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Criminal - Trafficking in Persons. R. v. T.J.F.
In R. v. T.J.F. (SCC, 2024) the Supreme Court of Canada dismissed a Crown appeal, here in relation to charges for "trafficking in persons .... and receiving a material benefit from it, contrary to ss. 279.01(1) and 279.02(1)" of the CCC.
Here the court reviews the law and some Canadian history (particularly regarding Indigenous women and girls) of 'trafficking in persons':[51] Before addressing the trial judge’s assessment of the evidence based on a wrong legal principle, I will interpret s. 279.01 Cr. C. This provision establishes the offence of trafficking in persons.
(1) Interpretation of Section 279.01 Cr. C.
[52] Criminal law is no exception to the basic rule of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 16, citing R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1; Interpretation Act, R.S.C. 1985, c. I-21, s. 12; R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 S.C.R. 398, at pp. 411-14).
[53] Bill C-49, An Act to amend the Criminal Code (trafficking in persons), 1st Sess., 38th Parl., 2004-2005, came into force on November 25, 2005 (An Act to amend the Criminal Code (trafficking in persons), S.C. 2005, c. 43). Bill C-49 created the offences of trafficking in persons (s. 279.01 Cr. C.), material benefit (s. 279.02 Cr. C.), and withholding or destroying documents (s. 279.03 Cr. C.). It also defined “exploitation” (s. 279.04 Cr. C.). To this date, our Court has never had the opportunity to interpret those provisions.[1]
[54] For ease of reference, ss. 279.01, 279.02, and 279.04 Cr. C. are reproduced below as they read during the time period specified in the indictment at issue:279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable
(a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for a term of not more than fourteen years in any other case.
(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.
279.02 Every person who receives a financial or other material benefit, knowing that it results from the commission of an offence under subsection 279.01(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years.
279.04 For the purposes of sections 279.01 to 279.03, a person exploits another person if they
(a) 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; or
(b) cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed. (a) Object of Section 279.01 Cr. C.
[55] When Bill C-49 was enacted, the RCMP estimated that approximately 600 women and children were trafficked into Canada each year for sexual exploitation alone, and at least 800 women and children for all domestic markets, including drug trade, domestic work, and labour for garment or other industries (J. Oxman-Martinez, M. Lacroix and J. Hanley, Victims of Trafficking in Persons: Perspectives from the Canadian Community Sector (2005), at p. 2; see also House of Commons Debates, vol. 140, No. 125, 1st Sess., 38th Parl., September 26, 2005, at p. 7990 (Vic Toews); House of Commons Debates, vol. 140, No. 135, 1st Sess., 38th Parl., October 17, 2005, at p. 8631 (Hon. Judy Sgro)).
[56] There was, at the time, an existing prohibition on trafficking in the immigration context (Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), s. 118). Bill C-49 aimed to “broaden the reach of our existing prohibition to comprehensively respond to all forms of human trafficking, whether they occur wholly within Canada or whether they involve some cross-border or international dimension” (House of Commons Debates, October 17, 2005, at p. 8620 (Hon. Irwin Cotler); United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2237 U.N.T.S. 319, Article 3).
[57] Section 279.01(1) Cr. C. broadens the existing prohibition in two ways. First, it criminalizes trafficking in persons beyond the immigration context (s. 118 of the IRPA; Urizar v. R., 2013 QCCA 46, at paras. 68, 73 and 77; see also K. Plouffe-Malette, “L’interprétation de la criminalisation de la traite des êtres humains en droit pénal canadien à l’aune du Protocole de Palerme: analyse de l’arrêt Urizar de la Cour d’appel du Québec” (2014), 44 R.D.U.S. 1, at p. 17; H. Gluzman, “Human Trafficking and Prostitution in Canada – Intersections and Challenges” (2018), 66 C.L.Q. 109, at p. 123).
[58] Second, s. 279.01(1) Cr. C. captures a wide range of conduct under the actus reus (see Article 3(a) of the Protocol). The broad scope of the actus reus is counterbalanced by the requirement that it be carried out “for the purpose of exploiting [the victim] or facilitating their exploitation”. This tailors the offence to conduct that goes to the heart of trafficking in persons while maintaining the flexibility necessary to respond to all its forms.
[59] Underlying Bill C-49’s object of capturing all forms of trafficking in persons is the concern for the protection of women and children, who are especially vulnerable to trafficking in persons (see House of Commons Debates, September 26, 2005, at p. 7988 (Hon. Paul Harold Macklin); House of Commons Debates, October 17, 2005, at p. 8619 (Hon. Irwin Cotler); see also the preamble and Article 2(a) of the Protocol).
[60] Our Court’s jurisprudence, national commissions and inquiries, and research echo this concern and recognize that women and children, including Indigenous women and girls, are “disproportionately subjected to sexual violence” (R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 68 and 70; see also R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 198; Statistics Canada, Gender-based violence and unwanted sexual behaviour in Canada, 2018: Initial findings from the Survey of Safety in Public and Private Spaces (December 2019); Statistics Canada, Violent victimization and perceptions of safety: Experiences of First Nations, Métis and Inuit women in Canada (April 2022); Public Inquiry Commission on relations between Indigenous Peoples and certain public services, Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress – Final report (2019), at pp. 120-21; Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), at pp. 226-27; National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019); E. Snyder, V. Napoleon and J. Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015), 48 U.B.C. L. Rev. 593).
[61] Five years after the enactment of Bill C-49, Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years), 3rd Sess., 40th Parl., 2010 (enacted as S.C. 2010, c. 3, s. 2), created a new offence criminalizing the trafficking of persons under the age of 18, punishable by mandatory minimum sentences, and increased the maximum sentence to life imprisonment where especially violent acts have been committed against a child victim (s. 279.011(1) Cr. C.).
[62] In sum, the object of s. 279.01(1) Cr. C. is to comprehensively respond to all forms of trafficking in persons with a focus on women and children, who are more commonly affected. This means criminalizing a wide range of conduct carried out with the purpose of exploiting or facilitating the exploitation of one or many victims. Undoubtedly, regular violence and threats of violence by an accused towards a victim and, more generally, a violent relationship with a victim, can be the means of perpetuating such conduct.
(b) Text and Context of Section 279.01 Cr. C.
[63] Our Court has not yet had the opportunity to interpret the meaning of the phrase “control, direction or influence”. Both the Court of Appeal of Quebec in Urizar and the Court of Appeal for Ontario in R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, relied on R. v. Perreault (1996), 1996 CanLII 5641 (QC CA), 113 C.C.C. (3d) 573 (Que. C.A.), to discern its meaning. There, the Court of Appeal of Quebec interpreted the meaning of the phrase “exercises control, direction or influence over the movements of a person” in the context of the procuring offence codified at s. 286.3(1) Cr. C. (formerly s. 212(1)(h) Cr. C.) to mean that:The element of control refers to invasive behaviour, to ascendancy which leaves little choice to the person controlled. This therefore includes acts of direction and influence. There is the exercise of direction over the movements of a person when rules or behaviours are imposed. The exercise of direction does not exclude the person being directed from having a certain latitude or margin for initiative. The exercise of influence includes less constricting actions. Any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence. [Emphasis deleted; pp. 575-76.] [64] The Court of Appeal for Ontario summarizes exercising control as being “like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it” (Gallone, at para. 47).
[65] What first emerges from those interpretations is a spectrum of power that the accused exerts over the victim’s ability to move freely and their actual movements. On one end of the spectrum, the accused will exercise “control” over the victim’s movements; the former will “regulate or govern” the latter (Black’s Law Dictionary (12th ed. 2024), at p. 418), such that the victim will be left with little choice over their movements. On the other end, the accused will exercise “influence” over the victim’s movements when they will, at minimum, “induce action or change the decisions or acts of [the victim]” about their movements (p. 928). This means that the victim is free to move wherever they like, but that when they decide how to exercise their freedom, the accused “alter[s], sway[s], or affect[s] [their] will” (p. 928).
[66] Contrary to “control” and “influence”, “direction” speaks less to the degree of power the accused exerts over the victim’s movements than to the way the accused exerts that power. “Direction” means “[m]anagement, guidance, advice or instruction”, and can sometimes refer to an “authoritative command” (The Dictionary of Canadian Law (5th ed. 2020), at p. 319, citing R. v. Bazinet (1986), 1986 CanLII 108 (ON CA), 25 C.C.C. (3d) 273 (Ont. C.A.), at p. 284), and the verb “to direct” is defined as “[t]o guide”, “to govern”, and “[t]o instruct (someone) with authority” (Black’s Law Dictionary, at p. 576). While direction will often overlap with control or influence, it can be found to have occurred even where the victim’s movements have not been controlled or influenced. Since the enumeration “control, direction or influence” is disjunctive, the actus reus can be satisfied if the movements of the victims have only been subject to the accused’s direction.
[67] Section 279.01(1) Cr. C. specifies that control, direction, or influence must be “exercise[d]”. According to the Black’s Law Dictionary, the verb “exercise” (in French, “exercer”) implies the realization of something: “1. To make use of; to put into action . 2. To implement the terms of; to execute ” (p. 716). It is then not enough that the accused has acquired the power or the ability to control, direct, or influence the victim’s movements. They must have actualized it in one way or another, such that the victim’s movements have been controlled, directed, or influenced by the accused.
[68] It follows that nothing in the text of the provision bars the Crown from establishing the actus reus through evidence of violence and threats of violence by an accused towards a victim and, more generally, a violent relationship between the two, if the effect of that violence is such that the victim’s movements have been controlled, directed, or influenced.
[69] Control, direction, or influence exercised by the accused over the victim’s movements can persist over time, thus creating a situation or a relationship throughout which the victim’s movements are being controlled, directed, or influenced regularly.
(c) Conclusion
[70] The text, context, and purpose of s. 279.01 Cr. C. all support the position that the Crown can adduce evidence showing an accused’s violent relationship with a victim, or regular violence and threats of violence against the victim, in an effort to establish the actus reus of the trafficking in persons offence. Such conduct can amount to exercising control, direction, or influence over their movements during a period of time, provided that the effect of that violence is that the victim’s movements have been effectively controlled, directed, or influenced during that time.
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(d) Regular Violence and Threats of Violence by an Accused Can Be Relevant and Material to the Actus Reus
[91] Regular violence and threats of violence by an accused against a victim and, more generally, their violent relationship, can amount to exercising control, direction, or influence over their movements during a period of time, provided that the effect of that violence is that the victim’s movements have been effectively controlled, directed, or influenced during that time. Violence is also relevant and material to the definition of exploitation, as this definition is met when the accused engages in any conduct, including regular violence and threats of violence, that both causes the victim to provide (or offer to provide) labour or a service, and could be reasonably expected to cause the victim to believe that their safety (or the safety of a person known to them) would be threatened if they failed to provide that labour or service.
[92] As I stated earlier, the range of conduct captured under s. 279.01(1) Cr. C. is broad. It captures “[e]very person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation”. The use of the word “or” indicates that the actus reus is disjunctive. This element of the offence is made out if the Crown establishes that the accused engaged in any conduct set out in the provision (R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 80; Gallone, at para. 33; Urizar, at para. 72).
[93] Section 279.01(1) Cr. C. captures two clusters of conduct. The first includes specific actions: “. . . recruits, transports, transfers, receives, holds, conceals or harbours . . . .” The second captures accused who “exercise control, direction or influence over the movements of a person”. In the present case, the Crown relies on this second cluster of conduct to demonstrate that the accused committed the actus reus. It submits that regular violence and threats of violence by an accused against a victim, and their violent relationship, can amount to exercising control, direction, or influence over their movements over a period of time. I agree.
[94] As detailed earlier, s. 279.01(1) aims to broaden the prior existing prohibition and respond to all forms of trafficking in persons, with a focus on protecting women and children who are “disproportionately subjected to sexual violence” (Friesen, at paras. 68 and 70; see also Barton, at para. 198). This provision prohibits a person from preventing another person from moving freely through the exercise of control, influence or direction. The Crown can establish the actus reus through evidence of regular violence and threats of violence by an accused towards a victim and, more generally, a violent relationship between the two, that prevents the victim’s movements because they are controlled, directed, or influenced.
[95] Whether regular violence and threats of violence by an accused against a victim and, more generally, their violent relationship, can be relevant and material to both the actus reus of the trafficking in persons offence and the definition of exploitation is a question of law that must be answered in the affirmative.
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[98] The accused’s purpose to exploit or facilitate the exploitation of a victim, depending on the circumstances, can be inferred from a finding that the accused exploited the victim in the first place. Further, evidence of regular violence and threats of violence by the accused against the victim, when paired with other evidence establishing that the victim engaged in labour or offered labor during the time they were subjected to the accused’s regular violence, can be relevant to establishing exploitation. I explain each conclusion in the paragraphs that follow.
[99] To secure a conviction under s. 279.01(1) Cr. C., the Crown must establish that the accused engaged in the actus reus “for the purpose of exploiting [the person] or facilitating their exploitation”. Those words do not require that actual exploitation occurs. Exploitation is not an essential element of the offence; only the intention to exploit or facilitate exploitation is an element of the offence (see A. (A.), at para. 85, citing Urizar, at para. 69; see also Chahinian v. R., 2022 QCCA 499, at para. 82).
[100] However, the Court of Appeal for Ontario has suggested that the mens rea can sometimes be inferred from a finding that exploitation occurred (A. (A.), at para. 87, cited with approval in Gallone, at para. 54, and R. v. Sinclair, 2020 ONCA 61, 384 C.C.C. (3d) 484, at para. 12). I agree. A finding of actual exploitation could, depending on the evidence, be relevant and material to the key question of whether the accused acted for the purpose of exploiting the complainant.
[101] This inference is grounded in the assumption that “people are usually able to foresee the consequences of their acts” (R. v. Buzzanga (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.), at p. 387, cited with approval in R. v. Chartrand, 1994 CanLII 53 (SCC), [1994] 2 S.C.R. 864, at p. 890; Barton, at para. 167; see also K. Roach, Criminal Law (8th ed. 2022), at pp. 214-15). If the accused is found to have knowingly exploited the victim, such that the accused knows that exploitation would result from their conduct, then it could, depending on the circumstances, be reasonable to infer that the accused acted with the intent to exploit the victim. Nonetheless, when looking at evidence as a whole, courts should pay careful attention to evidence that would contradict, even refute, the inference.
[102] Regular violence and threats of violence by an accused against a victim is also captured by the definition of exploitation set out in s. 279.04 Cr. C.:279.04 For the purposes of sections 279.01 to 279.03, a person exploits another person if they
(a) 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; [103] We can extract from this definition two requirements that must be satisfied for exploitation to occur. Exploitation involves conduct that both (i) causes the victim to provide (or offer to provide) labour or a service and (ii) a reasonable expectation that the victim could believe that their safety (or the safety of a person known to them) would be threatened if they failed to provide that labour or service.
[104] The definition does not specify the term “conduct”, which can take many forms, including regular violence and threats of violence towards a victim and, more generally, a violent relationship between the two. This aligns with the object of s. 279.01(1) Cr. C. and An Act to amend the Criminal Code (trafficking in persons), S.C. 2012, c. 15, s. 2, which added a list of factors that the courts may consider in determining whether an accused exploits another person:(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority. [105] In determining whether the accused’s conduct could reasonably be expected to cause the belief, the judge must have regard to all circumstances, which include the victim’s personal characteristics and vulnerabilities, such as their lack of education, prior victimization, socio-economic disadvantage, and social and family isolation, among others. In Sinclair, the Court of Appeal for Ontario listed circumstances that might be relevant in the analysis (at para. 15):. the presence or absence of violence or threats
. coercion, including physical, emotional or psychological
. deception
. abuse of trust, power, or authority
. vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources
. isolation of the complainant
. the nature of the relationship between the accused and the complainant
. directive behaviour
. influence exercised over the nature and location services provided
. control over advertising of services
. limitations on the complainant’s movement
. control of finances
. financial benefit to the accused, and
. use of social media to assert control or monitor communications with others. [106] In sum, exploitation occurs when the accused engages in any conduct, including regular violence and threats of violence, that both causes the victim to provide (or offer to provide) labour or a service and could be reasonably expected to cause the victim to believe that their safety (or the safety of a person known to them) would be threatened if they failed to provide that labour or service. The latter must be assessed using an objective test, having regard to all the circumstances, including the victim’s vulnerabilities.
[107] If the victim is known to have provided labour (or to have offered to provide labour) during a specified time period, the fact that they were regularly subjected to violence and threats of violence during that time can be the cause of the victim’s decision to provide said labour. It could also be inferred from the regular violence that the victim could be reasonably expected, in all the circumstances, to believe that their safety would be threatened if they failed to provide said labour.
[108] Nevertheless, even where the trial judge accepts that actual exploitation occurred, the Crown must still prove beyond a reasonable doubt that the accused subjectively intended to exploit the complainant.
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