Chapter 4: Guidelines for prosecutors

The purpose of this chapter is to provide practical guidance to prosecutors involved in human trafficking cases. Crown practices and procedures will vary from one jurisdiction to another. This chapter should be considered in conjunction with those existing practices and procedures.

4.1 Victim Interview

For some victims of trafficking, the first meeting with a representative of the prosecutor is their first encounter with the justice system. They may have fears or doubts that can be allayed by establishing a relationship of trust. These victims may be accompanied by the investigating officer assigned to their case with whom a relationship of trust may have already been established. The involvement of the prosecutor and victim services should build on that relationship.

Trafficking victims will have experienced severe trauma, possibly over long periods of time. That trauma may impact the way they perceive authorities and recount the events that happened to them. Understanding the impact of this trauma will assist in building trust and supporting them through the criminal justice process, which can be experienced as a form of re-victimization. For more information on the trauma experienced by trafficking victims and trauma-informed and victim-centered approaches, please see section 3.2.

Young women and girls are particularly at risk of trafficking, especially those from Indigenous and Black communities and youth in care. Indigenous women and girls are especially vulnerable to being targeted by traffickers and are over-represented among victims of human trafficking in Canada. The ongoing impacts of colonization, intergenerational trauma and systemic discrimination have led to mistrust of authorities and institutions and have made Indigenous women and girls more at risk of becoming trafficked for sexual exploitation. For more information on working with Indigenous victims, please see section 3.3.

4.1.1 Make First Contact

Arrange an informational meeting with the victim as soon as possible and involve the police officer whom the victim trusts and victim services in the case. To facilitate first contact, it is recommended that you verify the following:

Trafficking conduct impacts those subjected to it differently, but victims generally experience a significant degree of trauma. By keeping an open mind, free of stigma and bias, and by being empathetic, the victim may be more comfortable participating in the court process.

In some cases, meeting the victim early in the process may not be advisable, for example, when the victim is enrolled in a long-term recovery program and the professionals responsible for their care believe it would cause further trauma to have them meet with the Crown at that time, given that doing so would require the victim to think about the trafficking, the trafficker and court. At all times, “meet the victim where they are at” and if the victim is not ready for an initial meeting with the Crown at the outset of the case, delay it until enough time has passed that they are able to participate.

4.1.2 The Initial Meeting

As with any witness interview, ensure that another person is always present, such as the investigating officer assigned to the case or, depending on the circumstances, a victim services and/or a support person. In particular, the presence of a familiar investigating officer, particularly if a positive relationship has already been established, may help the victim feel more at ease and increase their willingness to participate.

Depending on the circumstances, the initial meeting with the victim may take place before charges have been laid. If possible and subject to the victim’s willingness, it may be beneficial to have at least two meetings with the initial meeting focusing on developing rapport, explaining the process, what to expect and what needs the victim has. It is also an opportunity for the victims to ask any questions. Depending on how the case proceeds, additional meetings may be beneficial.

When you are ready to interview the victim, take time to introduce yourself and explain the role of the Crown, the purpose of the interview and what will happen next. At this stage, consider focusing on whether the victim would like to add to or change their police statement, rather than asking about the offence itself.

Remain sensitive to the victim's personal situation and state of mind, including the psychological and emotional distress they are likely experiencing. Bear in mind that no two victims are alike and victims may react in different ways to Crown counsel and law enforcement, depending on the nature of their traumatic experience; some may be cooperative, though in many instances, they may not trust the justice system and may decline to participate meaningfully. Try to mirror the language they use to describe their situation and experiences (e.g., if they say “boyfriend”, use this term). Pay close attention to the victim’s body language and any comments about the accused in particular, as the victim may continue to fear for their safety, as well as that of others known to them, even if the accused is in custody. Like other vulnerable victims, such as survivors of domestic violence or sexual assault, be prepared to arrange for frequent breaks, or even terminate the interview and suggest a later date to finish it if the victim is unable or unwilling to continue.

Victims who react negatively initially, may not remain adverse or hostile throughout the interview, as such a response may be a coping mechanism that they have adopted to survive their ordeal, and may not be directed specifically at the justice system. Showing empathy and sensitivity will help build trust and confidence that authorities are there to help. To maximize the effectiveness of the interview, it is thus important to avoid asking the victim about discrepancies or inconsistencies in their evidence too early in an interview. Inconsistent statements are consistent with having experienced trauma; probing victims’ statements before a relationship of trust is established may lead the victim to feel they are not believed, which could greatly reduce their potential for cooperation. While difficult questions may need to be asked to obtain an accurate and complete account of relevant events, all efforts should be made to build a rapport with the victim before delving into more sensitive topics.

Avoid making promises that one may not be able to keep (e.g., assuring them that they will be able to testify via closed-circuit video or behind a screen, when this procedure requires an application on which the court has not yet ruled).

4.1.3 Maintaining Trust

In addition to the formal interview, involve the victim throughout the process. Specific provincial or territorial laws may apply.Footnote 124 Regularly consult the victim and provide timely information, particularly with respect to the release of the accused on bail and with respect to the results of the trial and sentencing. Engage victim services early in the process to assist in liaising with the victim. The role of victim services is addressed more thoroughly in Chapter 6.

For more information on interviewing victims of human trafficking, please see:

4.2 Approval of Charges/Review of Offences

In Canada, the responsibility to lay charges rests with the police in every province except for British Columbia and Quebec,Footnote 127 where the responsibility to lay charges rests with the Crown. In New Brunswick, the police lay charges after receiving approval from the Crown.

Despite the differences in charging practices, all decisions to prosecute in Canada are guided by a two-stage test:Footnote 128 (1) whether there is a reasonable prospect of conviction/whether an impartial and properly instructed judge or jury could reasonably conclude that the suspect is guilty of the offence disclosed by the evidence; and, (2) if so, whether a prosecution is in the public interest.

Human trafficking often occurs alongside other criminal offences. Human trafficking is an offence that takes place over a period of time, during which traffickers extract labour or services from their victims, including by engaging in incident-based offences, such as assault. Accordingly, consideration should also be given to the laying of additional charges, where the evidence supports it. For example, the following other offences may be relevant in human trafficking cases:

4.3 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 vulnerable 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 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 129

In cases involving victims who offend, the first consideration is whether a defence applies, such as the defence of self-defence or duress, such that there is no reasonable prospect of conviction. Even where there is reasonable prospect of conviction based on the facts, a prosecution of a trafficking victim may still not be in the public interest. For example, pursuing charges against a victim who has committed less serious offences, particularly where further offending is unlikely to occur once they are removed from the trafficking situation, is likely to negatively impact the victim’s recovery, as well as authorities’ ability to hold their trafficker accountable.

Cases involving victims who commit serious offences that harm other vulnerable persons and/or raise public safety concerns are more difficult to address. In such cases, a range of factors should be considered, including the risk of re-offending, the impact of pursuing a prosecution on the ability to hold the victim’s trafficker accountable and the victim’s support needs. Where the risk of re-offending is low and/or rehabilitation is likely, consideration should be given to providing support rather than punishment.

4.4 Obtaining Foreign Evidence/Assistance

Mutual legal assistance may be critically important to the successful investigation and prosecution of a human trafficking case that crosses international borders. Canada is party to 35 bilateral mutual legal assistance treaties and many multilateral conventions that contain provisions for mutual legal assistance, including the UN Convention against Transnational Organized Crime (UNTOC) and its Trafficking Protocol, which Canada ratified in May of 2002. Where a human trafficking case involves another country with which Canada does not have a bilateral mutual legal assistance treaty, the UNTOC provides a basis for mutual legal assistance (see article 18 of UNTOC and article 1 of the Trafficking Protocol). The Mutual Legal Assistance in Criminal Matters Act provides for the implementation of both bilateral and multilateral treaties for mutual legal assistance.

Canada may also require extradition of an accused in a human trafficking case. Currently, Canada is party to 51 bilateral extradition treaties and several multilateral conventions containing provisions on extradition, including the UNTOC and its Trafficking Protocol. Where a human trafficking case involves another country with which Canada does not have a bilateral extradition treaty, the UNTOC provides a basis for extradition (see article 16 of the UNTOC and article 1 of the Trafficking Protocol). The Extradition Act provides for the implementation of both bilateral and multilateral extradition treaties.

For more information on mutual legal assistance and extradition, please see sections 3.13 and 3.14.

4.5 Pre-Trial Detention/Release

Traffickers are known to continue to seek to control and intimidate victims and witnesses, even after they have been charged with criminal offences. To prevent the accused from communicating with the victim, or any other person connected with the case, an application for a no-contact order under subsection 516(2) is recommended. This request can be made to the court at the time of the first appearance. Once granted, it will remain in force under subsection 516(3).

4.5.1 Grounds for Detention

The three grounds of detention in subsection 515(10) can be raised when seeking the detention of an accused charged with human trafficking offences. While the factors relevant to the three grounds of detention are well known, the following considerations are particularly germane to trafficking cases.

With respect to the first ground at paragraph 515(10)(a) (ensuring attendance at court), pay special attention to the mobility of the accused. Often, they will have methods of moving from one country to another or across the country without being observed, which may mean they can easily leave the jurisdiction. Ensure that passports are confiscated and that border services are notified that the person is not allowed to leave the country. Prohibiting the person from applying for a passport is also a condition of release that should be considered in these circumstances.

With respect to the second ground at paragraph 515(10)(b) (ensuring the protection or safety of the public), given the coercion and threats inherent in the offence of human trafficking, victim/witness protection and safety is a prime consideration. Human trafficking is a lucrative business, and traffickers have significant incentive to continue committing the offence after they are released. Conditions aimed at restricting their access to certain places and people associated with crime should be considered. Moreover, the victim’s perception of their physical and psychological safety is critical to their recovery and maintaining their cooperation in the prosecution.

With respect to the last ground at paragraph 515(10)(c) (maintaining confidence in the administration of justice), the gravity of the offence and the potential for the accused to receive a lengthy term of imprisonment are equally important factors to consider (subparagraphs 515(10)(c)(ii) and (iv)). Because of the human trafficking offences’ minimum and maximum sentences, the objective gravity of these offences is high. The maximum sentence for aggravated human trafficking is life imprisonment and 14 years in other cases (sections 279.01 and 279.011).

For bail decisions in human trafficking cases, please see Annex A.

4.5.2 Onus

While human trafficking offences do not trigger an automatic reverse onus during a bail hearing, even where a firearm is involved, there may be cases where a reverse onus applies. In particular, if the accused is charged with a criminal organization offence under section 467.11, 467.12, or 467.13, or a serious offence (i.e., an offence punishable by five years or more or as prescribed by regulation) alleged to have been committed for the benefit of, at the direction of, or in association with a criminal organization, the onus is on the accused to show cause why their detention is not justified (subparagraph 515(6)(a)(ii)). Given that human trafficking offences are usually financially motivated, if the offence appears to have been committed by, or in conjunction with, three or more persons, prosecutors should consider the definition of “criminal organization” in section 467.1 of the Criminal Code, and the potential application of subparagraph 515(6)(a)(ii).

Since 2019, a reverse onus applies where the accused is charged with a violent offence against an intimate partner, if they have a prior conviction for violence against any intimate partner. As of January 4, 2024, this reverse onus was broadened to apply to individuals who were previously discharged of an intimate partner violence offence. This reverse onus also applies in trafficking cases where the victim has been led to believe that their trafficker is their intimate partner. Although the accused may dispute the nature of their relationship with the victim, the court must consider the victim’s view of that relationship when determining whether this reverse onus applies.

4.5.3 Preparation for the Bail Hearing

Good preparation for the bail hearing can help secure the detention of the accused in appropriate cases. Therefore, it may be helpful for the prosecutor to seek an adjournment of up to three days pursuant to subsection 516(1) of the Criminal Code, either prior to the commencement of the hearing or once it is underway and the need for further investigation, such as of proposed surety, becomes apparent.

Below are some relevant considerations in preparing for the bail hearing:

4.5.4 Non-Communication Order upon Detention

Where the accused is ordered detained, the prosecutor should seek an order, pursuant to subsection 515(12), that the accused abstain from communicating, directly or indirectly, with any victim, witness or other identified person, associated with the case. Traffickers are known to seek to control their victims, including when they are detained.

4.5.5 Conditions of Release

Mandatory Conditions or Considerations

Where an accused is charged with “an offence in the commission of which violence against a person was used, threatened or attempted” (which would presumably include virtually every human trafficking charge under sections 279.01 and 279.011), the Criminal Code requires the inclusion or consideration of certain conditions in any release order:

Mandatory firearms and weapons prohibition: Paragraph 515(4.1)(a) requires the inclusion of a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things “unless the justice considers that such a condition is not required in the interests of safety of the accused or the safety and security of a victim of the offence or any other person.” Where such a condition is included, the justice must specify the manner and method by which those items will be surrendered, disposed of, detained, stored or dealt with, and by which any authorizations, licences and registration certificates will be surrendered (see subsection 515(4.11)).

Non-communication condition: Paragraph 515(4.2)(a) requires the justice to consider whether it is desirable, in the interests of the safety and security of a victim, witness, justice system participant, or any other person, to include a condition that the accused not communicate, directly or indirectly, with any such person identified in the order. The prosecutor should argue for such a condition in respect of the victim, the victim’s family members, witnesses, and associates of the accused. In certain circumstances, it may be advisable to include the initials of victims and witnesses in the order instead of their full names.

Remain away (or “no go”) condition: Paragraph 515(4.2)(a) also requires the justice to consider whether it is desirable, in the interests of the safety and security of a victim, witness, justice system participant, or any other person, to include a condition that the accused refrain from going to any place specified in the order. If the address of the person to be protected is already known to the accused, that address should be the subject of such a condition. If there are special circumstances that affect the victim’s safety, it may be necessary to omit the victim’s address as these orders are public. To avoid the need to bring an application to vary the order under section 519.1, it is advisable to include a clause stating that the accused must remain away from any place known to the accused where the victim may reside. If the accused is not aware of the relevant address, care must be taken not to reveal information that could enable the accused to locate the person. In a sexual exploitation trafficking case, the following additional types of remain away conditions may be appropriate:

Optional Conditions

As a general matter, the prosecutor must balance the objective of keeping appropriately tight control of the accused with the fact that overly strict conditions may require building exceptions into them, which in turn can be difficult to enforce.Footnote 131 In most cases, the prosecutor should consider asking for additional conditions, as follows:

4.5.6 Publication Bans During Bail Proceedings

Publication bans on bail hearings may be sought under section 517. Section 517 of the Criminal Code is predominantly used by the defence to limit the stigma attached to the accused’s interaction with the justice system and to ensure the partiality of the trier of fact should there be a trial. The order is mandatory when sought by the defence but remains discretionary when requested by the prosecution. As part of the application, the prosecutor will have to show how the publication ban protects the fairness of the trial, that there are no other reasonable alternatives and that the benefits of the ban outweigh the negative effects, particularly with respect to the freedom of expression of the media covering the case. Prosecutors should discuss with the victim whether they wish a publication ban in advance of making an application. Please see section 4.10 for general information on publication bans.

4.6 Post-Bail Hearing Considerations

4.6.1 If Accused is Released

Post-bail hearing meeting and investigation of evidence: Soon after the bail hearing, it can be useful for the prosecutor and the police to meet to discuss the evidence at the bail hearing, provided evidence has been submitted. Any evidence that raises suspicions can be the subject of investigation, as can matters raised in defence cross-examination of the investigating officer, if they testified at the bail hearing. Transcripts of that testimony can be requested to facilitate follow-up and for potential use at trial.

Possible bail review: Where an accused has been released despite the opposition of the prosecutor, the prosecutor may want to consider bringing a bail review application pursuant to section 521 of the Criminal Code. A post-bail hearing investigation that rebuts evidence given at the bail hearing may strengthen the bail review application.

Proactive investigation of interference with witnesses or continuing offending: Whether the accused has been detained or released, it is realistic to assume that the accused in a human trafficking case may, either directly or indirectly, attempt to threaten or intimidate the complainant or other witnesses, or persons close to the complainant and witnesses, including in their home country if they are foreign nationals,Footnote 133 even if a non-communication order is in place. Similarly, the accused may continue to run the trafficking business, even if they are detained. Prosecutors should work with police to determine whether such conduct has occurred. If the accused was released after the bail hearing, any such conduct would warrant having the accused arrested pursuant to section 512.3 and charged with additional offences, and/or bringing an application pursuant to subsection 524(3) to have all previous releases cancelled.

4.6.2 If Accused is Detained

An accused may request review of a bail decision at any time (section 520) and the jailer may do so at the end of the 30-day period for a summary offence and 90 days in other cases (section 525). In all cases, the prosecutor must be notified in advance. In a section 520 review, the onus is on the applicant to show that there was an error in law and that the decision was manifestly improper. While a section 525 hearing takes place as of right, the reviewing judge has the independent responsibility to consider whether continued detention is justified under subsection 515(10), with the parties having an opportunity to submit their respective arguments.

4.7 The Jury Selection Process — Challenge for Cause

The challenge for cause process is used frequently and is considered an important aspect of the jury selection process that aims to ensure that only eligible and impartial jurors are selected to try a case. Subsection 638(1) of the Criminal Code sets out the basis upon which prospective jurors may be challenged by either the prosecutor or the accused. Jurors who are successfully challenged based on one or more of the grounds listed are dismissed from jury duty pursuant to section 640 of the Criminal Code.

A “Parks challenge” or “Parks question” refers to the 1993 decisionFootnote 134 of the Ontario Court of Appeal that established the right to “challenge for cause” based on racial partiality. Specifically, the challenge for cause ground under paragraph 638(1)(b) (“a juror is not impartial”) was interpreted to permit either the accused or the Crown to challenge prospective jurors on the basis of questioning whether their ability to judge the evidence in the case without bias, prejudice or partiality would be affected by the accused’s race.

Since the decision in R v Parks, the Supreme Court of Canada has endorsed this practice and the use of challenges for cause in R v WilliamsFootnote 135 and R v Spence,Footnote 136 noting that the “challenge for cause procedure is about the only tool available to the accused to root out and expose such racism where there is a ‘realistic potential’ of its existence”.Footnote 137 The Supreme Court of Canada has also noted that R v Parks does not describe the only questions available on a challenge for cause and that trial judges have discretion in deciding on the form of permissible questioning to ensure juror impartiality.Footnote 138

As a matter of practice, in consultation with the defence counsel (or the accused), prosecutors should always consider whether to propose a “Parks question” to the trial judge. If a Parks question is requested by the accused and endorsed by the trial judge, consideration should also be given to offering to alternate posing the question with defence counsel (or the accused).

4.8 Jury Instruction Relating to Trauma

In human trafficking jury trials, prosecutors should consider seeking a final instruction, which explains to the jury that they must not apply pre-conceived notions of how trauma victims ought to behave or react. This type of jury instruction has become accepted practice in sexual violence prosecutions and is being used more frequently in human trafficking trials. In September 2022, the jury was charged as follows in the R v McIntosh trial:

[27] It has long been recognized that there is no rule on how people who are the victims of trauma like human trafficking behave. A complainant may or may not exhibit immediate symptoms of trauma, be weepy, be depressed or withdrawn, or avoid the accused. The presence or absence of these behaviours does not mean that a complainant was or was not the victim of these sorts of offences. It just means that there is no “normal” or “typical” way for a victim of these offences to behave.

[28] No inference should be drawn regarding the complainant's credibility that is based on assumptions about how a victim of these offences is supposed to react and respond to them. It cannot be assumed that victims react in any objectively identifiable way. A failure to demonstrate avoidant behaviour or a change in behaviour must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how people react to these offences.

[29] I caution you, as I did when we started the trial, that experience has shown us that there is no typical victim or typical offender or typical situation or typical reaction. I am not telling you this to support a particular conclusion or so you don’t use your common sense. I am telling you this so that when you reflect thoughtfully on the evidence, you are careful not to be influenced by misconceptions about the offences before you or the people involved. You must resist and help each other to resist conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies or stereotypes. Think about why you are making your decisions and examine your reasons for stereotypes and assumptions that you may be applying.Footnote 139

4.9 Testimonial Aids and Other Measures

Testifying in criminal proceedings can be a difficult and frightening experience for any witness but may be particularly difficult for a victim of trafficking. Because trafficking involves coercive practices, such as violence, which may be physical, sexual or psychological, and threats of violence to the victim or to someone known to the victim, trafficking victims are likely to require the use of testimonial aids in order to provide their testimony, as may other witnesses in trafficking cases.

In particular, victims may recant or struggle during testimony for many reasons, including fear and/or trauma. For these reasons, consideration should always be given to requesting testimonial aids for trafficking victims. In cases involving Indigenous victims, the following excerpts from Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls may assist in submissions requesting testimonial aids for Indigenous victims (over 18), as well as for closing submissions at trial:

The Criminal Code contains provisions that allow judges to order the use of testimonial aids and other measures to help witnesses testify. These provisions recognize that some victims and witnesses, such as trafficking victims, may be more vulnerable because of their age or other factors, such as the nature of the crime committed against them. One of the objectives of these provisions is to help reduce the trauma that may result from testifying and to help ensure that, in the case of victims, they are not re‑victimized by their participation in the criminal justice system.

Testimonial aids and other measures that assist victims and witnesses testify include the following:

These measures must be available upon application for all witnesses under the age of 18 years or any witness with a disability that makes it difficult for them to communicate, unless the judge believes they would interfere with the administration of justice.

These measures may be available to other vulnerable adult witnesses, upon application, if the judge feels it is necessary for the witness to give a full and candid account of the acts at issue. The judge will consider factors such as the witness’s age, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused and any other circumstance that the court considers relevant.

In addition to the testimonial aids and other measures mentioned above, the judge may issue an exclusion order requiring some or all members of the public to leave the courtroom during some or all of the criminal proceedings (section 486). A judge may make such an order if they are of the opinion that it is:

The courts have recognized the importance of making an exclusion order in appropriate cases. The courts however, will only make such an order where it is necessary (on the basis of the above considerations) and where reasonable alternatives have not been identified that could accomplish the same results (Canadian Broadcasting Corporation v New Brunswick [Attorney General]Footnote 142).

Where a judge refuses to grant an exclusion order in cases where an accused has been charged with one of the human trafficking-specific offences, they must give reasons for refusing to do so (subsection 486(3)).

For additional information please see: Testimonial Aids: https://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/aids-aides.html

If the victim resides in a different jurisdiction than where the charges are laid, canvas with the victim and their support persons whether it will re-traumatize the victim to require them to attend court in person. For many victims, returning to the city where they were trafficked will trigger trauma associated with the trafficking. Some victims who reside outside of the jurisdiction may refuse or be reluctant to attend court, but when it is explained to them that they may be able to testify by videolink from the city in which they reside, they may be more willing to testify. Where having the victim testify in person will re-traumatize them, an application for videolink testimony may be made under section 714.1. This application, along with testimonial aid applications, should be made in advance of trial whenever possible, as some victims will experience significant anxiety about the possibility of having to testify in the physical presence of the accused without a support person or support animal, which can be avoided if the court’s decision is known well in advance of trial.

4.10 Publication Bans

The Criminal Code provides for both mandatory and discretionary publication bans that prevent the publication, broadcast or transmission in any way of any information that could identify the victim or witness. Prosecutors must discuss publication bans with the victim at the earliest opportunity to determine whether a victim wants a publication ban. While many victims may want a publication ban to protect their identity, others may not. For example, a victim may want to speak publicly about their experience of being trafficked, including to raise awareness about the tactics that traffickers use to lure victims.

Under section 486.4 of the Criminal Code, a judge, upon application, must make an order directing that any information that could identify a witness under the age of 18 or the victim shall not be published in any document or broadcast in any way, in proceedings involving a number of enumerated offences, including the human trafficking-specific offences. The prosecutor may apply for a section 486.4 publication ban on behalf of a victim who requests one, as well as in cases where the prosecutor has not yet determined the victim’s wishes, for example because they are having trouble locating the victim. In both cases, the prosecutor must, as soon as possible, inform the victim of the existence of the publication ban and of the victim’s right to apply to vary or revoke the publication ban. If the prosecutor applies for a publication ban on the victim’s behalf, they must inform the court as soon as possible that they have informed the victim who is the subject of the publication ban of its existence, that they determined the victim’s wishes, and that they have informed the victim of their right to apply to revoke or vary it. If a victim who is the subject of a publication ban requests that the prosecutor have it varied or revoked, the prosecutor must apply to vary or revoke it as soon as possible.

Section 486.5 of the Criminal Code provides a judge with the discretion to order a publication ban to withhold the publication of the identity of, or any information that could identify, any witness or victim in all other criminal proceedings if the judge believes it is “necessary for the proper administration of justice.” Section 486.5 publication bans may be relevant in cases where a decision is made not to pursue human trafficking charges in favour of other charges that are not enumerated in section 486.4. The same duties to inform as described above apply to section 486.5 publication bans.

In deciding whether or not to order a section 486.5 publication ban, the judge is directed to consider the following factors:

For more information on understanding trauma and human trafficking, please see Chapter 3 or visit the Online Training Initiative to Address Human Trafficking, an online training course for Canadian frontline service providers on how to recognize, protect and assist a person who may have been trafficked. This training is available in English and French and can be accessed at: https://helpingtraffickedpersons.org/training/curriculum. See also https://kmb.camh.ca (EENet – An Introduction to Human Trafficking (Centre for Addiction and Mental Health).

4.11 Preliminary Hearings

For offences committed on or after September 19, 2019, charges under paragraph 279.02(1)(a) and section 279.03 are no longer eligible for a preliminary hearing. If it is a crime that straddles the two time periods, a preliminary hearing is no longer possible, since procedural legislative changes are prospective, not retroactive.

Given the difficulties victims experience when testifying, particularly when they have to do so multiple times, consideration should be given to using subsection 540(7)Footnote 143 of the Criminal Code to avoid having the victim testify at the preliminary hearing. Under this provision and after giving notice (subsection 540(8)), the statement of the victim, generally an audio-video recorded statement, can be entered as evidence instead of the victim attending to provide the evidence. However, the judge may still require the victim to appear for examination or cross-examination in relation to a statement entered as evidence under subsection 540(7) (see subsection 540(9)). If a decision is taken to rely on subsection 540(7), victims should be made aware that they may still have to testify. Prosecutors should also consider opposing cross-examination under subsection 540(9), especially where the statement admitted under section 540(7) was taken under oath or solemn affirmation.

Other methods of testimony

In situations where the victim is under 18, prosecutors should consider using section 715.1 to present the victim’s videotaped statement as evidence at the preliminary inquiry and trial.

715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

4.12 Direct Indictments

Pursuant to section 577 of the Criminal Code, the Attorney General or the Deputy Attorney General is authorized to send a case directly to trial without a preliminary inquiry, when the preliminary inquiry has been commenced but not concluded, or after a preliminary inquiry has been held and the accused has been discharged. Importantly, the accused has no constitutional right to a preliminary hearing.Footnote 144

In human trafficking cases, prosecutors should consider obtaining a direct indictment when there are benefits to removing the preliminary inquiry from the process, such as avoiding pre-trial delay, preserving evidence, protecting vulnerable witnesses, and other public interest factors. For prosecutors in Quebec, the ACC-2 directive should also be consulted for the use of this procedure.

4.13 Responding to Common Defence Strategies

The most common defence challenge in human trafficking cases is attacking the credibility and reliability of the prosecution’s witnesses, and especially the victim. To raise reasonable doubt, the defence may submit prior inconsistent statements, and call into question the victim’s credibility (e.g., by suggesting an ulterior motive, such as avoiding deportation or seeking revenge).

4.13.1 Prior Inconsistent Statements

There may be discrepancies between a victim’s prior testimony or written statements and their testimony at trial. Such discrepancies may be inadvertent, as the material facts may have occurred a considerable time in the past. Victims may also deliberately withhold information or lie if they still fear for their safety or that of others, if they have feelings for their trafficker, for example in cases where the trafficker gained control over them by leading them to believe that they were in an intimate relationship with them, or if they have participated in criminal activity, for example in cases where the trafficker has involved their victims in the trafficking business or other related criminal activity. Discrepancies are also consistent with having experienced trauma, which is known to affect the ability to recall facts, particularly in a linear fashion. For more information on the impact of trauma on victims, see section 3.2.

Any of these above scenarios may generate prior inconsistent statements. To overcome the associated challenges and ensure that the trier of fact has a fair view of the victim’s evidence, the following practices may be of assistance:

4.13.2 General Attacks on Credibility

Defence counsel may also attack the general credibility of the victim and/or point out motives to lie by raising matters such as their immigration status, criminality, benefits received during the time frame of the allegations, or prior relationships with the accused or other witnesses in the case. Strategies for countering these tactics may be similar to those described immediately above. In addition, consider the following possible responses:

4.13.3 Sexual History Evidence

Defence counsel may also seek to attack the victim’s credibility by seeking to adduce evidence of the victim’s prior sexual activity, for example where the defence seeks to admit evidence of the victim’s prior or subsequent involvement in the sex trade to infer that they are less likely to have been exploited.

Human trafficking offences are not listed as a designated offence in the section 276 applications, which govern the admissibility of sexual history evidence. In its 2019 Barton decision,Footnote 151 the Supreme Court of Canada found that the regime governing the admissibility of sexual history evidence (the section 276 regime) applies “…to any proceeding in which an offence listed in subsection 276(1) has some connection to the offence charged, even if no listed offence was particularized in the charging document.”Footnote 152 The Supreme Court of Canada also found that prior sexual activity evidence led by the Crown is subject to the common law principles articulated in its 1991 Seaboyer decision.Footnote 153 In the context of human trafficking charges, the jurisprudence is unsettled on the use of section 276 applications.Footnote 154 However, prosecutors should consider whether to demand that defence counsel make a section 276/Seaboyer application where they seek to adduce evidence of the victim’s sexual history to infer that the victim’s allegation that they have been exploited is less worthy of belief.

4.14 Proceeds of Crime and Offence-Related Property

Globally, it is estimated that human trafficking is among the most lucrative of criminal activities, rivalled only by drug and firearms trafficking, and generates billions of dollars annually for sophisticated criminal organizations. Estimates by the International Labour Organization put the annual profits for human trafficking at approximately $32 billion.Footnote 155

Whenever possible, parallel proceeds-of-crime investigations should be conducted alongside human trafficking investigations and initiated at an early stage. Please see section 3.6.3.

The Criminal Code includes a comprehensive criminal forfeiture scheme dealing both with proceeds of crime, including through the use of a reverse onus of proof provision, and forfeiture of offence-related property (i.e., goods used to commit crime).

Part XII.2 of the Criminal Code provides for forfeiture of “proceeds of crime” as part of the sentencing of the offender upon application by the Crown after conviction for a designated offence, including human trafficking offences.

4.14.1 What Are the Proceeds of Crime?

Section 462.3 of the Criminal Code defines “Proceeds of crime” to mean:

Any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of the commission in Canada of a designated offence, or an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.

In the case of persons convicted of a criminal organization offence (which can include a human trafficking offence committed for the benefit of, at the direction of or in association with a criminal organization), the Criminal Code provides for the forfeiture of proceeds of crime unless the offender can show that it is not derived from criminal activity. In other words, the onus is on the convicted party, rather than the Crown, to demonstrate why the forfeiture of property should not be ordered.

Extensive provisions of Part XII.2 also allow for the seizure and restraint of property pending resolution of criminal proceedings.

As part of special procedures and powers in Part XV, the Criminal Code also provides for the forfeiture of property used to commit offences and other offence-related property. Offence-related property is defined in section 2 of the Criminal Code to include any property, within or outside Canada, by means or in respect of which an indictable offence under the Criminal Code is committed, that is used, or intended to be used, in any manner in connection with the commission of such an offence.

Numerous jurisdictions across Canada have enacted civil forfeiture legislation. This legislation sets out the framework by which the State can seek the forfeiture of proceeds of unlawful activity. Proceeds of unlawful activity can be defined broadly to include property acquired, directly or indirectly, in whole or in part, as a result of unlawful activity. Civil-asset forfeiture is characterized principally by the fact that the forfeiture can occur in the absence of a criminal conviction.

4.14.2 Forfeiture under the Immigration and Refugee Protection Act

In addition to the penalty provided for in section 120 of the IRPA, an order for the forfeiture of offence-related property may also be made under subsection 137(1) of the IRPA.Footnote 156