Fact Sheet #1: Trafficking in Persons Specific Offences

What is Trafficking in Persons?

Trafficking in persons (TIP), often described as a modern-day form of slavery, involves the recruitment, transportation, harbouring and/or control of the movement of persons for the purpose of exploitation, typically for sexual exploitation or forced labour. Victims are compelled to provide their labour or services under circumstances which could reasonably be expected to cause them to fear for their own safety, or for the safety of someone known to them, if they failed to do so. In Canada, there are six offences under the Criminal Code and one offence under the Immigration and Refugee Protection Act (IRPA) that specifically address TIP, as detailed below.

Criminal Code Offences

1. Trafficking in persons: section 279.01

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.

• Penalty: A maximum penalty of life imprisonment and a mandatory minimum penalty of 5 years imprisonment where the offence involved kidnapping, aggravated assault, aggravated sexual assault or death, or a maximum penalty of 14 years imprisonment and a mandatory minimum penalty of 4 years imprisonment in all other cases.
• Prohibited acts or conduct: The accused must have engaged in at least one of the prohibited acts or conduct (i.e., recruited, transported, harboured a person or exercised control, direction or influence over the movements of a person). Although the offence captures the entire trafficking continuum, engaging in only one prohibited act for an exploitative purpose is sufficient to be charged under this offence.
• Mental element: The prohibited act must have been committed for the purpose of exploiting another person or facilitating their exploitation. This means the accused must have intended to exploit another person or knew its occurrence was a virtual certainty. Note that actual exploitation does not need to be proven.
• Exploitation (section 279.04): Causing someone to provide, or offer to provide, labour or a service by engaging in conduct that could reasonably be expected to cause that person to believe that their safety, or the safety of a person they know, would be threatened if they failed to do so. Proving exploitation requires evidence that demonstrates objectively that a reasonable person, standing in the shoes of the victim, would be afraid – taking into consideration the circumstances specific to the victim (e.g., age, gender, national/ethnic origin, socio-economic conditions, etc.).
• Defence of consent: Consent of a victim is no defence to a trafficking in persons charge.

2. Child trafficking: section 279.011

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.

• Penalty: A maximum penalty of life imprisonment and a mandatory minimum penalty of 6 years imprisonment where the offence involved kidnapping, aggravated assault or aggravated sexual assault or death, or a maximum of 14 years imprisonment and a mandatory minimum penalty of 5 years imprisonment in all other cases.
• Elements of offence: Identical offence in all respects to the main offence under section 279.01, except for the requirement to establish that the victim was under the age of 18 years and that the accused knew that the victim was under 18.
• Age of the victim: Where a reasonable doubt exists that the accused knew that the victim was under the age of 18 years, he or she may still be convicted under the lesser and included offence provided for in section 279.01.

3. Financial/Material benefit: subsection 279.02(1) – Adult Victim

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.

• Penalty: A maximum penalty of 10 years imprisonment.
• Prohibited acts or conduct: (1) The accused received a financial or a material benefit; (2) the benefit was obtained by or derived from the commission of the trafficking in persons offence; (3) the TIP offence occurred, although a conviction under section 279.01 is not necessary.
• Mental element: The accused knew that the benefit was derived from the commission of the trafficking in persons offence.

4. Financial/Material benefit: subsection 279.02(2) – Child Victim

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.

• Penalty: A maximum penalty of 14 years imprisonment and a mandatory minimum penalty of 2 years imprisonment.
• Elements of offence: The accused knew that the benefit was obtained by or derived from the commission of the child trafficking offence (section 279.011). The act elements are the same as the ones prohibited under subsection 279.02(1).
• Age of the victim: Where a reasonable doubt exists that the accused knew that the benefit was obtained by or derived from the commission of the child trafficking offence, he or she may still be convicted under the lesser and included offence provided for in subsection 279.02(1).

5. Withholding or destroying documents: subsection 279.03(1) – Adult Victim

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.

• Penalty: A maximum penalty of 5 years of imprisonment.
• Prohibited acts or conduct: The accused concealed, removed, withheld or destroyed any travel or identity document (e.g., passport, visa, birth certificate, identity card).
• Mental element: The prohibited act must be shown to have been done for the purpose – meaning with the intention - of committing or facilitating trafficking in persons (section 279.01).

6. Withholding or destroying documents: subsection 279.03(2) – Child Victim

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.

• Penalty: A maximum penalty of 10 years imprisonment and a mandatory minimum penalty of 1 year imprisonment.
• Prohibited Acts or conduct: Identical offence in all respects to the offence under subsection 279.03(1), except for the requirement to establish that the document was withheld or destroyed for the purpose of committing or facilitating child trafficking (section 279.011).
• Age of the victim: Where a reasonable doubt exists that the accused knew that the victim was under the age of 18 years, he or she may still be convicted under the lesser and included offence provided for in subsection 279.03(1).

Trafficking in Persons IRPA Offence

1. Trafficking in persons, subsection 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.

• Penalty (section 120): Indictable offence punishable by a maximum penalty of $1 million and/or life imprisonment.
• Prohibited acts or conduct: The accused organized the coming into Canada of one or more persons which includes recruited or transported and, after their entry into Canada, their receipt or harbouring, by means of abduction, fraud, deception or use or threat of force or coercion (subsection 118(2)).
• Mental element: The accused committed the prohibited act knowingly.
• Limit: This offence is limited to the trafficking of persons into Canada; therefore, it is a transnational offence.
• Aggravating factors (section 121): bodily harm or death resulted, life or safety endangered, offence committed for the benefit of a criminal organization, offence committed for profit, victim subjected to humiliating or degrading treatment, including sexual exploitation.

For more information, please consult Chapter 2 of the Handbook for Criminal Justice Practitioners on Trafficking in Persons.