A Handbook for Criminal Justice Practitioners on Trafficking in Persons
1. What is Trafficking in Persons
Trafficking in persons (TIP) is a serious crime. TIP involves an act committed for the purpose of exploiting someone’s labour or services. Victims are compelled to provide their labour or services under circumstances which would be reasonably expected to cause them to fear for their own safety — or for the safety of someone known to them — if they refuse to provide that service or labour. Unlike most other offences, TIP violates the autonomy of its victims, often through repeated acts of violence or threats of violence, manipulation and psychological control. These acts or threats of violence will frequently, in and of themselves, constitute separate criminal acts.
1.1 Purpose of this Handbook
The purpose of this Handbook is to provide criminal justice practitioners with guidance in the investigation and prosecution of human trafficking cases. While much of the conduct that forms the basis of human trafficking offences is not new, the particular way that the law has criminalized this conduct is relatively recent, not only in Canada but also in countries around the world. Accordingly, this Handbook is designed to assist front-line personnel and improve the capacity of the criminal justice system to bring traffickers to justice while fully respecting the rights and needs of victims. It is further hoped that this Handbook will promote a consistent criminal justice response to this crime. As appropriate, the strategies contained in this Handbook may be adapted to respond to the particular needs of individual jurisdictions.
This Handbook supports a commitment by Federal, Provincial and Territorial (FPT) Ministers responsible for Justice and Public Safety to work more closely in addressing human trafficking. It was developed by a working group of FPT officials with expertise in criminal justice matters. It has been informed by promising practices developed around the world, as well as by Canadian successes in investigating and prosecuting human trafficking cases. FPT Ministers responsible for Justice and Public Safety endorsed this Handbook at their 2013 meeting.
The chapters in this Handbook provide information that is organized to be relevant at various stages of the criminal justice process. This first chapter provides baseline data including an overview of the phenomenon of human trafficking, what is known about TIP in Canada, the impact it has on victims, the profile of offenders, as well as information on the international community’s response to this crime in recent years.
Chapter 2 provides an overview of the legislative history of human trafficking and other related offences used to address this crime. It further breaks down TIP-specific offences into their constituent elements.
Chapter 3 is directed at law enforcement. It includes information designed to assist in the interview of victims and other potential witnesses. Importantly, it identifies the relevant safety considerations in TIP cases and how to provide for the physical, psychological and social recovery of victims. It includes indicators of potential TIP cases as well as tips for crime scene examination. Among other things, it also provides guidance on laying charges, reliance upon peace bonds, and releasing an accused from custody. Lastly, it includes useful information for the investigation of TIP cases with international dimensions.
Chapter 4 is directed at Crown prosecutors. Interviewing victims, running a bail hearing and conditions of release, the use of testimonial aids, and proceeds of crime considerations are all canvassed in this chapter.
Chapter 5 focuses on sentencing considerations. It provides practical guidance to prosecutors on considerations that are likely to apply in human trafficking cases, such as relevant sentencing principles, and common aggravating and mitigating factors. It also provides information on preparing sentencing submissions and on the role that victims can play in the sentencing process.
Chapter 6 provides information on victim services available in Canada.
1.3 What is Trafficking in Persons?
Trafficking in persons 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 required to provide (or offer to provide) their services or labour as a result of conduct that, in all the circumstances, could reasonably be expected to cause the victim to fear for their own safety — or for the safety of someone known to them — if they refuse to provide that service or labour. Victims suffer physical, sexual and/or emotional abuse and often live and work in horrific conditions.
The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Trafficking Protocol) articulates the most widely accepted international framework for addressing TIP and calls upon States Parties to take steps to prevent trafficking, protect victims and prosecute offenders. The Trafficking Protocol is the only globally binding international instrument which contains an agreed upon definition of trafficking in persons. Canada ratified the Trafficking Protocol and its parent convention, the Convention against Transnational Organized Crime, on May 13, 2002.
Article 3 of the Trafficking Protocol reads:
- “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
- The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
- The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
- “Child” shall mean any person under eighteen years of age.
Article 5 the Trafficking Protocol obligates States Parties to criminalize trafficking in persons in accordance with the definition contained in Article 3. How Canada has implemented these obligations (and accordingly criminalized TIP) is discussed fully in Chapter 2.
1.4 Difference between Trafficking in Persons and Migrant Smuggling
Sometimes human trafficking and migrant smuggling cases are confused. They are, however, different crimes and involve different conduct. Understanding the differences between the two is critically important from an investigatory perspective and treating a trafficking case as a smuggling case can have significant implications for trafficked persons.
The main differences between trafficking in persons and migrant smuggling are as follows:
- Human smuggling is, by definition, a transnational crime whereas trafficking in persons is not;
- Human smuggling generally involves the consent of the person smuggled. Trafficked victims have either never consented or their consent has been rendered meaningless by the improper means used by the trafficker;
- Smuggled persons are generally free to do what they want once they arrive at their country of destination. In contrast, trafficked persons have their liberty curtailed and are compelled to provide their labour and/or services; and
- The source of profit for human smuggling is the fee associated with the smuggling act. In trafficking cases, profits are made through the ongoing exploitation of the victims.
Despite these differences, smuggled persons may become trafficking victims; therefore it is crucial to properly identify these crimes in practice.
1.5 Impact on the Victim
Trafficked persons may be subjected to repeated acts of physical, sexual and psychological violence resulting in significant and enduring ill effects on physical and mental health. Trafficked persons also face a number of health risks and diseases ranging from sexually transmitted infections such as HIV/AIDS to malnutrition. In many cases, unsanitary, crowded living conditions, poor nutrition and lack of adequate medical care also contribute to a host of adverse health conditions. While some of the physical damage from trafficking may be treated with appropriate medical care, the psychological consequences may endure. As noted by the United Nations Office on Drugs and Crime:
The trafficking experience may create a systematic disruption of basic and core attachments to family, friends and religious and cultural systems; the destruction of central values relating to human existence; and the creation of shame following brutal acts including torture and rape. Relationships may be changed, including those with the general community and authority figures, leading to a general sense of mistrust of others and a fear of forming new relationships. The capacity for intimacy may be altered, grief may be pronounced and depression may be overwhelming. The results of the experience can be everlasting, even with treatment. Footnote 1
Human trafficking has wide-reaching societal impacts including:
- Separating trafficked persons from their families and communities, including children from their parents;
- Impeding education, development and future productivity;
- Losing one’s culture and language, especially for young children;
- Stigmatizing and ostracizing of victims; and,
- Reinforcing the cycle of poverty and illiteracy that stunts national development.
For more detailed information on the health effects on persons that have been trafficked, please see:
Caring for Trafficked Persons, Guidance for Health Providers, International Organization for Migration (2010)
The Health Risks and Consequences of Trafficking in Women and Adolescents: Findings from a European Study, London School of Hygiene and Tropical Medicine (2003)
1.6 Profile of Offenders
Available information indicates that traffickers tend to fall into three broad categories: members of large criminal organizations, members of small criminal groups, or individual criminals. Footnote 2 Canadian prosecutions to date demonstrate that the majority of perpetrators of this crime in Canada are male, although female offenders have also been identified. Other characteristics about Canadian offenders and cases include: Footnote 3
- Many human trafficking suspects have been linked to other organized criminal activities, such as conspiracy to commit murder, credit card fraud, mortgage fraud, immigration fraud, and organized prostitution, in Canada or abroad;
- Human trafficking suspects usually share similar ethnicity with their associates and have ethnic ties with source countries of their victims;
- Suspected transnational trafficking networks are believed to have operators based in source countries to facilitate the recruitment and transport activities of the trafficking process. Some organizers likely provide high-quality false travel documents for victims to travel illegally to Canada;
- Organized crime networks with Eastern European links have been involved in the organized entry of women from former Soviet states into Canada for employment in escort services in the Greater Toronto Area and possibly in massage and escort services in the Montreal area. These groups have demonstrated transnational capabilities and significant associations with convicted human traffickers in the Czech Republic, Germany, Belarus, and Israel; and,
- Domestic human trafficking victims have mostly been recruited through the Internet or by an acquaintance. The victims were groomed, manipulated and coerced into entering the sex trade.
1.7 Canada’s experiences to date with Human Trafficking
Canada is believed to be primarily a destination country for human trafficking. Asia and Eastern Europe are believed to be the primary originating regions for persons trafficked into Canada for sexual exploitation. Trafficked women of Asian ethnicity, who may be recruited within Canada or abroad, have been identified in bawdy houses operated by Asian organized crime groups. The women may be foreign nationals, Canadian citizens or permanent residents.
Although it is difficult to truly ascertain a comprehensive picture of the nature and scope of human trafficking in Canada, experience from human trafficking investigations to date suggests that trafficking for sexual exploitation is more prevalent in Canada than trafficking for labour exploitation, particularly in large urban centres. Labour trafficking does, however, occur in Canada as evidenced by a number of recent successful prosecutions. Cases of transnational human trafficking are particularly difficult to detect and investigate due to the challenges involved in conducting an international investigation and in obtaining victim cooperation. Victims are often reluctant to cooperate with investigators because of cultural issues, language barriers, lack of trust in police and a desire to simply return home and not reveal what they were forced to do in Canada. Those who are the most socially or economically disadvantaged or otherwise vulnerable, are often the most likely to become victims of this crime. Foreign nationals, permanent residents and Canadian citizens have all been victims of this crime.
The Royal Canadian Mounted Police (RCMP) concluded Canada’s first national threat assessment on this crime in 2010. The Executive Summary, including its key findings can be accessed at: http://www.rcmp-grc.gc.ca/pubs/ht-tp/htta-tpem-eng.htm.
1.8 Canadian Prosecutions to Date
The RCMP’s Human Trafficking National Coordination Centre endeavours to collect statistics on human trafficking charges and prosecutions in Canada. According to RCMP data, between 2004 and December 2014, human trafficking specific charges were laid in a total of 264 cases involving 431 accused. Of the total, 121 cases have been completed through the courts and their outcomes are as follows:
- 33 cases were completed with human trafficking specific convictions and involved 51 accused.
- 38 accused were convicted of human trafficking specific offences (Criminal Code sections 279.01 to 279.03, Immigration and Refugee Protection Act (IRPA) section 118). Convictions were also secured, in these cases, for other Criminal Code offences, such as those related to prostitution (section 212), sexual interference (section 151), sexual exploitation (section 153), obstructing justice (section 139), assault (sections 266 to 268), sexual assault (sections 271 to 273), uttering threats (section 264.1), kidnapping (section 279(1)), forcible confinement (subsection 279(2)), robbery (section 344), extortion (section 346), possession of a weapon for a dangerous purpose (section 88), child pornography (section 163.1), firearms (sections 85 ff.), the Controlled Drugs and Substances Act (CDSA), and IRPA offences, such as employing a foreign national (section 124(1)(c)), and misrepresenting facts (section 127(a)).
- 9 accused were convicted of other Criminal Code offences, such as those related to prostitution (section 212), sexual interference (section 151), sexual assault (sections 271 to 273), invitation to sexual touching (section 152), and obstructing justice (section 139).
- Charges against 4 accused were withdrawn or stayed.
- 52 cases were completed with convictions for other offences and involved 68 accused.
- 62 accused were convicted of other Criminal Code offences, such as those related to prostitution (sections 210 and 212), breach (section 811), assault (sections 266 to 268), child pornography (section 163.1), forcible confinement (subsection 279(2)), criminal harassment (section 264), uttering threats (section 264.1), fail to comply (section 145), laundering proceeds of crime (section 462.31), extortion (section 346), sexual assault (sections 271 to 273), robbery (section 343), drug-related offences under the CDSA, and IRPA offences, such as organizing entry into Canada (section 117).
- Charges against 6 accused were withdrawn, stayed, or the accused were acquitted.
- 36 cases were completed with other outcomes and involved 49 accused. The outcomes were as follows:
- Charges against 48 accused were withdrawn, stayed, or the accused were acquitted.
- One accused died before a judgement could be rendered.
Of the 264 human trafficking specific cases, 143 remain before the courts.
It is recognized that these statistics likely do not represent all trafficking cases processed by the criminal justice system. This is due to a variety of factors, including the difficulty of identifying data reported by police and by other sectors of the criminal justice system (e.g., courts) as "trafficking" cases. For example, charges and/or convictions in human trafficking cases may be laid and/or prosecuted under trafficking-specific or other non-trafficking-specific offences, such as kidnapping or aggravated sexual assault. In addition, the number and type(s) of charges laid and reported by police may subsequently change (either at the pre-court stage or during the court process) by the time of conviction.
1.9 Global Considerations
The challenges in identifying and estimating the extent of human trafficking in Canada are not unique to this country. It is equally difficult to provide an accurate global estimate of this activity. Factors contributing to this lack of accurate information include:
- The reluctance of victims to come forward due to fear for their life or for the life of someone known to them, or because they lack faith in justice systems;
- Challenges in distinguishing between trafficking and other offences; and,
- Definitions of trafficking differ from one country to another.
Despite these factors, some general observations can be made. A disproportionate number of women and children are victims of this crime. According to the United Nations (2014 Global Report), women and girls represent 49 and 21 percent of victims, respectively, while men and boys represent 18 and 12 percent. The UN has estimated that 700,000 people are trafficked each year.
Trafficking in persons is often characterized as a “low risk, high-reward” activity because of the practical difficulties of identifying, investigating and prosecuting cases and the enormous profits available to those who commit this crime. The UN has estimated that trafficking in persons generates approximately $32 billion annually in illicit revenue.
1.10 Global Strategies to Combat Human Trafficking
Human trafficking, and responding to it, has been and continues to be viewed from different perspectives including: (a) human rights, (b) migration, (c) violence against women, (d) crime/organized crime, and (e) labour and development. Regardless of perspective, however, the globally accepted response paradigm, as reflected in the Trafficking Protocol, is a multi-disciplinary framework involving prevention, victim protection, offender prosecution and broad partnership. This broad framework provides the flexibility required to incorporate and implement a variety of strategies to advance and defend core human rights, gender equality and economic security, and to prevent crime. Indeed, a variety of strategies have been developed by the international community in an effort to advance these goals in the context of responding to human trafficking. See, for example:
United Nations Office on Drugs and Crime, Toolkit to Combat Trafficking in Persons (2nd edition)
United Nations Office on Drugs and Crime, First Aid Kit for use by Law Enforcement Responders in addressing Human Trafficking
United Nations Office on Drugs and Crime, Needs Assessment Toolkit on the Criminal Justice Response to Human Trafficking
United Nations Office on Drugs and Crime, International Framework for Action to Implement the Trafficking in Persons Protocol
International Organization for Migration, Handbook on Direct Assistance for Victims of Trafficking
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