Research publications

Contents

• 1 Background
  • 1.1 Social Context of Human Trafficking in Canada
  • 1.2 Legal Context of Human Trafficking in Canada
    • 1.2.1 Wording of Section 279.04 of the Criminal Code
    • 1.2.2 Interpretation of the Concept of Exploitation
      • 1.2.2.1 Reasonable Apprehension of Fear
      • 1.2.2.2 Analysis of the Circumstances
      • 1.2.2.3 Legal Statistics
• 2 Description and Analysis
  • 2.1 Coming into Force
• Notes

1 Background

Bill S-224, An Act to amend the Criminal Code (trafficking in persons), was introduced in the Senate by the Honourable Senator Salma Ataullahjan on 24 November 2021.1 The bill was considered by the Senate Standing Committee on Human Rights (RIDR), which reported it without amendment on 14 June 2022.2 It passed third reading in the Senate on 6 October 2022. On 18 October 2022, Member of Parliament Colin Carrie introduced the bill in the House of Commons. After the bill was adopted at second reading on 22 March 2023, it was referred to the House of Commons Standing Committee on Justice and Human Rights.

Bill S-224 amends section 279.04 of the Criminal Code (the Code) in three ways:

• It modifies the definition of exploitation in section 279.04(1) of the Code for the purpose of human trafficking to include some of the language used in paragraph 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Palermo Protocol).3
• It deletes the criterion that the victim must have a reasonable apprehension of fear from the current definition.
• It repeals the interpretive provision, section 279.04(2).

In 2021, an identical bill was introduced in the Senate but died on the Order Paper.4 That same year, a bill proposing a similar amendment and an amendment to the Judges Act was introduced in the House of Commons, but it too died on the Order Paper.5

1.1 Social Context of Human Trafficking in Canada

According to Public Safety Canada, Canada is “a source, destination and transit country for victims of human trafficking.” 6 Statistics Canada, meanwhile, reports that vulnerable individuals are disproportionately affected by human trafficking. Between 2010 and 2020, 96% of detected victims of police-reported human trafficking cases were women or girls. The risk is particularly high for Indigenous women and girls and LGBTQ2+ persons.7

1.2 Legal Context of Human Trafficking in Canada

On the international front, Canada ratified the Palermo Protocol in 2002.8 Under paragraph 3(a) of that protocol, human trafficking has three elements: an action, the use of coercive means such as coercion, abduction, deception or abuse of a position of vulnerability while committing that action, and a specific goal of exploiting a person. It reads as follows:

“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.9

While paragraph 3(a) does not explicitly define exploitation, the final sentence provides an illustrative, non-exhaustive list of forms it can take.

In Canada, human trafficking is prohibited by the Code10 and by the Immigration and Refugee Protection Act.11 The Code sets out specific offences in this regard, and section 279.04 defines the concept of exploitation.12

1.2.1 Wording of Section 279.04 of the Criminal Code

Section 279.04(1) of the Code defines exploitation as follows:

a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.13

Section 279.04(2) provides a non-exhaustive list of factors, such as a threat, deception or abuse of power, that the court may consider in determining whether exploitation has occurred.

Section 279.04(3), which the bill does not affect, specifies that the definition of exploitation includes human trafficking for the purpose of human organ or tissue removal.

1.2.2 Interpretation of the Concept of Exploitation

Under the current definition, in addition to proving beyond a reasonable doubt that an act was committed and that the accused caused the victim to provide or offer to provide labour or a service, the prosecution must prove a reasonable apprehension of fear.14

1.2.2.1 Reasonable Apprehension of Fear

The criterion that the victim has a reasonable apprehension of fear is found in the second part of section 279.04(1) of the Code. It is an objective criterion that requires the prosecution to prove that a reasonable person, in the specific circumstances, would be caused to believe that their physical or psychological safety or the safety of a person known to them would be threatened if they failed to provide the labour or service demanded. In R. v. A.A., the Court of Appeal for Ontario made three observations on this point:

1. the expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element;
2. the determination of the expectation is to be made on the basis of all the circumstances; and
3. the person’s safety need not actually be threatened.15

1.2.2.2 Analysis of the Circumstances

In R. v. Sinclair, the Court of Appeal for Ontario provided a non-exhaustive list of circumstances that might be relevant in assessing the question of a reasonable apprehension of fear. These circumstances include the presence or absence of violence or threats; coercion, including physical, emotional or psychological coercion; deception; abuse of trust; and vulnerability due to age or personal circumstances.16

Appearing before RIDR, Department of Justice official Natalie Levman noted that victim testimony “is often an important part of the evidence put forward by the prosecution, as borne out in reported case law.” 17 Speaking to this Senate Committee, Janine Benedet, Professor of Law at the University of British Columbia, said that “the use of the reasonableness standard tends to allow stereotypes and myths about trafficking to enter the picture.” 18 Professor Benedet proposed that the bill be amended by adding the phrase “abuse of a condition of vulnerability” to the list of factors in the definition of exploitation.

1.2.2.3 Legal Statistics

The vulnerability of victims and control, coercion and fear are some of the factors that make it difficult to obtain testimony in criminal proceedings.19 An article on human trafficking appearing in the Statistics Canada publication Juristat in 2021 indicated the following:

Research to date has indicated that there are many challenges to prosecuting human trafficking cases including an inability to rely on victim testimony as victims are often reluctant or afraid to take action against their traffickers and as such it can be difficult to prove guilt.20

Human trafficking offences are not often criminally prosecuted in Canada. Statistics Canada data show that police documented 511 human trafficking incidents in 2019. This was the highest figure recorded since data were first published in 2009. Also in 2019, 89% of human trafficking charges brought before adult criminal courts were stayed, withdrawn, dismissed or discharged. Only 7% resulted in a guilty verdict.21

2 Description and Analysis

Bill S-224 consists of a single clause amending the first two subsections of section 279.04 of the Code.

The definition of exploitation proposed in amended section 279.04(1) now has two components. First, new section 279.04(1)(a) refers to the conduct that is at the root of the exploitation, namely, the actions that caused another person to provide or offer to provide their labour or a service. This component of the definition has been part of prior versions of this section.22 Second, new section 279.04(1)(b) incorporates part of the international definition of “trafficking in persons” from paragraph 3(a) of the Palermo Protocol, namely, a person’s conduct that

involves, in relation to any person, the use or threatened use of force or another form of coercion, the use of deception or fraud, the abuse of a position of trust, power or authority, or any other similar act.23

The bill also removes the criterion of a reasonable apprehension of fear from section 279.04(1). The current definition refers to

conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.24

In section 279.04(2), the bill repeals the interpretive provision that lists some of the factors that the court may consider in determining whether an accused exploited or intended to exploit another person, such as a threat, deception or abuse of power. Current case law, as outlined in Sinclair,25 recognizes the existence of relevant circumstances, some of which have appeared in this section since 2012.

2.1 Coming into Force

The bill comes into force on the day that it receives Royal Assent.

Notes