Chapter 5: Sentencing for human trafficking offences

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General objectives and principles of sentencing will, of course, guide sentencing outcomes in human trafficking cases. Under both the Criminal Code and the Immigration and Refugee Protection Act, the maximum sentences for human trafficking offences are at the very high end of the penalties prescribed by Canadian law. These penalties reflect a normative statement by Parliament about the nature and severity of these types of crimes. At the same time, courts must be guided by the fundamental principle of sentencing; that is, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Crafting an appropriate sentence in any case, let alone a human trafficking case, is no easy task. This chapter provides a brief overview of the factors that may be relevant to sentencing in human trafficking cases.

5.1 Principles of Sentencing

The fundamental purpose of sentencing is to contribute, along with prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

1. to denounce unlawful conduct
2. to deter the offender and other persons from committing offences
3. to separate offenders from society, where necessary
4. to assist in rehabilitating offenders
5. to provide reparations for harm done to victims or to the community
6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community^{Footnote 157}

5.2 Denunciation

The objective of denunciation mandates that a sentence should communicate society’s condemnation of that particular offender’s conduct.^{Footnote 158} A punishment that reflects the objective of denunciation should also be considered a symbolic, collective statement that the offender's conduct should be punished for encroaching on society's basic code of values enshrined within substantive criminal law. See, for example:

• R v Eftekhar,^{Footnote 159} involving the conviction of a man in his mid-50s for human trafficking, sex trade offences and assault in respect of an Inuit youth:

  This is a case involving the exploitation of a vulnerable young person. It speaks to activity that furthers the public scourge of prostitution, an industry that primarily affects marginalized women and girls. I take the view that the principal sentencing objectives are denunciation and deterrence.^{Footnote 160}

• R v Lopez,^{Footnote 161} where the Court states:

  In terms of the range of sentences that are appropriate for pimping offences, Canadian courts have generally accepted that, in cases like the present one, where the accused has coerced a woman into becoming or remaining a prostitute and exercised a significant degree of control over her activities, sentences of four or five years are typically imposed. General deterrence, denunciation and specific deterrence are said to be the paramount sentencing consideration. Even longer sentences have been imposed and upheld in more aggravating circumstances.^{Footnote 162}

5.3 Deterrence

General deterrence is meant to deter other potential offenders from committing crime by making clear that appropriate penalties will be imposed for violations, while specific deterrence is meant to convey a message to the particular offender such that they will not be inclined to commit the offence again in the future. See, for example:

• Lopez, where the Court noted that general deterrence, denunciation and specific deterrence are paramount sentencing considerations for human trafficking offences.^{Footnote 163} This was adopted in R v Clayton^{Footnote 164}

• R v Downey and Thompson,^{Footnote 165} where the Court noted:

  General and specific deterrence are fundamental sentencing goals that are generally common to virtually all sentences imposed by our courts. A sentence must send a strong and clear message to other like-minded individuals who may be inclined to engage in conduct similar to that of the offender. The offender must also understand that a repetition of his conduct will draw a similar or even harsher penalty. Again, this objective is achieved by the duration of the sentence imposed.

In cases of human trafficking where victims are brought to Canada to be exploited, specific considerations with respect to deterrence may arise including, for example, ensuring the integrity of Canada’s borders, protecting Canada’s reputation internationally and that criminals are not using the immigration system or economic immigration programs, such as the Temporary Foreign Worker Program, to their advantage.^{Footnote 166}

5.4 Separation

Separation through detention ensures that the threat posed by a particular offender, who might not otherwise be rehabilitated or deterred, to society is removed, as such individuals will be unable to commit crimes in the community.

Because human trafficking involves coercive practices, separation from society will often be a necessary component of sentencing:

Where it is apparent that the offender is a dangerous person, who is likely to compromise public safety if released, he should be detained for a period of time sufficient to reasonably conclude that such danger has subsided. The duration of the sentence must be sufficient to give the correctional authorities the necessary time to properly treat the offender and for the National Parole Board to assess the risk of his reoffending.^{Footnote 167}

5.5 Rehabilitation

The objective of rehabilitation recognizes that a sentence should be responsive to the needs of the particular offender so that they can be rehabilitated and cease to be a threat to public safety.

Given that human trafficking offences involve coercive practices, it is in the public interest for traffickers to participate in rehabilitative programming, including where the programming is offered to an incarcerated offender:

Achieving the rehabilitation of an offender in custody necessarily involves programs, courses and activities designed to educate, retrain and counsel him/her to choose a productive lifestyle after release, rather than to continue on the destructive path he/she was on when convicted.^{Footnote 168}

An offender’s efforts toward rehabilitation may be taken into account on sentencing. See, for example:

• R v Antoine,^{Footnote 169} where the Court took note that the offender participated in a number of rehabilitation programs in jail as a mitigating factor for sentencing^{Footnote 170}
• R v Finestone,^{Footnote 171} where the Court took note that the offender actively engaged in counselling, education and residential treatment to address, understand and appreciate the harm his criminal actions caused, to improve his self-awareness and self-control, and to address underlying mental health issues and addictions^{Footnote 172}

5.6 Reparation and Responsibility

Section 738 of the Criminal Code provides a mechanism that can contribute to eliminating the financial profit that motivates the commission of the offence, thereby promoting specific and general deterrence and providing reparation to victims for the harm done to them. As noted by the Supreme Court of Canada:

It [restitution] can be an effective means of rehabilitating the accused because this order quickly makes him directly responsible for making restitution to the victim. […] The order also benefits the victim by providing a speedy and inexpensive manner of recovering the debt. […] Society as a whole benefits from the order since its imposition may reduce the term of imprisonment and provides for the reintegration of the convicted person as a useful and responsible member of the community at the earliest possible date. The practical efficacy and immediacy of the order will help to preserve the confidence of the community in the legal system.^{Footnote 173}

Through programming, education and community initiatives, the offender may take responsibility for their actions. Such an approach is closely linked with the sentencing objective of rehabilitation as well.

5.7 Other Sentencing Considerations

Section 718.01 of the Criminal Code clarifies that, for any offence involving abuse of a child, a court must, in imposing a sentence, give primary consideration to the sentencing objectives of deterrence and denunciation. Through enacting such a provision, Parliament has recognized the inherent seriousness of offences of this nature and has directed the courts, through this provision, to recognize this fact through the imposition of sentences that are proportionate to the seriousness of the offence and to the degree of responsibility of the offender.

In its 2020 Friesen decision, the Supreme Court of Canada outlined factors to be considered in determining a fit sentence in cases involving sexual violence against children:

• Likelihood to reoffend
• Abuse of a position of trust or authority
• Duration and frequency
• Age of the victim
• Degree of physical interference^{Footnote 174}

Although the Friesen case concerned the Criminal Code’s child sexual offences, the Court specifically noted that sentencing courts may also draw upon the sentencing principles outlined in its Friesen decision when imposing sentences for child abduction and human trafficking offences where the victim is a child and the factual foundation for the conviction involves sexual violence or exploitation.^{Footnote 175} For an example, please see:

• R c SV,^{Footnote 176} where the offender pled guilty to sexual interference of a person under the age of 16 (section 151), invitation to sexual touching of a person under the age of 16 (section 152), and possessing and accessing child pornography (subsections 163.1(4) and (4.1)). The offender was convicted at trial of trafficking a person under the age of 18 (section 279.011) and distributing child pornography (subsection 163.1(3)). The offender was sentenced to 18 years less pre-sentence custody. The Court noted that Friesen applied to the trafficking charge^{Footnote 177}

Section 718.04 of the Criminal Code clarifies that, for any offence involving abuse of a person who is vulnerable because of personal circumstances, including because the person is Indigenous and female, a court must, in imposing a sentence, give primary consideration to the sentencing objectives of deterrence and denunciation. Through enacting this provision, Parliament has recognized the inherent seriousness of offences of this nature and has directed the courts to recognize this fact through the imposition of sentences that are proportionate to the seriousness of the offence and to the degree of responsibility of the offender.

This provision may be relevant to some human trafficking cases because the evidence shows that human trafficking victims are often targeted because of their vulnerabilities, for example due to age (children/youth), developmental delay and mental health issues, unstable/low quality housing, lack of status in Canada, and/or the impacts of colonization. Research shows that victims of trafficking for sexual exploitation are predominantly female and that Indigenous women and girls are disproportionately represented among this group. A number of intersecting factors contribute to the disproportionate representation of Indigenous women and girls among those who have been trafficked for the purpose of sexual exploitation, including systemic racism and discrimination, violence against Indigenous women and girls, inter-generational trauma from colonization (e.g., Indian Residential Schools), barriers to service access including lack of access to social and economic resources and regular access to healthcare, colonial assimilation policies, and marginalization of Indigenous women via the Indian Act. The ongoing impacts of colonization and assimilation have led to mistrust of authorities and institutions. These intersecting factors contribute to the targeting of Indigenous women and girls by traffickers, including persons who identify as 2SLGBTQI+.

The following excerpts from the Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls may be of assistance to the court to add further meaning to section 718.04 and 718.201 of the Criminal Code, depending on the facts of the case:

• Despite these gaps in data collection, organizations working to advocate on behalf of sex worker rights, and those working to address sexual exploitation and trafficking, consistently report that Indigenous women, girls, and 2SLGBTQQIA people make up the majority of those involved in the street-level sex work. They are also more likely than other groups to be targeted for, or to experience, sexual exploitation or trafficking for the purposes of sexual exploitation. Page 661 of Volume 1(a) of the Report. Final Report, V1a-1, p. 656
• … the Inquiry heard from many witnesses about how pimps stay outside group homes, youth detention centres, and bus depots to specifically recruit Indigenous girls and 2SLGBTQQIA youth. In this context, they are preyed upon because they are vulnerable to persuasion and grooming, and can be perceived as easy targets — especially when they are coming from the situation of child welfare. As was expressed, in many different ways, the perception of impunity on the part of pimps — the idea that no one will come looking for them — also creates conditions for violence. Final Report, V1a-1, p. 660
• Diane Redsky (former Executive Director of Ma Mawi Wi Chi Itata Centre in Winnipeg) also spoke about the relationship between early childhood violence resulting in trauma and sexual exploitation and trafficking. It [sexual exploitation and sex trafficking] often begins very young with some form of childhood trauma. Whatever trauma that is, whether it’s sexual, whether it’s physical, emotional, any kind of trauma, something happened to her when she was little that created a vulnerability that traffickers can sniff out, and they’re really good at sniffing [out] and identifying a vulnerable girl.” Final Report, V1a-1, p. 659

5.8 Statutory Aggravating Factors

Section 718.2 sets out a number of additional sentencing principles including the principle that a sentence should be increased or reduced to reflect aggravating and mitigating factors. Of the aggravating factors listed, those which are most likely to be present in human trafficking cases include:

• Evidence that the offender abused an intimate partner in committing an offence (subparagraph 718.2(a)(ii))^{Footnote 178}
• Evidence that the offender, in committing the offence, abused a person under the age of 18 years (subparagraph 718.2(a)(ii.1))^{Footnote 179}
• Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim (subparagraph 718.2(a)(iii))
• Evidence that the offence was committed for the benefit of, at the direction of, or in association with a criminal organization (subparagraph 718.2(a)(iv))

In addition to those aggravating factors which a court must take into consideration, other factors may also be relevant in a human trafficking cases.^{Footnote 180} Please see Annex B for an overview of human trafficking sentencing cases.

5.9 Other Aggravating Factors

While no individual is immune from falling victim to human trafficking, traffickers target individuals with specific characteristics and/or experiences. Indigenous women and girls, migrants and new immigrants, 2SLGBTQI+ persons, persons with disabilities, developmental delays and mental health issues such as anxiety and depression, youth residing in care (i.e., group homes), children in the child welfare system, and others who are socially or economically disadvantaged are at higher risk of being targeted by traffickers. It is a crime that is highly gendered, with root causes of exploitation, including a lack of education, social supports and employment opportunities, compounded by poverty, sexism, racism, colonialism and wage inequality. As noted above, there are number of intersecting factors that contribute to the disproportionate representation of Indigenous women and girls among those who have been trafficked for the purpose of sexual exploitation.

The courts have recognized preying on vulnerable groups as an aggravating factor. See, for example:

• Eftekhar, in which the court treated the fact that the offender recognized that the victim, an Inuit teenager, was “ripe for exploitation” and isolated her, as an aggravating factor^{Footnote 181}
• Antoine,^{Footnote 182} Strickland-Prescod,^{Footnote 183} NA,^{Footnote 184} R v Gray,^{Footnote 185} Clayton,^{Footnote 186} R c Chahinian,^{Footnote 187} in which the court treated exploiting or taking advantage of vulnerabilities resulting from a victim’s struggles with addiction as an aggravating factor
• Strickland-Prescod,^{Footnote 188} in which the court treated the fact that the victim was alone without friends and family to be an aggravating factor
• R c Casanova,^{Footnote 189} in which the court treated the particular vulnerabilities of the victim, namely, that she was homeless, addicted to cocaine and was cut off from her family, as an aggravating factor
• R c Wong,^{Footnote 190} in which the court stated: “It is very aggravating that the illegal scheme in which the accused participated preyed on vulnerable people. They were victims in dire circumstances. They were faced with the decision to either pay enormous sums of money or see their requests denied by the appeal board, causing them to agonize over their decision to accept or refuse such a life saving offer.”
• Losse,^{Footnote 191} in which the court treated the victim’s precarious financial situation as an aggravating factor

The courts have recognized planning and deliberation as an aggravating factor for sentencing. See for example:

• R v Tang,^{Footnote 192} in which the court treated the level of deliberation involved in running a brothel involving 14-year old girls as an aggravating factor
• R c Tynes,^{Footnote 193} in which the court treated the fact that an operation involving procuring-related offences was well-organized as an aggravating factor
• R v Reginald Louis Jean,^{Footnote 194} in which the court treated the fact that the offender engaged in planning to avoid authorities as an aggravating factor
• Strickland-Prescod,^{Footnote 195} in which the court treated the fact that the accused’s actions appeared to be a longer-term plan as an aggravating factor
• Chahinian 2018, in which the court treated the fact that the methods used by the offender were not improvised as an aggravating factor^{Footnote 196}
• DPCP c Valcourt,^{Footnote 197} in which the court treated premeditation and a great deal of planning as an aggravating factor^{Footnote 198}

Evidence that an offender has a previous criminal record and/or committed the crime while on parole can also be treated as an aggravating factor for sentencing. See, for example:

• R v Sturge,^{Footnote 199}discussing the offender’s lengthy criminal record and the fact that he was on parole while committing the offence
• R v Harme,^{Footnote 200} discussing the effect of a lengthy criminal record on sentencing
• R v Leduc,^{Footnote 201} in which the court noted the offender’s criminal record, which included previous crimes of violence
• Antoine,^{Footnote 202} in which the court noted the offender’s significant criminal record, which included numerous offences of greed and dishonesty undertaken for personal gain
• Clayton,^{Footnote 203} in which the court found the fact that the offender committed several human trafficking offences while on probation for a conviction of the same type of offence to be an aggravating factor
• R v Preymak,^{Footnote 204}discussing the impact of a previous criminal record and the lengthy time between a previous conviction and the current offence
• Valcourt, in which the court took note of the offender’s extensive criminal record^{Footnote 205}

Human trafficking cases are not like other crimes in that they often occur over a protracted period of time, involving the ongoing exploitation of the victim. Continuation of a crime over a period of time is an aggravating factor for sentencing. See, for example:

• Antoine,^{Footnote 206} Reginald Louis Jean,^{Footnote 207} R v Gardner,^{Footnote 208} Eftekhar,^{Footnote 209} Valcourt,^{Footnote 210} Casanova,^{Footnote 211} Murenzi,^{Footnote 212} Losse,^{Footnote 213} in which the court noted the duration of the offence as an aggravating factor
• Sentencing, 7th edition, Clayton Ruby,^{Footnote 214} which notes “the fact that criminal activity can be shown to have continued over a lengthy period of time will, in many cases, indicate that there has been a conscious and deliberate choice to engage in criminality. The courts will be less inclined to show leniency in such cases.”
• Downey and Thompson,^{Footnote 215} in which the court noted: “These offences did not occur on the spur of the moment, for example, as a spontaneous reaction to an assault or an insult. They took some deliberation and planning and they were carried out over a period of 24 hours. They were nothing short of the planned and executed torture of a small, vulnerable young woman involving elements of sadism.”
• R v Nakpangi,^{Footnote 216} in which the court noted that the lengthy period of time the offender exercised control over the victims was egregious

Trafficking cases concern the exploitation of victims for the financial or material gain of the offenders. In all cases, this factor will be relevant as aggravating the offence and justifying a higher penalty. See, for example:

• R v Crosdale^{Footnote 217} and R v Kandola,^{Footnote 218} in which the court treated the fact that the offender was motivated purely by greed as an aggravating factor

Evidence of violence, threats of violence and other conduct engaged in by an offender to either physically or psychologically coerce the victim to provide their labour or services should aggravate the sentence. See, for example:

• Gray,^{Footnote 219} R v McFarelane,^{Footnote 220} Eftekhar,^{Footnote 221} and Casanova,^{Footnote 222} in which the court treated threats of violence and violence as an aggravating factor
• R v Best, discussing the role of gratuitous violence as an aggravating factor

In cases of trafficking for sexual exploitation, traffickers often lure and groom victims with the promise of a relationship, some seduce victims and, once an intimate relationship has formed, begin to use the emotional bond and intense sense of attachment as a way to manipulate and control their victims. Courts have treated this type of psychological manipulation as an aggravating factor. See, for example:

• R v Wallace,^{Footnote 224} in which the court noted: “It is an aggravating factor that the complainant was in an intimate relationship with the appellant. As the Court has noted, there are fiduciary duties owed to intimate partners, and they are entitled to expect protection from their partners, not exploitation...”
• Lopez,^{Footnote 225} Murenzi,^{Footnote 226} Losse,^{Footnote 227} and Reginald Louis Jean,^{Footnote 228} where offenders used a romantic relationship to exploit their victims

Some traffickers provide drugs or alcohol to their victims to assist in maintaining control over them. The use of drugs or alcohol in this way has been treated as an aggravating factor. See, for example:

• Antoine,^{Footnote 229} Strickland-Prescod,^{Footnote 230} NA,^{Footnote 231} Gray,^{Footnote 232} and Losse,^{Footnote 233} in which the court recognized that exploiting or taking advantage of vulnerabilities resulting from the victim’s struggles with addiction is an aggravating factor

Victims of human trafficking can face a number of health risks and diseases, including exposure to sexually transmitted infections, such as HIV/AIDS. Malnutrition, unsanitary and/or crowded living conditions and a lack of access to regular and adequate healthcare can all result in a lifetime of adverse health conditions. Exposing victims to such risks has been treated as an aggravating factor. See, for example:

• R v Alexis-McLymont and Elgin and Hird,^{Footnote 234} where the court treated the fact that the victim was starved as an aggravating factor
• Losse,^{Footnote 235} in which the court treated the fact that one of the victims was confined to unsanitary rooms, deprived of food and drugged to stay awake in order to be able to meet as many customers as possible as an aggravating factor
• Tang,^{Footnote 236} in which the courtconsidered the living conditions and lack of availability of health safeguards as aggravating factors

5.10 Mitigating Factors

5.10.1 First-time Offender

The fact that an offender has no previous criminal record will often result in the courts focusing on the sentencing objective of rehabilitation.

5.10.2 Remorse or conduct following arrest/early guilty plea/cooperation with the police and prosecutor

Conduct of the offender after the commission of the offence can mitigate a sentence where the court is satisfied that an offender has taken steps to move away from crime. An early guilty plea as an expression of remorse for commission of the crime is viewed as a mitigating factor for sentencing. Guilty pleas mean that the victim does not have to testify in a trial. The extent to which an early guilty plea is viewed as a mitigating factor will, of course, vary depending upon the facts of each case. See, for example:

• Finestone,^{Footnote 237} in which the court noted that the offender was youthful, remorseful, was taking responsibility for his conduct, did not have a criminal record, pled guilty, and was actively engaging in counselling and residential treatment in order to address his criminality

• R v St Vil,^{Footnote 238} in which the court treated the fact that the accused pled guilty early to human trafficking offences as evidence of remorse and that the accused used his time in custody to turn his life around through educational and religious programs

5.10.3 Offender was previously a victim of human trafficking

In some cases of human trafficking, offenders may themselves have been victims of human trafficking. For example, a victim of trafficking may be told that if they recruit others to facilitate their exploitation, they will, themselves, experience a lesser degree of exploitation than that which they had previously endured. See sections 3.9.1 and 4.3 for more information on victims who offend. While the reasons why a victim may subsequently engage in trafficking conduct can vary, these circumstances and any past history of victimization are relevant to sentencing.

In Robitaille,^{Footnote 239} the court imposed an 8 month sentence on a youthful female offender for having materially benefitted from the sexual services of two teenaged girls. A male offender (Finestone), who also “pimped” and abused Ms. Robitaille, was convicted of having trafficked those girls. The court made the following observations about Ms. Robitaille’s culpability:

There are many factors that substantially reduce Ms. Robitaille's own moral culpability. Much like the addict trafficker, Ms. Robitaille is best described as an offending victim. That is, Ms. Robitaille was a victim of sexual exploitation herself and was still being victimized when she committed the offences that are before the court.

It is my view, however, that Ms. Robitaille's situation is unique in that she was in the midst of her own victimization at the time she committed the offences before the court. There was no meaningful gap in time between her exploitation and the commission of her offences. Ms. Robitaille was a child sex worker. On the day she turned 18 she became an adult sex worker. She was still the same person, with the same vulnerabilities, only one day older. She never had space or time to step away from her victimization as a sex trade worker to evaluate and gain insight into her conduct. By turning 18, Ms. Robitaille did not all of a sudden cease to be vulnerable. Her exploitation continued and was ongoing and still taking place at the time that she committed these offences.

There is no doubt, that Ms. Robitaille had power in relation to [the victims]. There is also no doubt that she made the decision to work for Mr. Finestone and to help Mr. Finestone pimp out these two young girls. That decision, however, was made while she was still being exploited herself. She moved from one exploitative relationship to another. In my view, this context reduces Ms. Robitaille’s moral culpability. It does not, however, absolve Ms. Robitaille of all responsibility for her actions. Moreover, I note that it is clear by Ms. Robitaille’s own admission in court that part of her motivation to comply with Mr. Finestone was because she was enjoying the financial benefits of working for Mr. Finestone.

Although the judge in Robitaille referred to the victim/offender as a “child sex worker”, this language should not be used because it suggests the child has agency and children cannot legally consent to providing sexual services in exchange for money or something of value. The term “prostitute” should also not be used to refer to a person who provides sexual services because that term carries with it negative connotations that risk dehumanizing or demeaning that person.^{Footnote 240} When referring to a person engaged in the sex trade, use their name rather than a label.

5.10.4 Age

The fact that an offender is a young person is generally treated as a mitigating factor.^{Footnote 241} It should be noted, however, that the courts have recognized that in cases involving serious violence, the fact that an offender is young may not be a relevant sentencing consideration. See, for example, R v Porsch.^{Footnote 242}

5.10.5 Offender’s Background

Where there is evidence of some connection between racial and social factors and the crime, an offender’s race or social circumstances may be relevant to their moral blameworthiness. See for example, R v Augustin.^{Footnote 243}

5.10.6 Victim Participation is Not Mitigating

The Supreme Court of Canada in Friesen specifically rejected treating victim participation as a mitigating factor or as relevant for determining a fit sentence.^{Footnote 244}

5.11 Specific Sentencing Considerations: Human Trafficking Cases under the Immigration and Refugee Protection Act

In addition to the sentencing principles of general application discussed above, a court sentencing an offender for the commission of an offence under IRPA should take into account the objectives of the legislation, which seek to balance the promotion of immigration with the need to maintain the security of Canadian society.

Aggravating Factors under the IRPA

The IRPA also has its own statutory aggravating factors that must be taken into consideration by a court when sentencing an offender for certain offences, including human trafficking.

In determining the penalty to be imposed, including for a section 118 human trafficking IRPA offence, the court must take into account whether:

1. bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence
2. the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization
3. the commission of the offence was for profit, whether or not any profit was realized
4. a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence (section 120)

5.12 Preparing for a Sentencing Hearing

5.12.1 Prepare throughout investigative stage

Have investigators prepare for the sentencing hearing at the investigative stage. Consider factors that will relate to sentencing such as facts that lend themselves to establishing aggravating/mitigating factors and obtain evidence for the proof thereof, including:

• documents
• photographs/video
• witness statements
• victim impact statements
• community impact statements
• reports from financial, medical and/or psychological experts

5.12.2 Submissions and Evidence at the Sentence Hearing

The rules regarding submissions and evidence permitted at a sentencing hearing are set out in sections 723-726 of the Criminal Code:

• Submissions: the prosecutor and defence may make any submissions on facts relevant to sentencing, which may include pre-sentence report, a Gladue report where the offender is Indigenous or an Impact of Race and Culture Assessment when the offender is racialized
• Evidence: any relevant evidence may be presented by the prosecutor, defence, or as requested by the court
• Witnesses: the court may compel the appearance of a compellable witness
• Hearsay: is admissible but a witness may be compelled if they have personal knowledge, are available and are compellable
• Facts :
  • statement of facts, agreed to by prosecutor and defence, may be relied on by the court
  • facts, express or implied, used by the jury to determine guilt may be accepted as proven
  • any other relevant fact disclosed by evidence at trial is accepted as proven; and,
  • the court may hear further evidence with respect to disputed facts:
  • the party wishing to rely on that fact has the burden of proof
  • either party may cross-examine any witness called by the other party
  • the court must be satisfied on a balance of probabilities of the existence of disputed facts
  • the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact, or any previous conviction by the offender
• Other offences: may be considered if possible and appropriate to do so, and if consented to by both parties.
• Offender: the court shall ask if the offender has anything to say before imposing sentence
• Relevant information: the court shall consider any relevant information placed before it by the prosecutor and the defence

5.13 The Role of the Victim at the Sentence Hearing

Human trafficking conduct inflicts trauma on victims. A trauma-informed approach throughout the criminal justice process, including at sentencing, is the best way to meet victims’ needs and minimize the trauma. Please see Chapter 3 for additional information on adopting a Trauma Informed Response.

5.13.1 Victim impact statements

One of the important aspects of prosecuting a human trafficking case is properly conveying to the court the extent of the harm that is caused to victims of human trafficking. Victims are often repeatedly traumatized, abused (physically and mentally), exploited and assaulted while under the control and direction of the traffickers. This aspect of the offence is one that should be the subject of submissions to the court in order to address the relevance of the sentencing objectives of both general and specific deterrence.

One of the ways in which this information may be presented to the court is through a victim impact statement, which allows a victim to describe the physical or emotional harm, property damage or economic loss suffered as the result of the commission of the offence and the impact of the offence on the victim. The statement must be prepared in writing, using Form 34.2 in Part XXVII of the Criminal Code. Each province and territory has victim services or non-governmental organizations that offer assistance to victims in preparing victim impact statements. This assistance ensures that victims are made aware of appropriate content for victim impact statements and that they receive support during the process. Support is particularly important for trafficking victims as preparing a victim impact statement may be an emotionally difficult experience due to the nature and severity of the harm they have suffered.

5.13.2 Harm to the Victim

While a victim impact statement can provide an opportunity for the court to hear firsthand how the crime impacted the victim, not all victims of trafficking will wish to prepare a victim impact statement or may simply be reluctant to deliver it in court. Subsection 722(5) of the Criminal Code requires the court, upon the victim’s request, to permit the victim to present their statement by:

• Reading it
• Reading it in the presence and close proximity of any support person of the victim’s choice
• Reading it outside the court room or behind a screen or other device that would allow the victim not to see the offender
• Presenting it in any other manner that the court considers appropriate

This could include, for example, having a third party read the statement in court or to simply have it filed with the court. Additionally, a photograph of the victim before the commission of the offence may accompany the presentation of the statement if, in the opinion of the court, it would not disrupt the proceedings (subsection 722(6)).

The welfare of the victim should be a primary consideration in any human trafficking case including during sentencing proceedings. For this reason, it is essential that the victim be provided with support through provincial/territorial victim services and victim‑serving organizations and agencies.^{Footnote 245} When approaching a sentencing hearing, the health, welfare, and privacy interests of the victim should be safeguarded to the greatest extent possible. Trafficking victims should be consulted regarding their desire to prepare a victim impact statement. They should be informed that the judge is required to consider the information in their victim impact statement when determining the appropriate sentence for the offender, that they may read their victim impact statement aloud at the sentencing hearing if they wish, and that they may be cross-examined on their victim impact statement.

Some victims may be so traumatized by the human trafficking events that they are unwilling or unable to assist the prosecution at the sentence hearing stage. In addition to obtaining the cooperation of the victim, there are other challenges related to presenting this evidence to the court. Properly quantifying the harm to the victim can be a difficult task. The harm may not be visible as is the case with psychological harm.

Victims may suffer from post-traumatic stress disorder in varying degrees and often will require counselling and other psychological support.^{Footnote 246} Reports from these experts, in some circumstances, may be used in the sentencing hearing to demonstrate the extent of the psychological harm to the victim.

The victim may also have been physically harmed. The medical reports demonstrating this physical harm should also be provided to the courts and consideration should be given to the immediate harm caused by the physical assault, the enduring or continuing rehabilitation required to help the victim heal and rebuild their lives, including their health and well-being, restoration of medical costs, and the additional reparations to address psychological trauma that the physical harm has caused.

Guidance for the use and procedures related to victim impact statements can be found in section 722 of the Criminal Code:

• The court shall consider a victim impact statement for the purpose of determining the sentence
• A victim impact statement describes harm done to or loss suffered by the victim due to the commission of the offence
• Victim impact statements must be prepared in writing, using Form 34.2 in Part XXVIII in the Criminal Code, in accordance with the procedures established by the province or territory; and,
• A victim may read their victim impact statement aloud if they wish

In addition, provincial/territorial victim services should be consulted regarding their victim impact statement programs to ensure that victims are aware of assistance that is available for the preparation of victim impact statements.

Additionally, the Criminal Code provides for community impact statements (subsection 772.2(1)), which must be prepared in writing on Form 34.3 in Part XXVIII of the Criminal Code. Community impact statements are made by an individual on a community’s behalf describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.^{Footnote 247} Where the victim is under 18, the Canadian Centre for Child Protection can provide a community impact statement specific to the commercial sexual exploitation of children. Where the victim is Indigenous, an Indigenous elder or member of the victim’s First Nation could provide a community impact statement to explain how the human trafficking offence has affected their community.

For additional information, please see:

• Justice Canada Victim Impact Statement Fact Sheet (https://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/victim-victime.html) (Justice Canada Victim Impact Statement Fact Sheet)
• Justice Canada Community Impact Statement Fact Sheet (https://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/community-collectivite.html)

5.13.3 Victim Surcharge

A victim surcharge is an additional penalty that may be imposed on offenders at the time of sentencing. The charge is 30 percent of any fine imposed, or, if there is no fine, $100 upon conviction for a summary offence and $200 upon conviction for an indictable offence. The court has the discretion to order an offender to pay a victim surcharge, or to pay a reduced amount where the court is satisfied that a victim surcharge would cause undue hardship^{Footnote 248} to the offender or would not cause undue hardship to the offender but would be disproportionate to the gravity of the offence or degree of responsibility of the offender. The victim surcharge is used by the province or territory where the crime occurred to help fund programs, services and assistance for victims.

5.14 Restitution Orders

Restitution is a payment which an offender is required to make to a victim to cover a readily ascertainable loss that a victim has sustained as a result of the commission of an offence. Restitution is a payment from the offender to the victim to reimburse expenses and must be distinguished from compensation, which is a payment from the state to the victim to recognize the harm that they have suffered as a result of their victimization. Sentencing courts are required to consider imposing a restitution order in all cases and to provide reasons when restitution is not ordered. The court is required to ask the prosecutor if reasonable steps have been taken to determine if a victim is seeking restitution.

A court can order restitution for financial losses resulting from:

• Damaged or lost property due to the crime (section 738(1)(a))
• Physical injury or psychological harm due to the crime or due to the arrest or attempted arrest of the offender (section 738(1)(b))
• Costs for temporary housing, food, childcare and transportation due to moving out of the offender’s household (this only applies if a victim moved out because they had been physically harmed or threatened with physical harm due to the offence, arrest, or attempted arrest of the offender) (section 738(1)(c))
• Costs incurred by a victim of identity theft to re-establish their identity, and to correct their credit history and their credit rating (section 738(1)(d))
• Costs incurred by a victim to remove their intimate image from the Internet or other digital network (section 738(1)(e))

For additional information, please see Justice Canada Restitution Order Fact Sheet (https://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/pdf/ro-eng.pdf).

5.14.1 Enforcement of Restitution Orders

If the offender fails to pay restitution as ordered, section 741 allows a victim to whom restitution is owed to file the restitution order in civil court in order to have it enforced as a civil judgment. Saskatchewan, Nova Scotia and Alberta have a restitution enforcement programs, which assist victims in collecting unpaid restitution orders. Some other provincial/territorial victims’ service programs in Canada provide various kinds of assistance to victims in enforcing restitution orders whether through a simplified process for filing the restitution order with the civil court and waiver of fees or assistance in preparing the necessary documents.

5.15 Probation Orders and Non-Communication Orders

Probation orders can be imposed instead of a period of imprisonment, provided there is no mandatory minimum penalty, or in addition to a sentence of less than 2 years. Probation orders have mandatory conditions and the Court can include optional conditions as well.

Additionally, non-communication orders can be ordered by a sentencing judge to prohibit an offender from directly or indirectly communicating with a victim, witness or any other identified individual during the custodial period of the sentence (section 743.21).

Please see Annex B for examples of sentencing cases that include prohibition and/or non-communication orders.

5.16 Other Ancillary Orders

There are a number of ancillary orders that can be ordered during sentencing, depending on the particular facts of the case. These ancillary orders include:

• A section 161 order (applicable where an offender is convicted for an enumerated offence with respect to someone under the age of 16)
• A mandatory weapons/firearm prohibition order (section 109)
• A discretionary weapons/firearm prohibition order (section 110)
• DNA order
• Forfeiture order
• Imposing a fine^{Footnote 249}
• Dangerous offender and long-term offender orders
• Sex offender information and registration order

Please see Annex B for examples of sentencing cases that include ancillary orders.

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