Chapter 3: Guidelines for police

This chapter focuses on the role of the police in human trafficking investigations and prosecutions. It provides information on conducting interviews with victims of human trafficking, with a particular focus on the unique considerations that exist in these cases. Common indicators of human trafficking are also described to aid in the identification of human trafficking cases and the collection of evidence. Guidelines on the assessment of risk in particular cases are also examined and an overview of laying a charge and preparing the report to a prosecutor is provided. Finally, considerations related to international human trafficking cases are discussed. The chapter’s overarching objective is to supplement a police officer’s expertise by providing information that is particularly relevant to human trafficking cases.

3.1 Working with Traumatized Victims

Human trafficking is known to result in severe trauma for victims. Trauma has been described as follows:

Traumatic events overwhelm the ordinary systems of care that give people a sense of control, connection and meaning. Traumatic events are extraordinary, not because they occur rarely, but because they overwhelm the ordinary human adaptations to life… They confront human beings with the extremities of helplessness and terror and evoke the responses of catastrophe.

A traumatic event could be criminal in nature, a sexual assault, kidnapping or witnessing a murder. It could also be a natural disaster such as a hurricane or flooding or an accident. One does not have to live through or directly experience an event to be traumatized; one can experience trauma by witnessing an event — such as a terrorist attack or a hate crime — from a distance or even through different media such as television or news reports.Footnote 91

Victims of human trafficking may have experienced severe trauma, possibly over long periods of time. The trauma will impact how they are able to function in general, but also how they are able to work with the criminal justice system and support services. It is critical that law enforcement understand the neurobiology of trauma in order to better support victims.

Traumatic events… are encoded (converted) [into memories] differently than more routine, everyday experiences in life. It is well known within the scientific and psychological communities that human memory and recall do not function like a tape recorder, faithfully recording events later to be recalled on command. Our memories are fallible and have gaps and inconsistencies. As a result, we recall and narrate traumatic events differently than routine events.Footnote 92

Key symptoms of trauma likely to have serious implications can include:

  1. De-personalization of the abusive experience and coming to regard it as having happened to another person
  2. Fragmentation of memory, perception, feeling, consciousness and sense of timeFootnote 93
  3. Difficulty in providing clear and consistent statements to investigatorsFootnote 94
  4. Tendency to fill in memory blanks by making up plausible elements of a traumatic situation

Due to these symptoms of trauma, one of the optimal methods for working with victims is to help them feel stable by providing security and assistance. Another method is to start the investigation only after the victim feels that they are in a stable situation. In particular, experts have noted that two full sleep cycles may be necessary for the episodic memory circuitry to consolidate information that was encoded at the time of a trauma.Footnote 95

Given the complexities and unique needs of victims of trafficking, they often require specialized support following their experience. Non-governmental organizations may have the expertise and experience to assist in meeting victims’ practical needs for food and shelter. They can also arrange psychological support, translation services, immigration information, etc. Some communities also have government programs and services available to victims.

3.2 Victim Interview

When working with victims of human trafficking, investigators should adopt a Trauma Informed Response.Footnote 96 This is an approach to engaging people who are experiencing or have experienced trauma, that recognizes the presence of trauma symptoms and acknowledges the role that trauma has played in their lives. Trauma-informed practices may assist in moderating the negative outcomes associated with the involvement of law enforcement and/or the legal system because they are less likely to be experienced by victims as punitive, hostile, or disempowering. Such an approach is more likely to avoid common pitfalls like re-traumatization and withdrawal of cooperation.

Trauma-informed practices include:

The goal of the interview should be to establish trust and instil in the victim a sense of security, while gathering the necessary facts related to potential criminal charges. It is important to always use proper interview techniques and, when possible, use an interviewer who has been trained in trauma-informed interviewing techniques. When needed, use an interpreter and, where appropriate, provide the victim with any other services and supports they may need. The location of the interview must be considered. Ensure a safe and comfortable environment for the victim, preferably in a soft interview room if available. Courts have come to expect in depth civilian witness statements to be audio and video recorded, unless there is good reason to depart from this best practice. Audio recording a statement ensures that whatever the interviewer and interviewee say is captured, while a video recording allows the trier of fact to assess demeanor and nonverbal communication exhibited during the interview. In certain circumstances, videotaped statements can be admitted into evidence under subsection 540(7) of the Criminal Code or the principled exception to the hearsay rule. In addition, the video recorded evidence of children can be admissible pursuant to section 715.1 of the Criminal Code. Statements given under oath may also become admissible in the event the victim does not attend Court or recants their statement.

Trauma-informed methods are more likely to establish a relationship of trust with the victim, which can take time and patience. Because trauma is subjective,Footnote 98 being neutral and open to the victim’s story is often key. In addition to utilizing trauma-informed practices, investigators should adopt a Victim-Centred Approach, meaning that a systematic focus should be placed on the needs and concerns of the victim to ensure the compassionate and sensitive delivery of services in a nonjudgmental manner. It seeks to minimize re-traumatization associated with the criminal justice process by engaging victim advocates and service providers to address the victim’s needs and provide support. The ways in which trauma is processed in the brain may make it difficult for some victims to present consistent, chronological statements about what happened to them. Inconsistent statements should not automatically indicate a lack of credibility on the victim’s part. The trauma they undergo can lead to, among other things, fractured memories and unconscious contradictions.Footnote 99 In some situations, an inability to provide consistent or coherent statements can be an indicator of the trauma that the victim has experienced.

Many victims of trafficking have trouble recalling and talking about particular events due to the impacts of the trauma they have experienced. As a result of the effects of trauma on the brain and on memory, victims may also exhibit inconsistencies and other gaps in how they recount their experience and answer questions. That is why a free narrative is so important. Its main purpose is to encourage the victim to recall and talk about relevant events in their own words. As trafficking offences often take place over time, inviting the victim to tell a chronological story can be useful, though it is important to remember that the effects of trauma on memory may make chronological accounting difficult. Avoid the temptation to jump in if the victim stops talking and a moment of silence occurs. The victim may simply be attempting to gather their thoughts and trying to recount events in their own mind. Give them the time to do that. Often they will start talking again without any further questions. Confusion is common; if it appears, ask for clarification, being aware that the answers may remain imprecise.

At the end of the interview, the victim should be offered the opportunity to ask questions and address any misunderstandings during the interview:

You may wish to offer a written or electronic resource to the victim as they may not recall all the information provided to them. Here is one example from the Policy Centre for Victim Issues at Justice Canada: https://canada.justice.gc.ca/eng/cj-jp/victims-victimes/index.html.

For more resources on trauma-informed practices, please see:

3.2.1 Victim Mindset

Being empathetic and attempting to understand and respond to the issues that affect the victim(s) will help establish a good rapport (e.g., by asking “Is there anything you need before we start?”, “Is there anything I can do to help you to feel safer?” and even “Are you hungry or thirsty?”). The officer should be looking for ways to help remove any obstacles that make the victim feel trapped in the trafficking situation. Collaboration with partners, such as victim services providers, can help a great deal with this.

In some cases, victims may purposefully not respond truthfully to questions. Some may provide prepared and rehearsed responses, and others may not talk at all. There are many reasons why a victim may not respond or tell the truth, including that they may:

In cases involving foreign national victims, victims may worry about their immigration status in Canada and/or fear being deported. They may also be concerned about the continued availability of social services due to their legal status in Canada.

3.2.2 Victim-Trafficker Relationship

To better understand the mindset of trafficking victims and why the trafficked person may make excuses for the trafficker, rationalize the trafficker’s behaviour or feel responsible for the abuse they have endured, it is important to be aware of the nature of the relationship between the victim and the trafficker in each case. Traffickers identify and target a person’s vulnerabilities to gain trust and form a bond. They often identify and fulfill a person’s needs, and then use that dependence to manipulate, control and exploit them. Techniques used to target, recruit, lure and groom victims often rely on deception and psychological forms of coercion.

Traffickers often begin with getting to “know” the person, building trust and reliance by filling a void in the person’s life, making the victim feel like they know them or believe that they are their friend, or romantic partner, etc., while the entire evolution of the relationship is fabricated with the intent to exploit the victim. It is also not uncommon for individuals to be lured and groomed with the promise of a relationship. According to recent statistics, the large majority (91%) of victims of human trafficking knew the person who was accused in the incident. For 22% of victims of human trafficking, the accused person was a casual acquaintance, and 34% of victims were trafficked by a current or former intimate partner.Footnote 100

Some people who are trafficked are controlled and monitored constantly and do not have the opportunity to ask for help or they are afraid to do so. They may also be manipulated into believing that the trafficker is the only person who cares about them and that they are best off staying with their trafficker. Often, the bond between the victim and the trafficker develops into an intense attachment, referred to as trauma bonding. For some victims, this relationship could be the first time they have experienced love and/or affection. Once the relationship has been established, the cycle of abuse alternates between love and affection, anger and violence. The trafficker often controls and manipulates the victim using emotional abuse, lies, threats, violence, isolation and by taking control of the victim’s identification, documents and/or money.Footnote 101

3.2.3 Victim’s Basic Needs

It is important to ensure the well-being of the victim at the outset. This should be done with the assistance of service providers (see Chapter 6 for more information on victim services), who can work with the victim to ensure they have access to:

For needs like housing, clothing and personal items, investigators can contact local victim services or other non-governmental organizations. A listing of victim serving organizations can be found on the Justice Canada Victim Services Directory: https://www.justice.gc.ca/eng/cj-jp/victims-victimes/vsd-rsv/sch-rch.aspx. A list of available anti-human trafficking services and supports can be found through the Canadian Human Trafficking Hotline: www.canadianhumantraffickinghotline.ca or 1‑833-900-1010.

Victims of human trafficking who are foreign nationals without legal status in Canada may apply for a special Victims of Trafficking in Persons Temporary Resident Permit (VTIP TRP). This special permit provides temporary immigration status in Canada for 180 days and can be renewed. See section 3.5 Working with Foreign National Victims, for more information on VTIP TRPs.

3.2.4 Preparation for the Interview

It is important to be patient and wait until the victim is prepared for the interview, to ensure that their needs have been met and concerns addressed, and that a level of trust and good rapport have been established. Law enforcement may have to meet with the victim on several occasions over a period of time to build trust and rapport prior to conducting a formal interview. This may not be possible when law enforcement must proceed quickly: for example, in cases where other victims are in danger, or where perpetrators may flee or evidence be destroyed. In these cases, follow-up interviews may be required. If multiple interviews are required, the same law enforcement officer should conduct all of the interviews, in order to increase trust with the victim and avoid re-traumatizing the victim by having them repeat their traumatic events multiple times.

To the extent possible, carefully prepare for the interview by learning as much as you can about the victim beforehand. A work plan may help to prevent an investigator from missing details which may prove to be important and help to refresh the memory of the victim who might forget certain details. Some elements that could be helpful to include in a work plan include:

Often a trafficked person has been involved with more than one offender or may be in the midst of dealing with multiple traumatic events. It is therefore important that the victim as well as the interviewer clearly establish the focus of the subject matter of the interview.

Once these preliminary considerations are discussed, ensure that the victim understands the following:

Should other topics for investigation arise during the interview, if possible, acknowledge the new topic and request to return to it. Then refocus on the original matter. Once all information about the original focus of the investigation has been collected, the new topic can be explored (this may require conducting a completely separate interview).

For more information about working with victims, see this guide from the Policy Centre for Victim Issues at Justice Canada: https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/res-rech/p1.html

3.2.5 When a Victim Admits to Committing a Crime

The relationship of trust that is established between the interviewer and the victim can result in the victim sharing confidences, or even admitting that they have committed an offence while being trafficked. Trafficking victims may commit a range of offences in the context of being trafficked, including immigration offences, drug possession, and other trafficking-related conduct, such as recruiting and trafficking others.

It is recommended that the victim be informed of their right to remain silent about crimes they may have committed, and that they are participating in the interview as a victim of crime, to avoid compromising the relationship of trust that has been built. Where serious criminal conduct is disclosed during a witness interview, investigators may need to warn the witness of the jeopardy they may face as a result of this disclosure. For considerations on responding to human trafficking victims who offend, please see section 3.9.1.

3.2.6 Suggested Tips for Investigators

Human trafficking investigators should:

3.2.7 Victim Support

In Canada, the responsibility for the protection of victims of crime is shared between the federal and provincial/territorial governments. Numerous programs and services are available to victims of crime, including victims of human trafficking. These range from health care to emergency housing, social and legal assistance, and court support. Legal-aid programs are administered separately by each province and territory, and eligibility is based primarily on financial need. Similarly, social services such as emergency financial assistance, including food allowances and housing, are administered at the provincial and territorial levels and are available to those in need.

It is important for law enforcement to develop and maintain partnerships, and work with local service providers and non-governmental organizations, to ensure that victims’ needs are met; this can include access to food, shelter, trauma counselling, drug and alcohol detox/rehabilitation and medical attention, as well as addressing their safety concerns.

Law enforcement may also contact the Canadian Human Trafficking Hotline at 1‑833‑900-1010. Local services can be found in the Policy Centre for Victim Issues’ Victim Services Directory: https://canada.justice.gc.ca/eng/cj-jp/victims-victimes/vsd-rsv/sch-rch.aspx

Information on Human Trafficking Restraining Orders available to victims who do not want police involvement/trial process or for parents/guardians of youth involved can be found at: https://www.canadianhumantraffickinghotline.ca/1-833-900-1010.

3.3 Working with Indigenous Persons

Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivorsFootnote 102 and accused/convicted individuals. The overrepresentation of Indigenous people is directly linked to historical and ongoing colonial values, laws policies and systems.Footnote 103 The Report of the Royal Commission on Aboriginal Peoples identified the colonial values underlying Canadian criminal laws, policies and practices that have had negative impacts on Indigenous peoples as the greatest contributor to overrepresentation.Footnote 104 “As a result of Canada’s colonial history, Indigenous peoples have been subjected to assimilation policies and practices that have created collective and individual intergenerational trauma resulting in negative impacts on social determinants of health for many.”Footnote 105 The ongoing impacts of colonization have led to mistrust of authorities and institutions, and have made Indigenous women and girls more at risk of becoming trafficked for sexual exploitation. The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls highlights this point. For example:

Jennisha Wilson… described how prior negative experiences with police make Indigenous women reluctant to report violence or trafficking: “There is a significant reluctance for Indigenous women, specifically Inuit, to engage with police because of prior experiences of being seen as a criminal, being blamed, being seen as not a victim, causing it on themselves.Footnote 106

Developing an understanding of the systemic racism and inequality that Indigenous women and girls continue to face is a necessary step toward providing meaningful and culturally relevant support to Indigenous women and girls who come forward to report trafficking conduct. For more information, please consult:

For information on culturally responsive, Indigenous-led victims services, please see:

3.4 Working with Children (persons under 18)

Working with child victims of any crime is challenging. Children are particularly at risk due to their lack of experience and their dependence on and/or trust of adults. Traffickers use various methods of recruitment to lure children into exploitative situations such as enticing them with a “glamorous” lifestyle and opportunities to make money. Children are at risk of being manipulated because of their age and they may also be at risk for other reasons, such as a history of sexual abuse, poverty, low self‑esteem, isolation, lack of a sense of belonging, unstable home life, ethnicity, gender identity or sexual orientation, or other forms of marginalization.

Children who are frequently reported missing are particularly at risk of recruitment and exploitation by traffickers because:

Traffickers may recruit children through people they know and in places where they hang out:

Trafficking cases involving children are always complex. When working with any potential child victim, child protection agencies must be contacted. Investigators should always videotape interviews with children (recall section 715.1 of the Criminal Code). Try to use an officer trained to interview children and consider:

Resources are available online for those who must interview a child without specialized training.Footnote 107

A multi-disciplinary response to working with child victims is recommended. A Child Advocacy Centre (CAC)Footnote 108 is a model of service delivery that brings together a multi‑disciplinary team comprised of law enforcement, child protection investigators, medical and mental health professionals, victim services advocates/workers, and Crown prosecutors, where appropriate, in a child-friendly facility to provide an individualized, coordinated response for children and youth who have experienced abuse. Services offered by CACs include prevention, intervention, treatment and other support/advocacy services. CACs seek to provide a culturally safe, trauma-informed, compassionate and effective response to children, youth and families that require their services, including child victims of trafficking. There are more than 40 CACs at some stage of development across Canada. For more information on CACs, please see: https://cac-cae.ca/organizations/ or the Policy Centre for Victim Issues Victim Services Directory to find a CAC https://justice.gc.ca/eng/cj-jp/victims-victimes/vsd-rsv/index.html.

3.4.1 Specific Concerns Regarding Children Brought to Canada

Everyone, including children, seeking to enter Canada must appear for an examination by an officer to determine whether they have a right to enter Canada or whether they are authorized to enter and remain in Canada. Immigration, Refugees and Citizenship Canada has developed a procedures manual entitled, Recovering Missing, Abducted and Exploited Children.Footnote 109 Canada’s Border Services Agency officers are instructed on the proper procedures to follow during primary inspection at a Port of Entry and, when suspicions arise, to refer the child and any accompanying adult for secondary inspection. Where there is suspicion of a criminal offence, officers are instructed to immediately contact law enforcement.

For more information on the measures in place at Canadian Ports of Entry to ensure that exploited children, or children at risk of exploitation, are identified and protected, please see: http://www.cic.gc.ca/english/resources/manuals/enf/enf21-eng.pdf.

3.5 Working with Foreign National Victims

Foreign nationals may be more at risk of exploitation because they may not have legal status in Canada, may have little or no knowledge of Canadian customs, laws and human rights, and these vulnerabilities may be used by the trafficker to manipulate them into providing labour or services. Victims may react to law enforcement interventions with fear, suspicion of authorities, scepticism, distrust, hesitation and/or hostility towards outsiders, especially law enforcement. They may worry about their immigration status in Canada and/or fear being issued a removal order and deported. They may also be concerned about the availability of services in Canada.

Foreign national human trafficking victims may have different needs than Canadian citizens or permanent residents. Under normal circumstances, a person who does not have status in Canada does not have access to services such as health care or social assistance. Immigration, Refugees and Citizenship Canada has developed a Temporary Residence Permit (TRP) for foreign nationals who are believed to be victims of human trafficking: A Victims of Trafficking in Persons (VTIP) TRP. The VTIP TRP provides temporary legal status and access to Interim Federal Health Care, counselling services and the opportunity to apply for a work permit. There are both short-term (valid for up to 180 days) and long-term VTIP TRPs. To be eligible for a short-term VTIP TRP, a person must be a suspected trafficking victim; to be eligible for a long-term VTIP TRP, reasonable evidence of trafficking is required. Please see section 3.6.1 for indicators of trafficking. Victims are not required to collaborate with law enforcement agencies or testify against their traffickers to obtain VTIP TRPs. For more information on VTIP TRPs, please see: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/permits/considerations-specific-victims-human-trafficking.html.

Foreign national victims should not be deported or repatriated if doing so places them at serious risk of harm. Where such risk has been identified, officers should contact the Canada Border Services Agency to discuss options. Police can offer to disclose information pertaining to the alleged trafficking situation. Documents such as occurrence reports could be helpful in obtaining legal status in Canada, such as through the VTIP TRP, if the victim expresses a desire to stay in Canada.

3.6 Identifying Victims and Evidentiary Issues

3.6.1 Indicators: Sexual Exploitation or Forced Labour

The following indicators may suggest that a victim has been trafficked. Individual indicators may or may not apply, based on the specific circumstances of a particular case. However, evidence of the presence of any of the following indicators may assist in proving that trafficking has occurred. Indicators of trafficking include that the victim:

In addition to the above indicators, child victims of human trafficking may also:

3.6.2 Corroborating Evidence

Corroborating evidence is a major asset in human trafficking cases. For the most part, it lightens the burden on the victim and bolsters credibility and reliability by corroborating the victim’s testimony, establishing a chronology of events or highlighting forgotten details. The addition of all these elements can strengthen the credibility of a case and increase the chance of obtaining a guilty verdict. Video-recorded statements can also assist where victims recant.Footnote 112

Other sources of corroborating evidence (provided it is obtained using legal means) can include anything that confirms the core allegations made by the victim, such as:

3.6.3 Tracking Financial Transactions

In 2016, Canada launched Project Protect, the first flagship public-private partnership involving Canada’s financial intelligence unit, Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), financial institutions and other entities obligated to report to FINTRAC, law enforcement, and various non-profits. Its aim is to target human trafficking for the purposes of sexual exploitation by focusing on the money laundering aspect of the crime. In 2016, FINTRAC published its first Operational Alert in support of Project Protect with 39 money laundering and contextual indicators to assist the private sector in detecting the laundering of illicit proceeds from human trafficking for the purposes of sexual exploitation.

FINTRAC updated the Operational Alert in 2021 with an additional 58 money laundering and contextual indicators drawn from analysis of approximately 100,000 sampled financial transactions linked to human trafficking. It also highlights money laundering methods used and findings specific to three types of human trafficking business models: trafficking out of short-stay locations (e.g., hotels), trafficking out of private residences (e.g., apartments), and trafficking out of illicit storefront businesses offering sexual services (e.g., massage parlours). Findings and indicators related to trafficking foreign nationals for sexual exploitation are also included.

The 2021 updated Operational Alert, which references the original within, can be found on FINTRAC’s public website: https://www.fintrac-canafe.gc.ca/intel/operation/oai-hts-2021-eng

3.7 Risk Assessment

Throughout human trafficking investigations and court proceedings, the safety of the victim or witness should be the main priority for police. When investigating incidents of human trafficking and working with victims:

Trafficked victims usually come to the attention of law enforcement officers in one of the four following ways:

  1. By victims escaping and seeking law enforcement assistance
  2. By law enforcement officers discovering or identifying victims during the course of a non-trafficking related enquiry or activity
  3. By law enforcement officers responding to or identifying victims during the course of a specific counter-trafficking investigation
  4. By victims being brought to police attention by third parties, such as family members or friends, victim support agency staff, or civilians who have witnessed a crime or from whom the victim has sought assistance etc

It is important to consider the safety of any other individuals who may be identified by the facts of the case and who may face risk as a result, or who may be placed at risk by the course of action that the police intend to investigate or to pursue. The most serious risk of danger arises from violent reprisals being carried out by traffickers or their associates against victims and/or their family or loved ones, and this risk must always be the highest priority in the assessment and management process. The consequences of such an occurrence include the real possibility of serious injury and even fatalities, and should never be underestimated.

Investigators must be prepared to adapt to changing risks and levels of risk and to respond accordingly. Thus, risk assessment is a continuous process that should be under constant review.Footnote 115 Investigators should take steps to address any safety risks, including through safety planning or even the witness protection program (see below), if necessary.

3.7.1 Considerations for International VictimsFootnote 116

For information on how to assist foreign national victims who wish to stay in Canada but do not have legal status, please see section 3.5 Working with Foreign National Victims.

For those who choose repatriation, it is important to consider any social, cultural or religious factors that may make repatriation dangerous. These issues need to be discussed with the victim and may inform considerations about whether the victim will remain in Canada.

The availability of support services in the victim’s country of origin should also be considered. No details about a victim’s situation should be shared with support agencies without the victim’s consent. For example, the victim may not want any sexual exploitation to be disclosed to an official body in their home country. Sharing this information may also create a risk of reprisal or re-trafficking.

If using victim support services within the country of origin, try to ensure that the agency has the capacity to assist the victim. The security and capacity of support organizations is variable and must be assessed in each case.

3.8 Protection of Witnesses

Protective measures for witnesses can be provided by federal, provincial or territorial programs or through provisions in the Criminal Code.

3.8.1 Federal Witness Protection Program Act

The Federal Witness Protection Program Act (WPPA) is administered by the Royal Canadian Mounted Police (RCMP). It provides the legal framework to protect persons who are involved in providing assistance to law enforcement. This can include persons who are assisting the RCMP in law enforcement matters or those who are assisting another law enforcement agency, provided an agreement has been entered into between the RCMP and that agency. Services offered to witnesses/victims are decided on a case-by-case basis but can include relocation, accommodation, change of identity, counselling, and financial support to ensure the person's security and help them re-establish their life and become self-sufficient. Canadian law enforcement agencies refer and then work with the Federal WPPA when a victim/witness of human trafficking is deemed eligible under the terms of the program.

In Canada, some provinces operate legislated (Alberta, Manitoba and Saskatchewan), policy-based (Ontario and Québec), or operationally structured (British Columbia, in an integrated team) witness protection programs. A victim of human trafficking could be deemed eligible under the terms of either the federal or provincial programs to receive protection in order to assist law enforcement and prosecution.

3.8.2 Criminal Code

Canada's broad legal framework also includes a variety of provisions to assist a victim or witness to testify in a criminal proceeding against a trafficker. Research demonstrates that when victims are supported through the criminal justice process, there is an increased likelihood that they will support the prosecution.

In Canada, a victim is not required to assist with the investigation or prosecution of traffickers, nor is victim access to support services and assistance dependent upon their cooperation or support of an investigation/prosecution. Nonetheless, victim support for criminal proceedings is encouraged through the provision of services and assistance to victims throughout the criminal justice process. Toward this end, Canada’s Criminal Code contains numerous provisions to facilitate a victim’s/witness’ participation in a criminal proceeding. These include:

As part of the investigative process, it will be important to understand the basis upon which these testimonial aids can be accessed. Victim service organizations can provide information to victims on these provisions. For more information on these provisions, please see Chapter 4. For more information on available victim services in your jurisdiction, please see Chapter 6.

Canada has laws to protect victims against intimidation or retaliation if they report these criminal offences or testify against their trafficker. It is an offence to intimidate a justice system participant (a victim or witness) and to obstruct justice (sections 423.1 and 139).

3.9 Laying a charge

Decisions to charge and prosecute criminal offences in Canada are made by the police force of a jurisdiction and/or relevant prosecution services. The vast majority of criminal offences are investigated and prosecuted in Canada at the provincial level and charging and prosecutions practices vary by jurisdiction. In three provinces, British Columbia, Quebec and New Brunswick, decisions to lay Criminal Code charges must first be approved by provincial Crown prosecutors; in other jurisdictions, charges can be laid directly by the police. Prosecutions under the IRPAare the responsibility of the Public Prosecution Service of Canada.

Despite the differences in charging practices, all decisions to prosecute in Canada are guided by a two-stage test:Footnote 117 (1) whether there is a reasonable prospect of a conviction;Footnote 118 and, (2) if so, whether the public interest requires a prosecution to be pursued. This charge assessment standard is to be applied throughout the entire process, from initially laying a charge through to the conclusion of the case. At any point where this standard is not met, prosecutors are under a duty to cease the prosecution.

Police officers are encouraged to liaise with prosecutors during their investigations. It is recommended that a prosecutor be identified early on in the investigation or as soon as investigations have identified the case as a human trafficking event. The prosecutor should be consulted throughout the investigation and be part of the decision-making process regarding: evidentiary issues that arise; proposed investigative techniques and steps, such as obtaining search warrants and production orders; and, how best to address potential Charter issues. Prosecutors are best placed to provide advice on and assess what the viable charges are for prosecution, in which jurisdiction they should be laid and how the information should be worded. Ideally, a second prosecutor should be identified to review all relevant applications to obtain search and/or productions warrants.

Charges are laid based on the evidence in each individual case. Other charges that might be considered in cases involving trafficking for sexual exploitation could include sex trade-related offences, such as materially benefitting from others’ sexual services (section 286.2), procuring others to provide sexual services (section 286.3), advertising others’ sexual services (section 286.4), sexual assault (sections 271 to 273), child pornography (section 163.1) and other child sexual offences (e.g., sections 172.1 and 151 to 153). IRPA offences should be considered in international labour trafficking cases and offences of general application, such as forcible confinement and kidnapping (section 279), assault (sections 266 to 268), uttering threats (section 264.1), criminal harassment (section 264), should be considered in all trafficking cases.

Once charges are laid, it is important for the law enforcement officer whom the victim trusts to continue to maintain contact with the victim through regular check-ins. These opportunities to build rapport also provide police with the ability to assess whether bail conditions are being followed, whether there are safety concerns that must be addressed and whether additional supports and services are needed, all of which may fluctuate over time.

3.9.1 Trafficking Victims Who Commit Offences

Trafficking victims may commit a range of offences in the context of being trafficked. Some offending may be less serious and/or not involve harm to others, such as simple drug possession or immigration offences, while other types of offending may raise public safety issues, such as exploitative conduct toward other at-risk victims. For example, victims have been known to traffic others, including to diminish their own exploitation, i.e., where traffickers offer victims who engage in trafficking conduct on their behalf a reprieve from exploitative conduct. Involving victims in criminal activity can hide the trafficker’s role in the trafficking enterprise, thereby shielding them from criminal liability.

An effective response that respects trafficking victims’ rights requires timely identification of a person who has offended in the context of being trafficked. Importantly, victims who offend may not initially present as victims. The European Court of Human Rights has noted the necessity of early identification because an offender’s status as a trafficking victim may affect the decision as to whether to prosecute that person:

[A]s soon as the authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual suspected of having committed a criminal offence may have been trafficked or exploited, he or she should be assessed promptly by individuals trained and qualified to deal with victims of trafficking….

Moreover, given that an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so, any decision on whether or not to prosecute a potential victim of trafficking should — insofar as possible — only be taken once a trafficking assessment has been made by a qualified person….

Once a trafficking assessment has been made by a qualified person, any subsequent prosecutorial decision would have to take that assessment into account. While the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to have clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention for disagreeing with it.Footnote 119

To assist in identifying victims as early as possible in the process, please see section 3.6.1 Indicators: Sexual Exploitation or Forced Labour. Trafficking victims who commit offences may also be working together with or for traffickers.

In cases where there is evidence that a person committed an offence in the context of being trafficked, consultation with a prosecutor prior to laying a charge is strongly recommended as laying a charge against a trafficking victim impedes law enforcement’s ability to provide support to that person, negatively impacts law enforcement’s ability to build a relationship of trust with that person, and makes it more difficult to hold their trafficker to account. In particular, pursuing charges for less serious offences in this context is unlikely to be in the public interest. Rather, building a relationship of trust with that person, instead of charging them, would assist them in their recovery and may lead to securing the evidence necessary to hold that person’s trafficker accountable. Cases involving victims who commit serious offences that harm other at-risk persons are more difficult to address. In such cases, consultation with prosecutors is critical.

3.10 Report to Prosecutors

A report to the prosecutor will come in different formats throughout the country; it is essentially a written document outlining the details of the investigation. It provides the evidence of the charges in the case, including evidence that establishes the elements of the offence and the circumstances that led to the commission of the offence. In preparing the report, all evidence in support of the recommended charges should be included, as well as witness lists and statements, and exhibit lists. As is well known, the prosecution is required to disclose, in a timely manner, all relevant information in the possession of the police and the prosecution to the accused to permit them to make full answer and defence.

3.11 Pre-Bail and Post-Bail Considerations

A police officer’s assistance at the pre-bail and post-bail stage is critical. Assistance in building the case for pre-trial detention, investigating possible sureties or associates while also engaging in proactive monitoring of an accused to ensure that they are complying with their conditions, are all important aspects of an officer’s role at this stage. More information on these matters is contained in Chapter 4.

Any evidence that the accused poses a danger to the victim or others is relevant to whether they should be released on bail. Bail may be denied on secondary (public safety) and/or tertiary grounds (maintain confidence in the administration of justice).Footnote 120 Moreover, prosecutors may be able to argue that the burden should be on the accused to show that they should not be detained (a reverse onus). The most frequent examples are when:

Accused will often be released from custody with conditions imposed upon them by the courts. Depending on the release conditions, they may be monitored to confirm that they are abiding by their conditions. This can be a vulnerable time for victims if accused do not abide by their conditions, specifically “no contact” conditions. A breach of conditions is chargeable under a separate offence (subsection 742.6(1)). Victims must be advised of the bail conditions and to report any breaches of those conditions immediately. Police must investigate possible bail breaches expeditiously and if reasonable grounds to believe an offence has been committed exist, lay the appropriate charge(s). All breaches of bail must be taken seriously in human trafficking situations, as they may be associated with attempts to interfere with the witness and dissuade them from testifying or with other criminal activity.

Where an accused is denied bail, Crown prosecutors should seek an order pursuant to subsection 515(12) prohibiting the accused from communicating with the victim, a witness or any other person. When such an order is made, the victim, witness and/or other person in relation to whom the order is made must be notified of its existence and be encouraged to report to the police immediately if they receive any form of communication from the accused or anyone on their behalf. Attempts to interfere with victims and witnesses in human trafficking prosecutions — either through threats or the promise of payment of a large sum of money if the victim or witness does not testify at trial — are common. To protect the viability of the prosecution, breaches of no-contact orders must be fully investigated quickly and appropriate steps taken to deal with the situation as soon as possible.

3.12 Peace Bonds

Investigators should also keep in mind the possibility of seeking a “peace bond” against an individual. Peace bonds require an individual to agree to specific conditions to keep the peace. These instruments are available to police to protect the public by preventing a criminal offence from being committed. A peace bond may be issued when it is feared, on reasonable grounds, that a person will cause another person personal injury or damage property (section 810) or will commit certain offences, such as child sexual offences (section 810.1) or serious personal injury offencesFootnote 121 (section 810.2). Breach of a peace bond is punishable by up to 4 years imprisonment (section 811).

Every peace bond includes an order to keep the peace. In addition, the judge may impose any other reasonable conditions necessary to secure the good conduct of the defendant. This enables the judge to craft the order to respond to the particular circumstances of the defendant and the particular risks that they pose to public safety.

3.13 Obtaining Foreign Evidence/Assistance

Where evidence relevant to a Canadian criminal investigation is located abroad, the laws and procedures that exist in that country will determine the mechanism to be used to seek the evidence. In many cases, foreign states will share evidence with Canadian police through direct agency-to-agency channels, including through Interpol.

Examples of the types of materials and assistance that are generally accessible through agency-to-agency channels are the following: public records, including records of business incorporation, records in a court file that is not sealed, interviews of cooperating witnesses or accused/suspects, copies of criminal records, assistance in locating a suspect/witness, copies of information in foreign police files or in the possession of the foreign police, assistance in conducting police surveillance or undercover measures that do not require court authorization, passport, border and immigration records.

There may be situations where the foreign state declines to assist a Canadian investigator through informal agency-to-agency channels, but is, however, able to assist through the formal mutual legal assistance process. In these instances, the following considerations apply:

  1. Is there a mutual legal assistance treaty or convention in place between Canada and the foreign state that covers the type of assistance sought?
  2. If not, will the foreign state assist pursuant to a non-treaty letter of request (i.e., a formal request for assistance that is transmitted by the Department of Justice Canada to its foreign counterpart in accordance with international comity)?

Canada is party to 35 bilateral mutual legal-assistance treaties and many multilateral conventions that contain provisions for mutual legal assistance, including the United Nations Convention against Transnational Organized Crime and its Trafficking Protocol. The Mutual Legal Assistance in Criminal Matters ActFootnote 122 provides for the implementation of both bilateral and multilateral treaties for mutual legal assistance.

Although practices vary from country to country, most jurisdictions require a formal mutual legal-assistance request where court authorization is required to obtain the evidence or provide the assistance (e.g., search and seizure, compelling witness statements and/or testimony, including by video-link, obtaining Internet Service Provider records, obtaining bank or telephone records, enforcing criminal fines or orders of restraint or forfeiture). Some countries will also require that Canadian authorities pursue evidence through a mutual legal-assistance request where the evidence is sought for prosecution purposes.

Investigators should also be mindful of the following:

  1. Caveats on the use that can be made of foreign evidence may be imposed by the foreign state as preconditions to the sharing of the evidence. In the mutual legal‑assistance context, foreign evidence may only be used for the purpose for which it was gathered/seized, unless the foreign state consents to its use for other purposes.
  2. If the execution of a request will attract extraordinary expenses, Canada may be required to pay those costs before the assistance will be granted.

As a general rule, investigators should exhaust all agency-to-agency avenues of cooperation before resorting to the mutual legal assistance process.

Investigators and/or prosecutors are encouraged to contact the International Assistance Group (IAG) at the Department of Justice Canada before drafting a mutual legal‑assistance request. The IAG’s contact information is the following:

International Assistance Group
Criminal Law Operations Section
National Litigation Sector
Department of Justice Canada
284 Wellington Street, 2nd Floor
Ottawa, ON K1A 0H8
Telephone: 613-957-4832
After hours number: 613-851-7891
Fax: 613-957-8412
E-mail: cdncentralauthority@justice.gc.ca

In addition, investigators may wish to consult Chapter 3 of the International Assistance Group Deskbook Policy on the Mutual Legal Assistance in Criminal Matters: https://www.justice.gc.ca/eng/cj-jp/emla-eej/db-gs.html#sec3

3.14 Extradition to Canada

Canadian prosecution and correctional authorities may seek, from foreign states, the extradition of persons accused or convicted of Canadian criminal offences. In urgent and time-sensitive circumstances (e.g., where the person is a flight risk or an imminent threat to security), a provisional arrest request may be pursued with the foreign state, followed by a formal extradition request.

All extradition requests and provisional-arrest requests are submitted to the foreign state through the IAG at the Department of Justice Canada. The IAG acts on behalf of the Minister of Justice as the Central Authority for Canada in all extradition matters.

In general, extradition may only be sought from extradition partners, which include the 32 states or entities that are listed in the annex to the Extradition Act,Footnote 123 as well as bilateral and multilateral treaty partners. Canada is currently party to 51 bilateral extradition treaties and several multilateral conventions containing provisions on extradition, including the UN Convention against Transnational Organized Crime and its Trafficking Protocol.

The relevant treaty or convention, along with the law of the foreign state, will determine the criminal conduct that is considered to be extraditable, as well as the procedural and evidentiary requirements to be met when seeking extradition. These may vary significantly from state to state.

Prosecuting and investigating authorities should consult with the IAG in all cases where extradition is being contemplated. Consultation should be pursued at the earliest possible opportunity. The IAG’s contact information is the following:

International Assistance Group
Criminal Law Operations Section,
National Litigation Sector Department of Justice Canada
284 Wellington Street, 2nd Floor
Ottawa, ON K1A 0H8
Telephone: 613-957-4832
After hours number: 613-851-7891
Fax: 613-957-8412
E-mail: cdncentralauthority@justice.gc.ca

In addition, investigators and prosecutors may wish to consult Chapter 1 of the International Assistance Group Deskbook Policy on Extradition: Provisional Arrest: https://www.justice.gc.ca/eng/cj-jp/emla-eej/db-gs.html#sec1