Fact Sheet #6: Trafficking in Persons - Pre-trial Detention/Release

At an early stage of a human trafficking investigation/prosecution, police officers can play an important role in supporting applications for pre-trial detention, when justified, investigating possible sureties and associates, or engaging in proactive monitoring of an accused to ensure that they are complying with their conditions. This can be a vulnerable time for trafficked victims, especially if accused are released and do not abide by their conditions, such as “no contact” conditions. Moreover, the victims’ perception of their safety can be important to maintaining their cooperation in the prosecution of TIP offences.

Pre-trial Detention/Release

Grounds for Detention

All three grounds of detention in subsection 515(10) are potentially applicable bases for seeking the detention of an accused charged with trafficking in persons offences. The following considerations are particularly germane to TIP cases:

• Primary grounds (ensuring the offender’s attendance to court): pay special attention to the mobility of the accused, they may have methods of moving from one country to another or across the country without being observed. Ensure passports are surrendered;
• Secondary grounds (protection and safety of the public, victims and witnesses): given the violence and threats inherent with the offence of trafficking in persons, victim/witness protection and safety is a prime consideration; and
• Tertiary ground (maintaining the confidence in the administration of justice): the gravity of the offence and the potential for the accused to receive a lengthy term of imprisonment are some of the key factors for consideration (sub-paragraphs 515(10)(c)(ii) and (iv)).

Onus

While the trafficking in persons offences do not per se trigger a reverse onus on a bail hearing, even where a firearm is involved, there may be features of a case that do trigger the reverse onus (e.g., the accused is charged with a criminal organization offence under sections 467.11, 467.12, or 467.13, or where it is alleged that the human trafficking offence was committed for the benefit of, at the direction of, or in association with a criminal organization, see sub-paragraph 515(6)(a)(ii)).

Preparation for the Bail Hearing

Good preparation for the bail hearing can help secure the pre-trial detention of the accused in appropriate cases. Therefore it may be helpful for the prosecutor to seek an adjournment pursuant to subsection 516(1) of the Criminal Code, either prior to the commencement of the hearing or once it is underway and the need for further investigation becomes apparent. If the prosecutor does obtain an adjournment, the prosecutor should generally request a non-communication order for that period of remand, pursuant to subsection 516(2).

When preparing for a bail hearing, below are some considerations to keep in mind:

• Consider having the officer attend and testify at the bail hearing;
• Have the proposed sureties investigated;
• If the accused had outstanding charges at the time of the offence, take steps to have the earlier release revoked pursuant to section 524;
• Where the accused is not from Canada, the police should try to determine if the accused has a criminal record or outstanding charges in his/her home country or elsewhere;
• Contact the Canadian Border Services Agency (CBSA) if the accused is not a Canadian citizen;
• Consider preparing a package of material to file with the court (e.g., victim’s and accused’s  statements, background of the accused and the victims, corroborative material such as debt lists and ledgers, immigration documents, cell-phone records, surveillance, videos as well as before and after photos of the victim);
• Remember that procedural rules of evidence are reduced to a minimum (hearsay is generally admissible and so is the criminal record of the accused, pending charges, etc.) (section 518(1)); and
• Where bail supervision programs are available, seek conditions regarding reporting and residency. Bail supervisors can play an instrumental role in monitoring an accused and inform the Crown of any breaches of release conditions.

Non-Communication Order upon Detention

Where the accused is ordered detained, the prosecutor should generally seek a direction, pursuant to subsection 515(12), that the accused abstain from communicating, directly or indirectly, with any victim, witness or other identified person.

Conditions of Release

Mandatory Conditions or Considerations

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

• Mandatory firearms and weapons prohibition: Paragraph 515(4.1)(a) requires the inclusion of a condition prohibiting the accused from possessing a firearm or prohibited weapon, unless the justice considers that it is not required in the interests of safety of the accused or the safety and security of a victim or any other person;
• Non-communication condition: Paragraph 515(4.2)(a) requires the justice to consider whether this condition is desirable or not. The prosecutor should urge such a condition in respect of the victim, family of the victim, witnesses, and associates of the accused; and
• Remain away condition: Paragraph 515(4.2)(a) also requires the justice to considerwhether it is in the interests of the safety and security of a victim, witness, justice system participant, or any other person, to include a condition that the accused refrain from going to any place specified in the order (e.g., where the offence occurred and/or victim is living).

Optional Conditions

In most cases, the prosecutor should consider asking for conditions that the accused:

• Have sureties;
• Report to a peace officer;
• Remain within a particular territorial jurisdiction;
• Deposit his/her passport;
• Reside with the surety at a named address;
• Notify any change of address and employment;
• Be under house arrest and/or keep a curfew, except with written permission from a designated person; and
• If relevant to the facts of the case, that the accused not consume drugs, except in accordance with a medical prescription, alcohol or any other intoxicating substance.

Publication Bans during Bail Proceedings

Section 517 of the Criminal Code enables a prosecutor to apply for a publication ban covering the bail proceedings in order to ensure the proper administration of justice.

For more information on TIP, please consult Chapter 4.5 of the Handbook for Criminal Justice Practitioners on Trafficking in Persons.