A Handbook for Criminal Justice Practitioners on Trafficking in Persons

2. The Law

2.1 Prohibition of Trafficking in Persons

Trafficking in persons (TIP) continues to garner significant attention, both domestically and internationally.  Despite the recent attention, TIP, often referred to as the new global slave trade, is not a new phenomenon.  Slavery, servitude, forced labour and similar practices have existed in one form or another for thousands of years.  The scope, incidence and impact of TIP has galvanized international interest in recent years and has made combating it a priority for the international community.  One way this has been done is through the enactment of new criminal offences to address this complex and evolving culpable behaviour.

Prior to the enactment of specific criminal offences, Canada’s criminal laws addressed TIP through offences of general application including but not necessarily limited to kidnapping (subsection 279(1)), forcible confinement (subsection 279(2)), aggravated sexual assault (section 273) and extortion (section 346) and the organized crime (sections 467.11-467.13) and prostitution-related offences (in particular, section 212). Footnote 4 These offences continue to be relevant to TIP cases, depending on the relevant facts.

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

Subsequently, in 2005 Canada enacted additional Criminal Code offences to more comprehensively address TIP in all its manifestations, as well as to target related culpable conduct.  Bill C-49, An Act to amend the Criminal Code (trafficking in persons) (S.C. 2005, c. 43) entered into force on November 25, 2005 and created three indictable offences to strengthen the criminal-law response to TIP: section 279.01 (main TIP offence), section 279.02 (financially benefiting from TIP) and section 279.03 (withholding or destroying documents to commit or facilitate TIP).  Further, in 2010, the new offence of trafficking in children was enacted, which is substantively the same as the main TIP offence (section 279.01), but imposes a mandatory minimum penalty of five or six years, depending on circumstances. Footnote 5

In 2012, the TIP provisions of the Criminal Code were further amended in the following ways:

  1. Created a new subsection 7(4.11) which enables the Canadian prosecution of Canadian citizens or permanent residents who commit, outside Canada, any Criminal Code trafficking in persons offence; and,
  2.  Enacted an interpretive provision to clarify the meaning of “exploitation” as defined in section 279.04.  This change is discussed in more detail in section 2.6, which explains the elements of TIP offences. Footnote 6

Further amendments were made in 2014 which added mandatory minimum penalties of four and five years, depending on circumstances, to the main TIP offence in the Criminal Code (section 279.01).  In addition, these amendments increased the maximum sentences and added mandatory minimum penalties to the material benefit offence as well as to the documents offence when they involve the trafficking of children (subsections 279.02(2) and 279.03(2)). Footnote 7

2.2 Specific Trafficking in Persons Criminal Code Provisions

279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable

  • (a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
  • (b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of a term of four years in any other case.

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

279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable

  • (a) to imprisonment for life and to a minimum punishment of imprisonment for a term of six years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
  • (b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case.

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

279.02 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years.

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

279.03 (1) Everyone who, for the purpose of committing or facilitating an offence under subsection 279.01(1), conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person’s identity or immigration status — whether or not the document is of Canadian origin or is authentic — is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

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

279.04 (1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused

  • (a) used or threatened to use force or another form of coercion;
  • (b) used deception; or
  • (c) abused a position of trust, power or authority

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

2.3 Trafficking in Persons IRPA Offence

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

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

120 A person who contravenes section 118 or 119 is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

121(1) The court, in determining the penalty to be imposed under subsection 117(2) or (3) or section 120, shall take into account whether

  • (a) bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence;
  • (b) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization;
  • (c) the commission of the offence was for profit, whether or not any profit was realized; and
  • (d) 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.

For the purpose of the criminal law provisions contained in the IRPA, “criminal organization” has the same meaning as in the Criminal Code; namely,

A group, however organized, that:

  1. is composed of three or more persons in or outside Canada; and,
  2. has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

2.4 Trafficking in Persons Criminal Code Offences: Key Elements

To date, there have been very few judicial interpretations of the specific trafficking in persons provisions, given their relatively recent enactment.  Therefore, the majority of the case law referred to below interprets similar legal standards in related contexts.

Recently though, in the matter of R. v. Stone and Beckford, Footnote 8 Miller J. of the Ontario Superior Court rejected a Charter application by the accused that s. 279.011, the provision targeting the trafficking of persons under eighteen, was unconstitutional on grounds of overbreadth or vagueness.

In dismissing the challenge, the Court observed that the offence requires a high level of mens rea, targeting people who intend to exploit others or who know that others intend to exploit.

The Court further found that s. 279.011 is not vague. Citing the Court of Appeal for Ontario’s decision in the Bedford Footnote 9 challenge to the Code’s prostitution provisions, where that Court found that the phrase “in circumstances of exploitation” was sufficiently precise, Mills J. rejected the accused’s argument that the concept of “exploitation” was difficult to understand or apply.

As of writing, there has been no appellate consideration of the constitutionality of the TIP offences, though the above decision provides a persuasive foundation that they are compliant with the Charter.

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

Although party-liability provisions could likely capture much of the conduct along the continuum if the offences had been more narrowly crafted, the offences consider as the principal anyone who does what is prohibited, without recourse to the concept of party liability.  Party-liability provisions should be kept in mind, though, as individuals who may not have committed any of the prohibited acts may nonetheless assist others to do so, and could be targets for investigation and prosecution as well (providing that there is evidence to suggest that the assistance was rendered with the requisite level of intent to exploit).

2.5 Section 279.01 of the Criminal Code — Trafficking in Persons

Every person who recruits, transports, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence

Section 279.01 contains the following key elements:

  1. Commission of one of the prohibited acts;
  2. The mental elements of either (a) having the purpose of exploiting another person or (b) the purpose of facilitating their exploitation by another person.

2.5.1 Prohibited Acts

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

Recruits, transports, receives, holds, conceals or harbours

These acts reflect the various stages of trafficking in persons as described in the previous chapter:  recruitment, transportation or harbouring.  The offence captures the entire trafficking continuum; engagement in just one of these trafficking “stages” is sufficient.

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

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

This phrase appears in both the old procuring offence of the Criminal Code (paragraph 212(1)(h)) as well as in the modernized version of this offence (section 286.3), Footnote 10 and has been judicially interpreted in that context as follows:

  1. “Control” refers to invasive behaviour which leaves little choice to the person controlled and therefore includes acts of direction and influence.
  2. Exercise of direction over the movements of a person exists when rules or behaviours are imposed.
  3. Exercise of influence includes less constricting actions; any action done with a view to aiding, abetting or compelling that person would be considered influence. Footnote 11

A 2010 Quebec case interpreting section 279.01 adopted the interpretation of “exercising control, direction or influence” found in Perreault. Footnote 12  The Quebec Court of Appeal upheld this approach in 2013. Footnote 13

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

Whichever aspect or element of the actus reus is alleged, it must be proved that the alleged action was done either for the specific purpose of exploiting another person or for the specific purpose of facilitating their exploitation by another.  It is the exploitative purpose that sets TIP apart from other crimes.  Reference must be made to the defined meaning of “exploitation” for the TIP-specific offences.  Section 279.04 states a person exploits another person if they:

279.04(1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused

  • (a) used or threatened to use force or another form of coercion;
  • (b) used deception; or
  • (c) abused a position of trust, power or authority

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

It should be noted that the first way that “exploitation” can be proved (i.e., under subsection (1)) is expected to account for the majority of TIP cases.  Organ or tissue removal as a form of TIP will be discussed separately below.

“For the Purpose of”

“For the purpose of” signifies the mental element for trafficking in persons offences (section 279.01 and 279.011).  That is, an accused must be found to have committed one of the acts “for the purpose of” exploiting or facilitating the exploitation of another person.  The Supreme Court of Canada has considered the meaning of “for the purpose of” on various occasions.  In R. v. Hibbert, Footnote 14 for instance, the Court noted that it is impossible to ascribe a single fixed meaning to the term “purpose” and, therefore, interpreting this term in a particular statutory context requires consideration of Parliament’s intention in using the word in a particular context.  However, it is clear that “for the purpose of” requires a subjective state of mind directed to the prohibited consequence (i.e., the exploitation or facilitation of exploitation of a person) — either an intention to have the prohibited consequence come about, or knowledge that its occurrence was a virtual certainty.  This position was adopted in the Stone and Beckford case referenced above and also by the Supreme Court in R v. Khawaja. Footnote 15

Exploiting or Facilitating Exploitation

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

Exploiting:  This branch of the offence would be used when the evidence indicates that the accused personally intended to exploit the victim.

Facilitating the exploitation:  This branch of the offence would be used when the evidence demonstrates that the person charged did not personally intend to exploit the victim, but knowingly facilitated exploitation by another person.

“Facilitating” or “to facilitate” is used in several offences in the Criminal Code, including section 83.19, which prohibits the facilitation of terrorist activity; section 172.1, which prohibits the luring of a child; and section 467.11, which prohibits participating in the activities of a criminal organization.  Generally speaking, in these contexts, “facilitation” has been interpreted to mean “to help bring about or to make it easier or more probable or to assist.”

See, for example, R. v. Legare Footnote 16; R. v. Lindsay; Footnote 17 R. v. Khawaja (2006) Footnote 18

2.5.3 Exploitation

Cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

It is important to remember that the offence of trafficking in persons targets the accused’s specific intent that the victim will be caused to provide their labour or service through conduct which could reasonably be expected would cause the victim to fear for their safety, or for the safety of someone known to them, if they did not provide their labour or service.  Thus, evidence which establishes the victim was actually caused to provide their labour or service (where such evidence exists) or would have been caused to provide their labour or service should be presented to help establish the specific intent of the accused to exploit or facilitate the exploitation of that victim.

To address concerns that the definition of exploitation was difficult to understand, subsection 279.04(2) was enacted and provides a non-exhaustive list of factors that a Court may consider in determining whether an accused exploits another person.  These factors include the use or threatened use of force or another form of coercion, deception or abuse of a position of trust, power or authority.

Coercion is best thought of as an umbrella term encompassing the use of means for a specific purpose.  Coercion need not be limited to physical force, and as the R. v. Stone and Beckford Footnote 19 case recently demonstrated, extends to acts that emotionally or psychologically restrain a victim.  This is consistent with the Supreme Court of Canada’s interpretation of coercion in the context of freedom of religion, where in R. v. Big M. Drug Mart Footnote 20 the Court explained the term in the following manner:

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

Labour or Services

The accused must be shown to have either caused another person to provide, or offer to provide, their labour or services, or to have done an act for the purpose of facilitating such conduct by another person.

“Labour or services” includes all forms of sexual and domestic services, and any kind of labour, such as work in the agriculture, restaurant, construction or any other industry. Labour or services provided toward criminal ends, such as participation in grow operations or transporting drugs, is also included.

In short, trafficking may occur within any industry, whether regulated by the state or not.

Means

The second step is proving the means by which the labour or service was extracted or intended to be extracted.  More specifically, that the labour or service was provided as a result of conduct that, in all the circumstances, could reasonably be expected to cause the victim to fear for their safety or for the safety of someone known to them if they failed to provide their labour or service.  This is drafted as an objective test — i.e., it is not necessary to prove that the victim was fearful for their safety — only that the circumstances were such that a reasonable person in the victim’s position would have had such a fear.

The nature of the accused’s conduct that is alleged to have caused or been intended to cause another person to provide his or her labour or services, is not directly specified in the definition of exploitation, though as noted above, subsection 279.04(2) provides a non-exhaustive list of behaviours that a court may consider in determining whether an accused exploited another person including all forms of coercion, as well as deception or the abuse of a position of trust, power or authority.  Ultimately, the focus is on the effect of the conduct in a given case on the hypothetical “reasonable” victim. Accordingly, it is both the nature of the conduct and the context in which the accused engages in that conduct that is integral to the determination of its expected effect on the complainant.

The prohibited conduct will be useful evidence for this purpose — the exertion of control over the victim’s movements and activities will certainly be relevant to demonstrating a reasonable apprehension of fear on the part of the victim.

Other forms of conduct that may be relevant include: Seemingly discreet instances that appear innocuous in isolation (Bell Footnote 21), such as a warning that a foreign national victim might be deported if she/he fails to comply with the demands of his/her trafficker.  For the relevance of the context of the accused’s conduct in determining its likely impact on the victim, see:  Kohl, Noble, Bell Footnote 22.  Also, any history of abuse between the accused and the victim ought to be factored into the assessment of the effect of the accused’s conduct on the complainant (Di Pucchio Footnote 23).

Although the use of threats, force or other forms of coercion is not necessary to demonstrate exploitation, evidence to this effect would clearly assist.

Could reasonably be expected to cause the other person to believe

It must be established that the conduct, in all the circumstances, could reasonably be expected to cause the victim to believe that their safety or the safety of a person known to them would be threatened, if the victim failed to comply with the accused’s demands. This does not require the victim to assert that they feared for their safety (although this would be the strongest evidence, provided that their fear was shown to be reasonable) or for the safety of someone known to them.  Instead, it requires evidence that demonstrates objectively that a reasonable person, standing in the shoes of the victim, would be afraid having regard to all of the circumstances including the age, gender and other considerations specific to the victim.

This approach deliberately differs from the approach taken in the context of criminal harassment.  Under section 264, the wording of the offence makes clear that the conduct causes the person reasonably, in all the circumstances, to fear for their safety. Under sections 279.01 and 279.011, the test is whether the conduct “could reasonably be expected to cause”.  Whereas the harassment offences require proof of both a) subjective fear on the part of the victim and b) reasonableness of that fear, TIP requires only the latter — i.e., reasonableness of the fear, whether or not it is proved that the victim actually and subjectively experienced that fear.

Assessing reasonableness requires an objective foundation, based on a “reasonable person’s view” (R. v. Sillip Footnote 24).  That said, the “reasonable person” standard must take into account all of the victim’s circumstances to effectively protect the most vulnerable members of society (R. v. Gauthier Footnote 25).  This can include gender, age and circumstances surrounding the relationship which existed or which had existed, if any, between the accused and the victim.

Safety

The term “safety” has been judicially interpreted in the context of the criminal harassment offence (section 264) to include mental, psychological and emotional safety:  R. v. Hau Footnote 26; R. v. Skoczylas Footnote 27; R. v. Lafreniere Footnote 28; R. v. Hertz Footnote 29; and R. v. Gowing. Footnote 30 R. v. Goodwin Footnote 31 held that victims of harassment do not have to “suffer ill health or major disruption in their lives before obtaining the protection of section 264.”

Someone Known to the Victim

Someone known to them can include family members such as a mother, father, brother, sister, child or a friend:  R. v. Dupuis Footnote 32 and R. v. Dunnett Footnote 33.

Organ or Tissue Removal

Subsection (3) of the definition of exploitation in section 279.04 allows for an alternate way to prove exploitation, which applies where a victim has had organs or tissue removed by means of deception or the use or threat of force or of any other form of coercion.

There have been no known cases of trafficking in persons for the purpose of organ removal in Canada.  Canada’s regulated health-care system may provide safeguards in this regard.

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

279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable.

  • (a) to imprisonment for life and to a minimum punishment of imprisonment for a term of six years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
  • (b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case.

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

Elements of the Offence

Establishing the offence at section 279.011 is exactly the same as proving the offence at section 279.01 except that it must also be established that the victim was under the age of 18 years.  Where it is shown that the accused believed the victim was over the age of 18 years of age, they can nonetheless be convicted under the primary offence (section 279.01).

2.7 Section 279.02: Material Benefit

279.02 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years.

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

Elements of the Offence

This offence requires proof, beyond a reasonable doubt, that:

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

The concept of “financial or material benefit” is also used in the definition of “criminal organization” contained in section 467.1 of the Criminal Code.  In that context, the courts in Canada have interpreted the concept of material benefit broadly.  In one decision, the Court noted that a material benefit specifically includes, but is not limited to, a financial benefit.  Whether something amounts to a material benefit will always depend on the facts of a particular case. Footnote 34

2.8 Section 279.03: Withholding or destroying documents

279.03 (1) Everyone who, for the purpose of committing or facilitating an offence under subsection 279.01(1), conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person’s identity or immigration status — whether or not the document is of Canadian origin or is authentic — is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

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

Elements of the Offence

This offence requires proof beyond a reasonable doubt that the accused:

  1. concealed, removed, withheld or destroyed any travel or identity document; and,
  2. that the accused concealed, or removed, or withheld or destroyed the travel or identity document with the intention of committing or facilitating the commission of an offence under either subsection 279.01(1) or 279.011(1).

It is not necessary to prove that an offence under either subsection 279.01(1) or 279.011(1) was actually committed.

2.9 Immigration and Refugee Protection Act

In addition to the Criminal Code offences on human trafficking, the Immigration and Refugee Protection Act (IRPA) also contains an offence which prohibits the trafficking of persons into Canada:

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

Elements of the Offence

Act Elements

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

Organizing

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

Moreover, other act elements from related offences in IRPA, such as s. 117 (organizing illegal entry into Canada), are also likely to apply to prosecutions under s. 118.  For example, under s. 117, organizing has been found to mean to initiate or make arrangements for or to enlist a person or group to enter Canada (R. v. Chen Footnote 35).

Fraud and Deception

In R. v. Ng, Footnote 36 the Court confirmed that the means of fraud or deception as specified in subsection 118(2) are not constitutionally overbroad or vague.  The Court agreed with the Crown that the inclusion of fraud and deception is consistent with and complies with theinternational instruments to which Canada is a party.

However, it should be noted that Ng Footnote 37 held that the Crown must show that the accused engaged in specified acts to cause the victim to act to their detriment.  The Court relied on the following passage from London & Globe Finance Corp. Ltd. Footnote 38 to reach this conclusion:

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

Coercion

As discussed above in the context of the Criminal Code TIP offences, coercion is an umbrella term encompassing the use of means for a specific purpose.  Coercion need not be limited to physical force, and as the R. v. Stone and Beckford Footnote 39 case recently demonstrated, can also extend to acts that emotionally or psychologically restrain a victim.

Mental Element

1. The accused knowingly organized the coming into Canada;

While there is minimal case law available on the mental element for section 118, in many cases, a strong inference may be drawn by a court that the accused has the requisite intent if the Crown is able to prove the act elements.

With respect to fraud and deception, it should be noted that the concept of fraud, from a criminal law perspective, includes a mental element of intent to deprive the victim.  The notion of deception also implicitly requires some knowledge and/or intention regarding the accused’s act being done in order to deceive.

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