A Handbook for Criminal Justice Practitioners on Trafficking in Persons
4. Guidelines for Prosecutors
The purpose of this chapter is to provide practical guidance to prosecutors involved in the prosecution of trafficking in persons cases. Crown practices and procedures will vary from one jurisdiction to another. This chapter should be considered in conjunction with existing practices and procedures.
4.2 Victim Interview
In addition to the formal interview, involve the victim throughout the process. For example, regularly consult and provide the victim with timely information, particularly with respect to the release of the accused on bail and to the results of the trial and sentencing. Engage victim services early in the process to assist you in liaising with the victim. The role of victim services is more fully canvassed in Chapter 6.
Conduct an informational meeting with the victim as soon as is practicable and ensure that victim services are involved in the case.
At the stage where you are set to interview the victim, it will be important to help prepare them to testify in court. Many victims of trafficking in persons offences will not have any knowledge of the Canadian criminal justice system. Avoid making assumptions, and take the time to introduce yourself and explain the role of the Crown, the purpose of the interview, and what will happen next before asking about the circumstances of the offence.
Throughout the interview, remain sensitive to the victim's personal situation and state of mind, including the psychological and emotional distress he or she is likely experiencing. Bear in mind that no two victims are alike, and may react in different ways to Crown counsel and law enforcement; some may be cooperative, though in many instances, they will not trust the justice system and may decline to meaningfully participate.
Notwithstanding this type of initial reaction, the victim will not necessarily remain adverse or hostile throughout the interview or the proceedings, as such a response may be a tactic that he or she has adopted to survive their ordeal, and is not directed specifically at the justice system.
To maximize the effectiveness of the interview, it is thus important to avoid challenging or directly questioning the victim’s story too early in the process. Confronting the victim about discrepancies or weaknesses in his or her evidence too early in an interview may provoke recollections of the defensive position that he or she held during the trafficking, greatly reducing the potential for cooperation. While difficult questions may need to be asked to obtain an accurate and complete account of relevant events, all efforts should be made to build a rapport with the victim before delving into such controversial matters.
Pay close attention to the victim’s body language and any comments about the accused in particular, as the victim may continue to legitimately fear for his or her safety as well as those of others known to them, even if the accused is in custody. Remain vigilant to spotting these issues and inform the victim of the protections that are available to him or her, though particular care should be taken to avoid making promises that cannot be kept (i.e., guaranteeing that the victim will be able to testify via close-circuit video or behind a shroud, when such a procedure requires an application that has not yet been determined by a court).
The victim may likewise require the assistance of a support person and/or an interpreter. Like other vulnerable victims, such as survivors of domestic abuse or sexual assaults, Crown counsel should also be prepared to arrange for frequent breaks, or even terminate an interview if necessary, and seek immediate assistance for the individual. If the victim has not yet been referred to victim services, help the person contact victim services for support and assistance as soon as practicable.
As with any witness interview, Crown counsel should always ensure that another person is present, such as the officer assigned to the matter. The presence of a familiar officer, particularly if a positive relationship has already been established, may help the victim feel more at ease and increase his or her willingness to participate.
Lastly, an observer can help ensure that an accurate record of the interview is kept, in order to fulfill the Crown’s disclosure obligations.
For more information on interviewing victims of human trafficking, please see:
- Chapters 8 and 9 of the United Nations Office on Drugs and Crime Anti-Human Trafficking Manual for Criminal Justice Practitioners. Footnote 48
- Human Trafficking: Canada is Not Immune, an online training course for Canadian front line service providers on how to recognize, protect and assist a person who may have been trafficked. Footnote 49
4.3 Charge Approval/Charge Review
In Canada, the responsibility to lay charges rests with the police in every province except for British Columbia and Quebec, where the responsibility to lay charges rests with the Crown. In New Brunswick, the police lay charges after receiving advice from the Crown.
Despite the differences in charging practices, all decisions to prosecute in Canada are guided by a two-stage test: Footnote 50 (1) whether there is a reasonable prospect of a conviction in proceedings to be instituted and or continued; and, (2) if so, does the public interest require a prosecution to be pursued.
Incidents of human trafficking often occur alongside other criminal offences. Accordingly, consideration should also be given to the laying of additional charges, when evidence supports it. For example, consideration should be given to the following other offences:
- Uttering threats (section 264.1);
- Assault (section 265);
- Assault with a weapon/causing bodily harm (section 267);
- Aggravated assault (section 268);
- Sexual Assault (section 271);
- Sexual assault with a weapon (section 272);
- Aggravated sexual assault (section 273);
- Kidnapping (subsection 279(1));
- Forcible confinement (subsection 279(2));
- Prostitution-related offences (sections 286.1-286.4);
- Extortion (section 346);
- Intimidation (section 423); and,
- Criminal organization offences (sections 467.11-467.13).
4.4 Obtaining Foreign Evidence/Assistance
Mutual legal assistance may be critically important to the successful prosecution of a human trafficking case. Canada is party to 35 bilateral mutual legal assistance treaties and many multilateral conventions that contain provisions for mutual legal assistance, including the UN Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.
Canada may also require extradition of an accused in a human trafficking case. Currently, Canada is party to 51 bilateral extradition treaties and several multilateral conventions containing provisions on extradition, including the UN Convention against Transnational Organized Crime and its Protocol on Trafficking in Persons. For more information on mutual legal assistance and extradition, please see chapter 3.
4.5 Pre-trial Detention/Release
4.5.1 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. While the factors relevant to the three grounds of detention are well known, the following considerations are particularly germane to trafficking in persons cases.
With respect to the primary grounds, pay special attention to the mobility of the accused. Often they will have methods of moving from one country to another or across the country without being observed, which may mean they can leave the jurisdiction easily. Ensure passports are surrendered.
With respect to the secondary grounds, given the violence and threats inherent with the offence of trafficking in persons, victim/witness protection and safety is a prime consideration. Human trafficking is a business and traffickers have great motivation (money) to continue the offence. Moreover, the victim’s perception of their safety is critical to maintaining the cooperation of the victim in the prosecution.
With respect to the tertiary ground, the gravity of the offence and the potential for the accused to receive a lengthy term of imprisonment are key factors for consideration (sub-paragraphs 515(10)(c)(ii) and (iv)). In this regard, it is significant that every trafficking in persons offence, by definition, has exploitation at its core. Further, with respect to the potential for a lengthy sentence, the maximum penalty for trafficking in persons in its aggravated form is life imprisonment and in its non-aggravated form is 14 years (paragraphs 279.02(1)(a) and (b)). Moreover, where the victim is under 18, there is a mandatory minimum penalty of five or six years imprisonment, depending on the circumstances of the offence (subsection 279.011(1)). In a bail review decision in R. v. Domotor et al., the first labour trafficking prosecution in Canada, which involved a criminal organization, the Ontario Superior Court allowed the Crown’s application and detained Ferenc Domotor on the secondary and tertiary grounds. Cavarzan J. concluded that “[h]uman trafficking is a very grave offence indeed” and that the accused was liable to a potentially lengthy term of imprisonment. He also concluded that the tertiary ground for detention was not limited to murder, serious firearm and drug trafficking offences. Footnote 51
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. In particular, if the accused is charged with a criminal organization offence under ss. 467.11, 467.12, or 467.13, or a serious offence (i.e., an offence punishable by five years or more or as prescribed by regulation) Footnote 52 alleged to have been committed for the benefit of, at the direction of, or in association with a criminal organization, the onus is on the accused to show cause why his/her detention is not justified (sub-paragraph 515(6)(a)(ii)). Given that trafficking in persons offences are usually financially motivated, if the offence appears to have been committed by or in conjunction with three or more persons, prosecutors should consider the definition of “criminal organization” in section 467.1 of the Criminal Code, and the potential application of sub-paragraph 515(6)(a)(ii).
4.5.3 Preparation for the Bail Hearing
Good preparation for the bail hearing can help secure the detention of the accused in appropriate cases. Therefore it may be helpful for the prosecutor to seek an adjournment of up to three days 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, such as of proposed sureties, becomes apparent. In such cases, the prosecutor will need to articulate the reasons for supporting the application.
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).
Below are some relevant considerations or steps:
- Consider having the officer attend and testify at the bail hearing. This can be helpful in more complicated cases. The officer will likely have additional relevant information, including about the victim, than may be in the brief.
- Be aware of the possibility that one or more of the accused may actually also be a victim. Some traffickers create a hierarchy for their trafficking/criminal activities, and use some of the victims they have previously recruited to help recruit and control new victims. If the accused is also a victim/former victim, it may be that they will be more likely to be released on the basis that they are a “lesser” player. There is a concern that if they are released, they may continue to commit offences at the direction of their “recruiter”, even if the recruiter is charged and detained. The proposed surety can be asked in cross-examination how they would keep the accused from communicating with the recruiter.
- Have the proposed sureties investigated. As a general matter, the cross-examination of proposed sureties can serve as an important opportunity to demonstrate the weaknesses in the defence case for bail as well as in the defence case at trial. Some of the proposed sureties may be witnesses at the trial. The bail hearing is an opportunity to get witnesses’ stories on the court record.
- Is the proposed surety involved in the accused’s alleged trafficking activity or related criminal activity? In addition to the usual lines of inquiry regarding the suitability of a proposed surety, the prosecutor should be aware of the possibility that the proposed surety is involved in the accused’s criminality and should request police to investigate this, recognizing that to do this effectively can take time and police resources.
- Does the proposed surety have a conflict of interest? Even if they are not directly involved with the accused’s criminal activity, certain proposed sureties (such as family members) may be indirectly living off the avails of that activity and may in effect have a conflict of interest. The prosecutor should explore the proposed surety’s income and employment situation in cross-examination in order to get at any conflict that would disincline the surety to genuinely seek to keep the accused out of lucrative criminal activity or to turn the accused in, in the event of a bail violation. The prosecutor can ask the surety to provide documentation, such as an income tax return, to substantiate their evidence.
- Did the proposed surety testify at a previous bail hearing? In organized-crime cases or where the accused has other charges, the same surety may have been put forward in other proceedings. A transcript of the surety’s evidence at the previous bail hearing could be useful during cross-examination at this bail hearing. But the prosecutor may not know that the surety has previously been proffered as a surety, particularly if the other proceeding took place in another jurisdiction. The prosecutor can ask the surety during cross-examination. Even if it is not possible to obtain the transcript of the previous bail hearing, if there is going to be a bail review, it could be obtained for that proceeding.
- If the accused had outstanding charges at the time of the offence, take steps to have the earlier release revoked pursuant to section 524. In this situation, the onus will be on the accused to show cause why detention is not justified in relation to the old charges, as well as the new charges if the old charges were in relation to an indictable offence (subparagraph 515(6)(a)(i)).
- 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. In addition to checking with INTERPOL, police should ideally make direct inquiries with local police in the home country to ensure that the information is up to date.
- Contact the Canadian Border Services Agency (CBSA) if the accused is not a Canadian citizen. Clearly, if the accused has foreign citizenship, that is relevant to the primary grounds of detention. Also, the accused’s statements and declarations to the CBSA may be useful during cross-examination at the bail hearing.
- Consider preparing a package of material to file with the court. Where the accused does not have a criminal record and detention may turn on the tertiary grounds, it can be very helpful to file with the court a package of material that helps demonstrate “the apparent strength of the prosecution’s case,” which is one of the specified considerations regarding the tertiary ground (subparagraph 515(10)(c)(i)). The package could include items such as:
- the victim’s statements or summaries thereof;
- the accused’s statements or summaries thereof;
- the background of the accused;
- the background of the victim; and,
- corroborative material such as debt lists and ledgers, immigration documents, cell-phone records to show the accused’s movements, surveillance videos or photos, before and after photos of the victim, and past occurrence reports.
- Where bail supervision programs are available, seek conditions regarding reporting and residency. Bail supervisors can play an instrumental role in monitoring an accused and forward breaches to the Crown.
4.5.4 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.
4.5.5 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 presumably include virtually every charge of 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, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things “unless the justice considers that such a condition is not required in the interests of safety of the accused or the safety and security of a victim of the offence or any other person.” Where such a condition is included, the justice must specify the manner and method by which those items will be surrendered, disposed of, detained, stored or dealt with, and by which any authorizations, licences and registration certificates will be surrendered (see section (4.11)).
Non-communication condition: Paragraph 515(4.2)(a) requires the justice to consider whether it is desirable, 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 not communicate, directly or indirectly, with any such person identified in the order. The prosecutor should urge such a condition in respect of the victim, family of the victim, witnesses, and associates of the accused.
Remain away condition: Paragraph 515(4.2)(a) also requires the justice to considerwhether it is desirable, 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. If the address of the person to be protected is already known to the accused, it should be the subject of such a condition. If the address is not known, care must be taken in setting conditions not to reveal information that could enable the accused to locate the person. In a sexual-exploitation trafficking case, the following types of remain away conditions may be appropriate:
- Not to attend an establishment where adult services or entertainment is provided, such as strip clubs or X-rated video shops with entertainment in the back:and,
- Not to attend any hotel or motel unless in the presence of a surety.
The type of optional conditions to seek will depend very much on the type of trafficking case at hand. As a general matter, the prosecutor must balance the objective of keeping appropriately tight control of the accused with the fact that overly strict conditions may require building exceptions into them, which in turn can be difficult to enforce.
In most cases, the prosecutor should consider asking for conditions that the accused:
- Remain within a particular territorial jurisdiction;
- If the accused lives outside of the region where the offence occurred and/or the victim is living, that he/she remain away from that region except for necessary court attendances and meetings with counsel; Footnote 53
- Reside with the surety at a named address;
- If there is no “reside with” condition, consideration should be given at least to a “reside at” condition; this would require the accused to seek the permission of the court should he/she wish to move and would enable the police to check that the proposed address is not near that of the victim or places the victim frequents;
- Be under house arrest and/or keep a curfew; if any exceptions are built in to this, consideration should be given to making them dependent on the accused obtaining written permission from a designated person before exercising the exception;
- Not possess any telecommunications devices and not access the Internet; it is through these means that victims and witnesses are often contacted and threatened; and,
- If relevant to the facts of the case, a condition that the accused abstain from the consumption of alcohol and not possess any intoxicating substances or drugs except in accordance with a medical prescription.
4.5.6 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.
4.6 Post-Bail Hearing Considerations
Post-bail hearing meeting and investigation of evidence: Soon after the bail hearing, it can be fruitful for the prosecutor and the police to meet to discuss the evidence at the bail hearing. Any evidence that sounded suspicious can be flagged for investigation as can matters raised in defence cross-examination of the investigating officer, if he/she testified at the bail hearing. Transcripts of defence evidence can be ordered to assist in follow-up and for potential use at trial.
Possible bail review: Where an accused has been released over the opposition of the prosecutor, the prosecutor may want to consider bringing a bail review application pursuant to section 521 of the Criminal Code. Where post-bail hearing investigation contradicts evidence given on the bail hearing, this can obviously strengthen a Crown bail review application.
Pro-active investigation of interference with witnesses or continuing offending: Whether the accused has been detained or released, it is realistic to assume that the accused in a trafficking in persons case may, either directly or indirectly, attempt to threaten or intimidate the complainant or other witnesses, or persons close to the complainant and witnesses, including in their home country if they are from elsewhere, Footnote 54 even if a non-communication order is in place. Similarly, the accused may continue to run the trafficking business, even if he or she was detained. Police should be proactive in determining whether there has been such conduct. If the accused was released after the bail hearing, any such conduct would warrant having the accused arrested pursuant to paragraph 524(1)(a), charging the accused with additional offences, and/or bringing an application pursuant to subsection 524(8) to have all previous releases cancelled.
4.7 Preliminary Hearings
Consideration should be given to using subsection 540(7) of the Criminal Code to avoid having the victim testify at the preliminary hearing. Subsection 540(7) states as follows:
(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.
This section may be used so that the statement of the victim, generally an audio-video recorded statement, can be entered as evidence without the necessity of calling the victim at the preliminary inquiry.
R. v. Vaughn Footnote 55 is a 2009 decision from the British Columbia Provincial Court that summarizes a number of decisions in this area and is therefore a good starting point for research on subsection 540(7). Obviously, each case will need to be evaluated on its own facts with reference to the jurisprudence dealing with subsection 540(7) before any decision is made to bring such an application. The primary benefit of a successful application is that the victim will not be required to testify at the preliminary inquiry therefore limiting the number of times that he or she will have to testify.
The foregoing, with respect to the victim testifying, is tempered by subsection 540(9) of the Criminal Code which states as follows:
(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection(7).
Vaughn Footnote 56 also summarizes the principles and jurisprudence that apply when a court is faced with an application pursuant to subsection 540(9). An application under subsection 540(7) may be futile if the conclusion is drawn that an application under subsection 540(9) will be successful thereby requiring the victim to attend the preliminary inquiry and be cross-examined.
Other methods of testimony
In situations where the victim is under the age of 18, prosecutors should consider using section 715.1 to tender the victim’s videotaped statement as evidence at the preliminary inquiry and trial.
s.715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
4.8 Direct Indictments
Pursuant to section 577 of the Criminal Code, the Attorney General or the Deputy Attorney General are permitted to send a case directly to trial without a preliminary inquiry, when the preliminary inquiry has commenced but not concluded, or after an accused has been discharged at a preliminary inquiry. It is important to note that the accused does not have a constitutional right to a preliminary inquiry Footnote 57.
In trafficking in persons cases, prosecutors should consider obtaining a direct indictment when the benefits of the removal of a preliminary inquiry from the process to the case, such as avoiding pre-trial delay, preserving evidence, protecting vulnerable witnesses, and other public-interest factors are present.
4.9 Responding to Common Defence Strategies
The most significant defence challenge to the Crown case in TIP cases is often attacks on the credibility and reliability of the prosecution’s witnesses, and especially the complainant. To raise reasonable doubt, the defence may attack inconsistencies in prior statements, and call into question the complainant’s credibility (e.g., by suggesting a motive to fabricate, such as avoiding deportation).
Prior Inconsistent Statements
There may be discrepancies between a complainant’s current testimony and prior testimony or written statements. Inconsistent statements may be provided prior to the trial and, unfortunately, in some cases the complainant may provide evidence at trial which is inconsistent with previous accounts. Inconsistencies may be inadvertent, as the material facts may have occurred a considerable time in the past. Complainants may also deliberately choose to withhold information or lie if they still fear for their safety or for that of others. Another reason may relate to the level of trauma suffered by the complainant, which may affect their ability to clearly recall the facts of the case. In some instances, the trauma may even cause the complainant to experience a variant of “Stockholm syndrome” and display a positive affinity for the accused, and consequently act as an adverse or hostile witness to the Crown. In other cases, the victim may also have willingly or unwillingly participated in other trafficking activities themselves, and will thus withhold information or lie in order to minimize their own involvement.
For more information on the effects of trauma on a victim, please refer to Chapter 3.
All of these above scenarios may generate prior inconsistent statements. To overcome the associated challenges and ensure that the trier of fact has a fair view of the complainant’s evidence, the following practices may be of assistance:
- Corroborate the complainant’s evidence through the use of additional evidence, including testimony of other witnesses, along with flight information, immigration documents, or surveillance footage, provided it is relevant to an issue at trial;
- Identify the various accounts provided by the witness, as well as the sequence in which they were given, as the timeline and who the statements were provided to may help explain inconsistencies;
- Determine whether certain inconsistencies are actually material to the complainant’s overall account, or are just innocent variations that can be explained by the passage of time or stressful circumstances the complainant was facing when he or she experienced the offence;
- When interviewing the complainant, as well as during examination-in-chief, ensure that he or she has an opportunity to confront and address inconsistencies. Addressing deficiencies and conceding weaknesses in the case head-on is more persuasive than allowing the defence to control the narrative by raising the issues for the first time on cross-examination;
- For complainants who recant or are uncooperative, be aware of the evidentiary means by which prior, and possibly more truthful evidence, can be put before the trier of fact (e.g., applying to cross-examine the complainant under subsections 9(1) or 9(2) of the Canada Evidence Act, or admitting eligible prior statements under the principled exception to the hearsay rule pursuant to the Supreme Court of Canada decisions in B.(K.G.) Footnote 58 and Khelawon Footnote 59; and
- Consider calling expert-witness evidence regarding the psychological reactions and behaviours of victims of severe trauma in the context of trafficking and/or sexual exploitation, as applicable, to explain inconsistencies.
General attacks on credibility
Defence counsel may also attack the general credibility of the complainant and/or their motives to lie by raising matters such as his or her immigration status, criminality, and benefits received during the time frame of the allegations, or prior relationships with the accused or other witnesses in the case. Strategies for countering these tactics may be similar to those described immediately above. In addition, consider the following possible responses:
- Challenge the relevance of the issue raised by the defence;
- Consider applying to admit evidence under the “narrative” and/or similar fact evidence exceptions regarding the character of the accused, in order to demonstrate any pattern of abusive behaviour towards the complainant or similar individuals. The purpose for introducing these types of evidence is generally to ensure that the trier of fact has a complete picture of the events at issue, or to rebut an unfair characterization of the complainant’s behaviour or reactions to certain events;
- Consider introducing expert evidence regarding human trafficking techniques, such as the use of gifts or money as a means of controlling or manipulating victims, in order to show that these “benefits” are often a means of continuing the offence;
- If possible, attempt to illustrate the difference between the value of the “benefits” received by the complainant to the actual market value of the labour or services he or she provided, to demonstrate exploitation and refute suggestions that the complainant was properly compensated;
- If supported by the facts, lead evidence to show that the complainant’s residency status was obtained independently of any cooperation with the investigation. If there was a link between the complainant’s cooperation and residency status, be transparent in showing the details of any such arrangement, and normalize it by leading evidence to demonstrate that such acts are an international best practice and should not reflect badly on the integrity of the victim’s testimony; and
- If the complainant has a criminal record, address the situation candidly in examination-in-chief, and pre-emptively rehabilitate his or her credibility by pointing to any relevant circumstances surrounding prior convictions or dispositions (e.g., record is dated, is not related to crimes of deceit/falsehood, complainant was suffering from addictions or mental health issues at the time of any offence, etc.).
4.10 Testimonial Aids and Other Measures
The Criminal Code includes provisions which allow judges to order testimonial aids and other measures which make it easier for vulnerable victims and witnesses, such as trafficking victims, to provide testimony during criminal proceedings. These provisions recognize that some victims and witnesses, such as trafficking victims, may be more vulnerable because of their age or other factors, such as the nature of the crime. One of the objectives associated with these provisions is to help reduce the trauma which may result from testifying and to help ensure that, in the case of victims, they are not re-victimized by their participation in the criminal justice system.
Testifying in criminal proceedings can be a difficult and frightening experience for any witness, but may be particularly difficult for a person who has been exploited through trafficking. Because trafficking is inextricably linked to coercive practices such as violence (physical, sexual or emotional) and threats of violence to the victim or to someone known to the victim, trafficking victims may require the use of testimonial aids in order to provide their testimony. Witnesses may also require the use of such aids
Testimonial aids and other measures which assist victims and witnesses measures include:
- Allowing a witness to provide testimony outside of the courtroom by closed-circuit television or behind a screen so that the witness may avoid seeing the accused (s.486.2) Footnote 60;
- Allowing a support person to be present during the witness’s testimony to make the victim or witness more comfortable (s.486.1); and,
- Appointing a lawyer to conduct the cross-examination of a victim when the accused is self-represented (s.486.3).
These measures are available upon application for all witnesses under the age of 18 years or any witness with a disability that makes it difficult for them to communicate unless the judge believes they would interfere with the administration of justice.
Other vulnerable adult witnesses may receive such measures, upon application, if the judge feels it is necessary for the witness to give a full and candid account of the acts complained of. The judge will consider factors such as the witness’s age, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused and any other circumstance that the court considers relevant.
In addition to the testimonial aids and other measures mentioned above, the judge may, pursuant to section 486 of the Criminal Code, issue an exclusion order requiring some or all members of the public to leave the courtroom during some or all of the criminal proceedings. A judge may make such an order if they are of the opinion that it is:
- In the interest of public morals;
- In the interest of the maintenance of order;
- In the interest of the proper administration of justice; or,
- Necessary to prevent injury to international relations or national defence or national security. Footnote 61
Making an order on the basis that it is necessary for the “proper administration of justice” includes, pursuant to subsection 486(2), ensuring that “the interests of witnesses under the age of 18 are safeguarded” (paragraph 486(2)(a)) and “justice system participants are protected” (paragraph 486(2)(b)).
The courts have recognized the importance of making an exclusion order in appropriate cases. The courts however, will only make such an order where it is necessary (on the basis of the above considerations) and where reasonable alternatives have not been identified that could nonetheless accomplish the same results (Canadian Broadcast Corporation v. New Brunswick (Attorney General) Footnote 62).
It should also be noted that where a judge refuses to grant an exclusion order in cases where an accused has been charged with one of the four specific human trafficking offences, they must give reasons for refusing to do so (subsection 486(3)).
4.11 Publication Bans
The Criminal Code provides for both mandatory and discretionary publication bans which prevent the publication, broadcast or transmission in any way of any information that could identify the victim or witness.
Section 486.4 of the Criminal Code provides that a judge, upon application, must order a publication ban to withhold the publication of the identity of, or any information that could identify, any witness under the age of 18 years or a complainant, in respect of a number of enumerated offences, including the four specific human trafficking offences contained in the Criminal Code. In proceedings in respect of such cases, the judge must inform the complainant, witness or Crown Attorney, at the first reasonable opportunity that they may apply for a publication ban.
Section 486.5 of the Criminal Code provides a judge with the discretion to order a publication ban to withhold the publication of the identity of, or any information that could identify, any witness or victim in all other criminal proceedings if the judge believes it is “necessary for the proper administration of justice.”
In deciding whether or not to order a publication ban, the judge is directed by subsection 486.5(7) to consider the following factors:
- the right to a fair and public hearing (paragraph 486.5(7)(a));
- whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed (paragraph 486.5(7)(b));
- whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation (paragraph 486.5(7)(c));
- society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process (paragraph 486.5(7)(d));
- whether effective alternatives are available to protect the identity of the victim (paragraph 486.5(7)(e));
- the salutary and deleterious effects of the proposed order (paragraph 486.5(7)(f));
- the impact of the proposed order on the freedom of expression of those affected by it ((paragraph 486.5(7)(g)); and,
- any other factors the judge considers relevant (paragraph 486.5(7)(h)).
For more information on understanding trauma and human trafficking, please see chapter 3 or visit Human Trafficking: Canada is Not Immune, an online training course for Canadian frontline service providers on how to recognize, protect and assist a person who may have been trafficked. This training is available in French and English and can be accessed at: http://www.pssg.gov.bc.ca/octip/training.htm
4.12 Proceeds of Crime/Offence Related Property
Globally, it is estimated that human trafficking is amongst the most lucrative of criminal activities, rivalled only by drug and firearms trafficking and generating billions of dollars annually for sophisticated criminal organizations. Estimates by the International Labour Organization put the profits for human trafficking at approximately $32 billion. Footnote 63
Whenever possible, parallel proceeds-of-crime investigations should be conducted alongside human-trafficking investigations and initiated at an early stage.
The Criminal Code includes a comprehensive criminal-forfeiture scheme dealing both with proceeds of crime, including through the use of a reverse onus of proof provision, and forfeiture of offence-related property (i.e., goods used to commit crime).
Part XII.2 of the Criminal Code provides for forfeiture of “proceeds of crime” as part of the sentencing of the offender upon application by the Crown after conviction for a designated offence, including human trafficking offences.
4.12.1 What are Proceeds of Crime?
Section 462.3 of the Criminal Code defines “Proceeds of crime” to mean:
any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of the commission in Canada of a designated offence, or an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
In the case of persons convicted of a criminal organization offence (which can include a human trafficking offence committed for the benefit of, at the direction of or in association with a criminal organization), the Criminal Code provides for the forfeiture of proceeds of crime unless the offender can show that it is not derived from criminal activity. In other words, the onus is on the convicted party, rather than the Crown, to demonstrate why the forfeiture of property should not be ordered.
Extensive provisions of Part XII.2 also allow for the seizure and restraint of property pending resolution of criminal proceedings.
As part of special procedures and powers in Part XV, the Criminal Code also provides for the forfeiture of property used to commit offences and other offence-related property. Offence-related property is defined in section 2 of the Criminal Code to include any property, within or outside Canada, by means or in respect of which an indictable offence under the Criminal Code is committed, that is used, or intended to be used, in any manner in connection with the commission of such an offence.
It should also be remembered that numerous jurisdictions across Canada have enacted civil forfeiture legislation. This legislation sets out the framework by which the state can seek the forfeiture of proceeds of unlawful activity. Proceeds of unlawful activity can be defined broadly to include property acquired, directly or indirectly, in whole or in part, as a result of unlawful activity. Civil-asset forfeiture is characterized principally by the fact that the forfeiture can occur in the absence of a criminal conviction. Footnote 64
4.12.2 Forfeiture under the IRPA
In addition to the penalty provided for in section 120, an order for the forfeiture of offence-related property may also be made under subsection 137 (1) of the IRPA.
s. 137 (1) A court that convicts a person of an offence under this Act may, in addition to any other punishment imposed, order that any offence-related property seized in relation to the offence be forfeited to Her Majesty in right of Canada.
(2) The regulations may define the expression “offence-related property” for the purposes of this section, may provide for any matter relating to the application of this section, and may include provisions respecting the return to their lawful owner, disposition, or disposition of the proceeds of disposition, of offence-related property that has been seized.
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