A Handbook for Criminal Justice Practitioners on Trafficking in Persons

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5. Sentencing for Human Trafficking Offences

5.1 Introduction

General objectives and principles of sentencing will, of course, guide sentencing outcomes in human trafficking cases.  Under both the Criminal Code and the Immigration and Refugee Protection Act, the maximum sentences for human trafficking offences are at the very high end of the penalties prescribed by Canadian law.  These penalties reflect a normative statement by Parliament about the nature and severity of these types of 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.  This chapter provides a brief overview of the factors that may be relevant in sentencing in human trafficking cases.

5.2 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:

• to denounce unlawful conduct;
• to deter the offender and other persons from committing offences;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and,
• to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. ^{Footnote 65}

5.3 Denunciation

The objective of denunciation mandates that a sentence should communicate society’s condemnation of that particular offender’s conduct. ^{Footnote 66}  A punishment which reflects the objective of denunciation should also be thought of as a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values enshrined within our substantive criminal law.

• See, for example, R. v. Downey ^{Footnote 67} which is a case involving an acquittal for trafficking in persons but convictions for a range of other offences including kidnapping and aggravated sexual assault where the Court notes:

In this case, society would wish to denounce in the strongest terms the extreme and degrading violence undertaken by these offenders.  The kidnapping and torture of a young girl over a period of 24 hours obviously warrants a severe sentence to express the denunciation of this court. ^{Footnote 68}

5.4 Deterrence

General deterrence is meant to deter other potential offenders from committing crime by making clear that appropriate penalties will be imposed for violations while specific deterrence is meant to convey a message to the particular offender such that they will not be inclined to commit the offence again in the future.

• See R. v. Downey ^{Footnote 69} where the Court noted:

General and specific deterrence are fundamental sentencing goals that are generally common to virtually all sentences imposed by our courts.  A sentence must send a strong and clear message to other like-minded individuals who may be inclined to engage in conduct similar to that of the offender.  The offender must also understand that a repetition of his conduct will draw a similar or even harsher penalty.  Again, this objective is achieved by the duration of the sentence imposed.

In cases of human trafficking where victims are brought to Canada to be exploited, specific considerations with respect to deterrence may arise including, for example, ensuring the integrity of Canada’s borders, protecting Canada’s reputation internationally and that criminals are not using the immigration system to their advantage. ^{Footnote 70}

5.5 Separation

Separation ensures that the threat posed by a particular offender, who might not otherwise be rehabilitated or deterred, to society is removed as such individuals will be unable to commit crimes in the community.

Human trafficking involves violence, intimidation and exploitation, and as such, separation from society will often be a necessary component of sentencing:

“Where it is apparent that the offender is a dangerous person, who is likely to compromise public safety if released, he should be detained for a period of time sufficient to reasonably conclude that such danger has subsided.  The duration of the sentence must be sufficient to give the correctional authorities the necessary time to properly treat the offender and for the National Parole Board to assess the risk of his reoffending.” ^{Footnote 71}

5.6 Rehabilitation

The objective of rehabilitation recognizes that a sentence should be responsive to the needs of the particular offender so that they can be rehabilitated and cease to be a threat to public safety.

Given that human trafficking offences are coercive and violent, it is still in the public interest for the offenders to participate in rehabilitative programming, even if the programming is offered to an incarcerated offender:

Achieving the rehabilitation of an offender in custody necessarily involves programs, courses and activities designed to educate, retrain and counsel him/her to choose a productive lifestyle after release, rather than to continue on the destructive path he/she was on when convicted. ^{Footnote 72}

5.7 Reparation and Responsibility

Because of the nature of the harm to the victims, there is often little that can be done by the offender by way of reparation.  That said, the Criminal Code provisions dealing with restitution, section 738, provide a mechanism that can contribute to returning the victim, in some manner, to the place they were before the offence took place.  As noted by the Supreme Court of Canada:

It [restitution] can be an effective means of rehabilitating the accused because this order quickly makes him directly responsible for making restitution to the victim. […] The order also benefits the victim by providing a speedy and inexpensive manner of recovering the debt. […] Society as a whole benefits from the order since its imposition may reduce the term of imprisonment and provides for the reintegration of the convicted person as a useful and responsible member of the community at the earliest possible date.  The practical efficacy and immediacy of the order will help to preserve the confidence of the community in the legal system. ^{Footnote 73}

Through programming, education and community initiatives, the offender may take responsibility for his/her actions.  Such an approach is closely linked with the sentencing objective of rehabilitation as well.

5.8 Other Sentencing Considerations - Offences against Children

Section 718.01 of the Criminal Code makes clear that for any offence involving abuse of a child, a court must, in imposing a sentence, give primary consideration to the sentencing objectives of deterrence and denunciation.  Through enacting such a provision, Parliament has recognized the inherent seriousness of offences of this nature and has directed the courts, through this provision, to recognize this fact through the imposition of sentences that are proportionate to the seriousness of the offence and to the degree of responsibility of the offender.

5.9 Aggravating and Other Factors

Section 718.2 sets out a number of additional sentencing principles including the principle that a sentence should be increased or reduced to reflect aggravating and 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));
• 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 ^{Footnote 74}

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:

5.9.1 Those who prey upon vulnerable victims

The courts are quick to recognize as an aggravating factor those who prey on vulnerable groups including:  those with precarious immigration status, women, children, those with different language or culture; those who are marginalized or isolated; and those who are financially destitute.

• “It is very aggravating that the illegal scheme in which the accused participated preyed on vulnerable people.  They were victims in dire circumstances.  They were faced with the decision to either pay enormous sums of money or see their requests denied by the appeal board, causing them to agonize over their decision to accept or refuse such a life saving offer.” ^{Footnote 75}

5.9.2 The offence involved planning and deliberation or a level of organization

The courts have been quick to recognize planning and deliberation as an aggravating factor for sentencing.  See for example:

• R. v. Tang ^{Footnote 76}, discussing the level of deliberation involved in running a brothel involving 14-year old girls.
• R. v. Tynes ^{Footnote 77} involving persons found guilty of procuring related offences and where the Court found the fact that the operation was well-organized to be an aggravating factor for sentencing.

5.9.3 Previous convictions or involvement with the judicial system

Evidence that an offender has a previous criminal record and/or committed the crime while on parole can also be treated as an aggravating factor for sentencing.

• R. v. Sturge ^{Footnote 78} discussing the offender’s lengthy criminal record and the fact that he was on parole while committing the offence.
• R. v. Harme ^{Footnote 79} for a discussion on the effect of a lengthy criminal record on sentencing.
• See also, however, R. v. Preymak ^{Footnote 80} for a discussion on the impact of a previous criminal record and the lengthy time between a previous conviction and the current offence.

5.9.4 Continuation over a period

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.  Continuation of a crime over a period of time is an aggravating factor for sentencing.

• See Sentencing, 7th edition, Clayton Ruby ^{Footnote 81} where he notes “the fact that criminal activity can be shown to have continued over a lengthy period of time will, in many cases, indicate that there has been a conscious and deliberate choice to engage in criminality. The courts will be less inclined to show leniency in such cases.”
• R. v. Downey ^{Footnote 82}:  “These offences did not occur on the spur of the moment, for example, as a spontaneous reaction to an assault or an insult.  They took some deliberation and planning and they were carried out over a period of 24 hours. They were nothing short of the planned and executed torture of a small, vulnerable young woman involving elements of sadism.”
• R. v. Nakpangi ^{Footnote 83} where the Court noted that the lengthy period of time the offender exercised control over the victims was egregious.

5.9.5 Offence was motivated by financial or material gain

Trafficking in persons cases centre on the exploitation of victims for the financial or material gain of the offenders.  In all cases, this factor will be relevant as aggravating the offence and justifying a higher penalty.

• R. v. Kandola ^{Footnote 84} where the Court treated the fact that the offenders were motivated by greed as an aggravating factor.

5.9.6 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 all trafficking cases and should aggravate the sentence:

• R. v. Pakoo ^{Footnote 85} involving a home invasion type offence where a loaded firearm was discharged and violence was present.  See also:  R. v. Best ^{Footnote 86} for a similar discussion on the role of gratuitous violence as aggravating a sentence.

5.9.7 Whether the offender was in an intimate relationship with the victim

In cases of sex trafficking, so-called “lover-boy scenarios,” where an offender seduces his victim and once an intimate relationship has formed begins to use the emotional bond as a way to manipulate and control his victim:

• R. v Wallace: ^{Footnote 87} “It is an aggravating factor that the complainant was in an intimate relationship with the appellant.  As the Court has noted, there are fiduciary duties owed to intimate partners, and they are entitled to expect protection from their partners, not exploitation...”

5.9.8 Use of drugs or alcohol to maintain control over the victim or as inducements

The use of drugs or alcohol to help maintain control over the victim can be viewed as an aggravating factor.

• See, for example, R. v. Byer ^{Footnote 88} but note also that section 246 of the Criminal Code makes it an offence to administer or cause to be administered a stupefying or overpowering drug, matter or thing with the intent to enable or assist oneself or another person to commit an indictable offence.
• See also R. v. Tang ^{Footnote 89}.

5.9.9 Exposure to serious illness or injury

Victims of human trafficking can face a number of health risks and diseases including exposure to sexually transmitted infections such as HIV/AIDS.  Malnutrition, unsanitary and/or crowded living conditions and a lack of adequate medical care can all foster a lifetime of adverse health conditions.

• R. v Tang ^{Footnote 90} considers the living conditions and availability of health safeguards as relevant considerations as aggravating for sentencing purposes.

5.10 Mitigating Factors

5.10.1 First-time Offender

The fact that an offender has no previous criminal record will often result in the courts focusing on the sentencing objective of rehabilitation.

5.10.2 Remorse or conduct following arrest/early guilty plea/cooperation with the police and prosecutor

Conduct of the offender after the commission of the offence can mitigate a sentence where the court is satisfied that an offender has taken steps to move away from crime. An early guilty plea as an expression of remorse for commission of the crime is viewed as a mitigating factor for sentencing.  It means that the victim does not have to testify in a trial.  The extent that an early guilty plea is viewed as a mitigating factor will, of course, vary with the facts of each case.

• See R. v. St. Vil ^{Footnote 91} where the Court took into account the fact that the accused pleaded guilty early to human trafficking offences as evidence of remorse.
• R. v. St. Vil ^{Footnote 92}, where the Court also took into account the fact that the accused used his time in custody to turn his life around through educational and religious programs.

5.10.3 Offender was previously a victim of human trafficking

In some cases of human trafficking, offenders may themselves have been victims of human trafficking.  For example, a victim of trafficking may be told that if they become involved in the recruitment of persons, with the knowledge that these persons will be exploited, that they can, themselves, be “free” from the exploitation that they have suffered.  While the reasons why a victim subsequently becomes a trafficker can vary, these circumstances and past history of victimization may be relevant as mitigating factors for sentencing.

• See, for example, R. v. Byrd ^{Footnote 93} where a woman pleaded guilty to manslaughter involving the death of her partner and where the Court took into consideration as a significant mitigating factor that the offender had suffered previous instances of domestic violence and that during the death of her partner she was under attack.

5.10.4 Age

The fact that an offender is a young person is generally treated as a mitigating factor.  It should be noted, however, that the courts have recognized that in case involving serious violence, the fact that an offender is young may not be relevant in sentencing. See, for example, R. v. Porsch ^{Footnote 94}.

5.11 Specific Sentencing Considerations in respect of human trafficking cases under the Immigration and Refugee Protection Act

In addition to the principles of sentencing of general application discussed above, a court sentencing an offender for the commission of an offence under the Immigration and Refugee Protection Act (IRPA) should take into account the objectives of the legislation which seek to balance the promotion of immigration with the need to maintain the security of Canadian society.

Aggravating Factors under the IRPA

The IRPA also has its own aggravating factors that must be taken into consideration by a court when sentencing an offender for certain offences, including human trafficking.
Section 121:  The court, in determining the penalty to be imposed under section 120, shall take into account whether:

• bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence;
• the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization;
• the commission of the offence was for profit, whether or not any profit was realized; and
• a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence.

5.12 Preparing for a sentencing hearing

5.12.1 Prepare throughout investigative stage

• Have investigators prepare for the sentencing hearing at the investigative stage. Consider factors that will relate to sentencing such as:  facts which lend themselves to establishing aggravating/mitigating factors and obtain evidence for the proof thereof, including:
  • documents;
  • photographs/video;
  • witness statements;
  • victim impact statements; and,
  • reports from financial, medical and/or psychological experts.

5.12.2 Submissions and Evidence at the Sentence Hearing

The rules regarding submissions and evidence permitted at a sentencing hearing are set out in sections 723-726 of the Criminal Code:

• Submissions:  the prosecutor and defence may make any submissions on facts relevant to sentencing.
• Evidence:  any relevant evidence may be presented by the prosecutor, defence, or as requested by the court.
• Witnesses: the court may compel the appearance of a compellable witness.
• Hearsay: is admissible but a witness may be compelled if he/she has personal knowledge, is available and is compellable.
• Facts:
  • agreed statement of facts, agreed to by prosecutor and defence, may be relied on by the court;
  • facts, express or implied, used by jury to determine guilt may be accepted as proven;
  • any other relevant fact disclosed by evidence at trial accepted as proven; and,
  • may hear further evidence with respect to disputed facts
    • party wishing to rely on fact has burden of proof
    • either party may cross-examine any witness called by other party
    • court must be satisfied on balance of probabilities of existence of disputed facts
    • prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact, or any previous conviction by the offender.
• Other offences:  may be considered if possible and appropriate to do so, and if consented to by both parties.
• Offender:  the court shall ask if the offender has anything to say before imposition of sentence.
• Relevant information:  the court shall consider any relevant information placed before it by prosecutor and defence.

5.13 The Role of the Victim at the Sentence Hearing

5.13.1 Victim impact statements

One of the important aspects of prosecuting a human trafficking case is properly conveying to the court the extent of the harm that is caused to victims of human trafficking.  Victims are often repeatedly traumatized, abused (physically and mentally), exploited and assaulted while under the control and direction of the traffickers.  This aspect of the offence is one that should be the subject of submissions to the court in order to address the relevance of the sentencing objectives of both general and specific deterrence.

One of the ways in which this information may be presented to the court is through a victim impact statement, which allows a victim to describe the harm experienced or loss suffered as a result of the commission of the offence.  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.  The assistance provided by victim services ensures that victims are made aware of appropriate content for victim impact statements and that they receive assistance and support during the process.  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.

5.13.2 Harm to the victim

While a victim impact statement can provide an opportunity for the court to hear firsthand how the crime impacted the victim, not all victims of trafficking will wish to prepare a victim impact statement or may simply be reluctant to deliver it in court.  In such cases, subsection 722(2.1) of the Criminal Code provides discretion to the court to have a victim impact statement presented in any manner the court considers appropriate.

This could include, for example, having a third party read the statement in court or to simply have it filed with the court.

The welfare of the victim should be a primary consideration in any human trafficking case including during sentencing proceedings.  For this reason, it is essential that the victim be provided with support through provincial/territorial victim-services and victim-serving organizations and agencies. ^{Footnote 95} When approaching a sentencing hearing, the health, welfare, and privacy interests of the victim should be safeguarded to the greatest extent possible.  Trafficking victims should be consulted regarding their desire to prepare a victim impact statement.  They should be informed that the judge is required to consider the information in their victim impact statement when determining the appropriate sentence for the offender, that they may read their victim impact statement aloud at the sentencing hearing if they wish, and that that they may be cross-examined on their victim impact statement.

Some victims may be so traumatized by the human trafficking events that they are unwilling or unable to assist the prosecution at the sentence hearing stage.  In addition to obtaining the cooperation of the victim, there are other challenges related to presenting this evidence to the court.  Properly quantifying the harm to the victim can be a difficult task.  The harm may not be visible as is the case with psychological harm.

Victims may suffer from post-traumatic stress disorder in varying degrees and often will require counselling, support and psychological attention. ^{Footnote 96}  Reports from these experts, in some circumstances, may be used in the sentencing hearing to demonstrate the extent of the psychological harm to the victim.

The victim may also have been physically harmed.  The medical reports demonstrating this physical harm should also be provided to the courts and consideration should be given to the immediate harm caused by the physical assault, the enduring or continuing rehabilitation required to restore the victim to health, medical costs, and the additional psychological trauma that the physical harm has caused.

Guidance for the use and procedures related to victim impact statements can be found in section 722 of the Criminal Code:

• The court shall consider a victim impact statement for the purpose of determining the sentence;
• A victim impact statement describes harm done to or loss suffered by the victim due to the commission of the offence;
• Victim impact statements must be prepared in writing in accordance with the procedures established by the province or territory; and,
• A victim may read their victim impact statement aloud if they wish.

In addition, provincial/territorial victim services should be consulted regarding their victim impact statement programs to ensure that victims are aware of assistance that is available for the preparation of victim impact statements.

5.13.3 Victim Surcharge

A victim surcharge is an additional penalty automatically imposed on offenders at the time of sentencing.  The charge is 30 percent of any fine imposed, or, if there is no fine, $100 upon conviction for a summary offence and $200 upon conviction for an indictable offence. The court has the discretion to increase the amount of the surcharge if it is appropriate in the circumstances and if the offender has the ability to pay.  In the circumstances where human traffickers may have benefited substantially through the commission of the offence, this increase may be deemed appropriate.  The victim surcharge is used by the province or territory where the crime occurred to help fund programs, services and assistance for victims. Offenders who are unable to pay the victim surcharge may discharge the amount owing through participation in provincial fine option programs where they are offered.

5.14 Restitution Orders

Restitution is a payment which an offender is required to make to a victim to cover an easily quantifiable loss that a victim has sustained as a result of the commission of an offence.  Restitution is a payment from the offender to the victim to reimburse expenses and must be distinguished from compensation which is a payment from the state to the victim to recognize the harm which they have suffered as a result of their victimization.

Restitution orders may be “stand alone” orders or ordered as a condition of probation or conditional sentence. Paragraph 738(1)(a) of the Criminal Code authorizes the imposition of a “stand alone” restitution order in three circumstances, however, only the first two are likely to apply in the sentencing of trafficking offences:

• To cover the cost of damage, the loss of or destruction of the property of any person as a result of the commission of an offence; and,
• To cover all readily ascertainable pecuniary damages, including loss of income or support, to any person who has suffered bodily or psychological harm as the result of the commission of an offence.

Restitution orders take priority over forfeiture orders if the offender has demonstrated an inability to pay (section 740 of the Criminal Code).

Restitution may also be ordered as a condition of a probation order (subsection 732.1(3.1)) or as a condition of a conditional sentence (paragraph 742.3(2)(f)).

Restitution is a discretionary sentence which can only be ordered when a loss or damage is easily quantifiable and is not in great dispute.  Criminal courts are not an appropriate forum for awarding damages for pain and suffering or for determining complicated issues regarding the amount of the award.  Additionally, while the offender’s ability to pay is not determinative, it must be taken into consideration by the sentencing court when determining if restitution is an appropriate sentence.

Although trafficking offenders have often profited greatly from the exploitation of those whom they have trafficked, restitution will often not be an appropriate sentence in trafficking cases due to the nature of the losses and harm sustained by trafficking victims.  Victims who have suffered physical harm, loss of liberty and who have been forced to work without compensation have most certainly endured financial losses, however, these are not the types of financial losses contemplated under the restitution provisions in the Criminal Code.

There will, however, be cases where an application for restitution should be considered, such as when a person who has been trafficked is unable to perform paid work due to the lasting physical or psychological effects of the exploitation they endured.  For example, if a person had to take a medical leave from a job due to injuries they had sustained as a result of being made to perform physical labour in dangerous working conditions or for excessive periods of time without adequate rest breaks, an application could be made for restitution to cover lost income.

5.14.1 Enforcement of Restitution Orders

If the offender fails to pay restitution as ordered, section 741 allows a victim to whom restitution is owed to file the restitution order in civil court in order to have it enforced as a civil judgment.  Saskatchewan and Nova Scotia have a restitution enforcement program which assists victims in collecting unpaid restitution orders.  Some other provincial/territorial victims’ service programs in Canada provide various kinds of assistance to victims in enforcing restitution orders whether through a simplified process for filing the restitution order with the civil court and waiver of fees or assistance in preparing the necessary documents.

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