Fact Sheet #5: Trafficking in Persons - Sentencing
Under both the Criminal Code and the Immigration and Refugee Protection Act, the maximum sentences for trafficking in persons offences are at the very high end of the penalties prescribed by Canadian law. These penalties are a statement by Parliament about the nature and seriousness of these 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.
When making sentencing submissions before a court in a human trafficking case, it is important to convey the extent of the harm that is caused to victims, including through the submission of victim impact statements. Victims are often repeatedly traumatized, abused (physically and psychologically), exploited and assaulted while under the control and direction of the traffickers. Sentencing objectives of both general and specific deterrence are particularly relevant in such cases.
General Objectives and 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: denunciation, specific and general deterrence, separation of offenders from society, rehabilitation, reparation for harm done to victims and the promotion of a sense of responsibility in offenders. A sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Aggravating Factors Listed
Section 718.2 sets out a number of additional sentencing principles, including the principle that a sentence should be increased or reduced to reflect any relevant aggravating or mitigating factors. Of the aggravating factors listed, those which are most likely to be present in human trafficking cases include:
- Evidence that the offender, in committing the offence, abused a person under the age of 18 years (subparagraph 718.2(a)(ii.1));
- 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)); and
- 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)).
Other Aggravating Factors
In addition to those aggravating factors which a court must take into consideration, other factors which may be relevant in a human trafficking case include:
- Preying upon vulnerable victims: such as individuals with precarious immigration status, women, children, those who are marginalized or isolated, and those who are financially destitute;
- Offence involved planning and deliberation or a level of organization;
- Previous convictions or involvement with the judicial system;
- Duration of crime: 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;
- Offence was motivated by financial or material gain: human trafficking cases centre on the exploitation of victims for the financial or material gain of the offenders;
- Violence and/or the use of weapons: violence, threats of violence and other conduct engaged in by an offender to coerce the victim to provide their labour or services will be present in almost all trafficking cases;
- Intimate relationship with the victim: where an offender seduces his victim and use the emotional bond as a way to manipulate and control his victim;
- Use of drugs or alcohol to maintain control over the victim or as inducements; and
- Exposure to serious illness or injury: malnutrition, unsanitary living conditions, lack of adequate medical care, exposure to sexually transmitted infections (HIV/AIDS).
Mitigating Factors may also be present in a human trafficking case:
- First-time Offender: the fact that the offender has no previous criminal record;
- Remorse or conduct following arrest/early guilty plea/cooperation with the police and prosecutor;
- Offender was previously a victim of human trafficking: reasons why a victim becomes a trafficker and any past history of victimization may be relevant as mitigating factors;
- Young age of the offender.
Preparing for a Sentencing Hearing
Investigators should prepare for the sentencing hearing during the investigative stage. They should consider factors that will relate to sentencing and obtain evidence for the proof thereof, including:
- witness statements;
- victim impact statements (read aloud in court by the victim, by a third party or filed); and
- reports from financial, medical and/or psychological experts.
Each province and territory has created a victim impact statement form, and all provincial/territorial victim-services organizations offer assistance to victims in preparing victim impact statements. This 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.
For more information on TIP, please consult Chapter 5 of the Handbook for Criminal Justice Practitioners on Trafficking in Persons.
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