim was under the age of 18 years and the accused was aware of that fact. The Crown can prove the accused’s knowledge of the victim’s age by showing that the accused knew the victim was under 18 or was wilfully blind to that fact. Where it is shown that the accused honestly but mistakenly believed the victim was over the age of 18 years of age, the accused can nonetheless be convicted under the primary offence (section 279.01).

2.4 Section 279.02: Material Benefit

279.02 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1), is guilty of

  • (a) an indictable offence and liable to imprisonment for a term of not more than 10 years
  • (b) an offence punishable on summary conviction

(2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.011(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.

Elements of the Offence

This offence requires proof that:

  1. the accused received a financial or other material benefit
  2. the benefit was derived from the commission of a trafficking in persons offence (section 279.01 or section 279.011) and the accused knew that fact
  3. the prohibited conduct in section 279.01 or 279.011 occurred (although a conviction under section 279.01 or 279.011 is not necessary)Footnote 74

The Ontario Court of Appeal has described this offence as prohibiting “profiting from exploitative behaviour”.Footnote 75

The concept of “financial or material benefit” is also used in the definition of “criminal organization” in section 467.1 of the Criminal Code. In that context, the courts in Canada have interpreted the concept of material benefit broadly. In one decision, the Court noted that a material benefit specifically includes, but is not limited to, a financial benefit. Whether something amounts to a material benefit will always depend on the facts of a particular case.Footnote 76

2.5 Section 279.03: Withholding or destroying documents

279.03 (1) Every person who, for the purpose of committing or facilitating an offence under subsection 279.01(1), conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person’s identity or immigration status  — whether or not the document is of Canadian origin or is authentic  —  is guilty of

  • (a) an indictable offence and liable to imprisonment for a term of not more than five years
  • (b) an offence punishable on summary conviction

(2) Everyone who, for the purpose of committing or facilitating an offence under subsection 279.011(1), conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person’s identity or immigration status — whether or not the document is of Canadian origin or is authentic — is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year.

Elements of the Offence

This offence requires proof that the accused:

  1. concealed, removed, withheld or destroyed any travel or identity document, whether legitimate or forged
  2. did any of the above-noted acts with the intention of committing an offence under either subsection 279.01(1) or 279.011(1) or facilitating the commission of such an offence by someone else

It is not necessary to prove that an offence under either subsection 279.01(1) or 279.011(1) was actually committed; the Ontario Court of Appeal has described this offence as prohibiting “preliminary or preparatory conduct” that facilitates control over others.Footnote 77

2.6 Criminal Code Trafficking Offences and the Charter

The constitutionality of the TIP offences has been upheld at the trial level; the Ontario Superior Court of Justice has upheld as constitutional sections 279.01, 279.011 and 279.02 (D’SouzaFootnote 78) and section 279.011 (Beckford and Stone,Footnote 79 and R v AhmedFootnote 80).

2.7 Immigration and Refugee Protection Act

In addition to the Criminal Code human trafficking offences, the IRPA also contains an offence that prohibits the trafficking of persons into Canada:

118(1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.

(2) For the purpose of subsection (1), organize, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.

Specifically, section 118 applies only to international human trafficking cases, i.e., where victims are brought from other countries into Canada. The offence does not, however, require proof of an exploitative purpose; only organizing the victim’s entry into Canada through any of the specified illicit means (abduction, fraud, deception or use or threat of force or coercion) need be proved. The offence may therefore be useful in cases where evidence of bringing victims into Canada through any of these illicit means exists, but it is difficult to prove ongoing exploitative conduct.

In cases involving persons who are brought to Canada where there is evidence of exploitative circumstances, consideration should be given to using the Criminal Code TIP offences, in addition to or instead of section 118. For example, in one case involving a 15 year old girl who was brought to Canada and subjected to domestic servitude, the court acquitted the accused of section 118, finding that the prohibited means could not be proven, although it was acknowledged that exploitative circumstances were present:

Her [the alleged victim’s] workdays were long. Her physical accommodations differed from and were inferior to those of the others in the home. The defense agrees with these facts and even concedes that she was exploited by Canadian standards.Footnote 81

Elements of the Offence

Act Elements
  1. The accused organized the coming into Canada of one or more persons
  2. The accused, in so organizing, employed any of the following means: abduction, fraud, deception, the use or threat of force, or the use of coercion
Organizing

Organizing the coming of persons into Canada extends not only to the means employed to bring persons into Canada, but also to acts related to the harbouring or receipt of persons once they arrive in Canada.

Moreover, other act elements from related offences in IRPA, such as section 117 (organizing illegal entry into Canada), are also likely to apply to prosecutions under section 118. For example, under section 117, organizing has been found to mean to initiate or make arrangements for or to enlist a person or group to enter Canada (R v ChenFootnote 82).

Fraud and Deception

In R v Ng,Footnote 83 the Court agreed with the Crown that the inclusion of fraud and deception is consistent, and complies, with the international instruments to which Canada is a party. However, the Ng decision held that the Crown must show that the accused engaged in specified acts to cause the victim to act to their detriment. The Court relied on the following passage from London & Globe Finance Corp LtdFootnote 84 to reach this conclusion:

To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.Footnote 85

Traffickers may attempt to defraud victims in both non-financial (e.g., with respect to living conditions upon arrival in Canada) and financial ways (e.g., with respect to the payment a victim is promised in return for labour services). The Supreme Court of Canada has interpreted the meaning of “fraud” in a non-financial context. Specifically, in the context of fraud vitiating consent to otherwise consensual sexual activity due to non-disclosure of HIV, the court held that fraud requires dishonesty that results in deprivation:

The first requirement of fraud is proof of dishonesty… The second requirement of fraud is that the dishonesty result in deprivation, which may consist of actual harm or simply a risk of harm.Footnote 86

Where fraud occurs in respect of financial matters, the deprivation that results from the dishonesty would likely be interpreted as risk of deprivation of something of economic value.Footnote 87

Coercion

As discussed above in the context of the Criminal Code TIP offences, coercion is an umbrella term encompassing the use of means for a specific purpose. Coercion is not limited to physical force, and can also extend to acts that emotionally or psychologically restrain a victim.

Mental Element

While there is minimal case law available on the mental element for section 118, in many cases, a strong inference may be drawn by a court that the accused has the requisite intent if the Crown is able to prove the act elements, i.e., organizing the coming into Canada through one of the specified illicit means.

2.8 Other Relevant Immigration and Refugee Protection Act Offences

Other IRPA offences, in addition to section 118, may be used in cases involving the exploitation of foreign nationals:

2.9 Immigration and Refugee Protection Act Trafficking Offence and the Charter

In Ng,Footnote 88 the Court confirmed that the means of fraud or deception as specified in subsection 118(2) are not constitutionally overbroad or vague.

2.10 Jurisdiction

A victim of human trafficking may be trafficked entirely in one province or throughout multiple provinces. Where all of the conduct alleged to make out the human trafficking offence occurs exclusively in one province, the charge must be laid in that province by virtue of section 478 of the Criminal Code. However, where different elements of the human trafficking offence are committed in different provinces, each of those provinces would have jurisdiction to try the offence pursuant to section 476(b) of the Criminal Code. This section establishes jurisdiction on a broad basis over interprovincial offences. If any element or part of the offence may have been committed in a particular province, that province has jurisdiction over the offence.Footnote 89 This means that a court has jurisdiction to try an offence commenced in one province and completed in another.Footnote 90

Investigations into interprovincial human trafficking require coordination between law enforcement and prosecutors in the various jurisdictions where the trafficking took place to determine where the charge(s) should be laid and to allow for evidence collection in the various jurisdictions involved. There should only be one prosecution that encompasses all of the trafficking conduct committed in the various provinces. Police and prosecutors must ensure that the Information is drafted to include the start date and end date of all conduct that forms part of the human trafficking offence, regardless of the province in which it occurred. The Information must also allege that the offence was committed in the province where the charge is laid “and elsewhere in Canada” to ensure that the Crown is able to lead evidence at the preliminary hearing and trial of what happened to the victim in the other provinces where they were trafficked.

In cases where both the IRPA and Criminal Code human trafficking offences are implicated, federal and provincial Crown prosecutors must work together, given that federal prosecutors are responsible for enforcing IRPA offences and provincial Crown prosecutors are responsible for enforcing Criminal Code offences.

2.11 Relevant Jurisprudence

Please see Annex A for an overview of the jurisprudence considering both the Criminal Code and IRPA trafficking provisions by legal issue. Please see Annex B for an overview of sentencing jurisprudence.