Criminal Code Provisions on the Trafficking of Persons: Rethinking Responsibility & Punishment for Culpable Persons (a 1L Blawg)

January 18, 2018

On the Government of Canada website, Human Trafficking, also known as modern day slavery, is referred to as one of the most heinous crimes. It is a crime that can manifest in a variety of ways. In most cases it involves the sexual exploitation of another for the sole and very lucrative, profit of the exploiter, but can involve other forms of forced labour. The circumstances in which the victim finds him or herself usually involve intimidation and threats of violence. In general, women are most vulnerable to be victims of this crime. Indigenous women and new immigrants are particularly susceptible in Canada (See: https://www.publicsafety.gc.ca/cnt/cntrng-crm/hmn-trffckng/index-en.aspx ).

 

The National Action Plan to Combat Human Trafficking (NAPCHT) is a government document highlighting the priorities and difficulties of law enforcement in this area (Found at: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/ntnl-ctn-pln-cmbt-eng.pdf). It reveals the four pillars that the government of Canada focuses on in its combat against trafficking of persons. These are the prevention of the crime, protection of its victims, prosecution of the perpetrators and working on the partnerships necessitated by combating this crime (NAPCHT p. 9).

 

Many issues are highlighted by the NAPCHT. One general, overarching issue is that crimes of human trafficking are very difficult to detect.

 This has to do with the inherently hidden nature of the crime, but it also has to do with the fact that most victims are unable or unwilling to go to the police to report their situation (NAPCHT p. 6). The book Invisible Chains: Canada’s Underground World of Human Trafficking encompasses testimonies which show that many victims come from overseas and do not speak the primary language of the country they are in, making it even more difficult to muster the courage to get help. In addition, these victims are usually stripped of any identification documents and have no money in their possession deteriorating their ability to leave the situation.

 

In terms of the prosecution of the perpetrators, the Criminal Code sets the basis on which this is achieved. Most issues highlighted in the NAPCHT have to do with the practical matters involved in prosecution such as being able to detect perpetrators through investigations and being able to find them.

 

The issue I want to canvass emanates from the section of the Criminal Code that deals with the prosecution of perpetrators of Human Trafficking. The Criminal Code should, in this instance, be used to increase the efficacy of punitive objectives and aims towards better protecting vulnerable groups. It is obvious that the efficacy of punitive objectives does not always positively correlate with an increase in punitive severity for that crime; some crimes are already associated with the most severe punishments possible and other crimes are not inherently severe enough to warrant the deployment of extreme punishment on the offender. Further, punitivity does not correlate with rehabilitation. However, denunciation in the case of severe and grievous harms has long been the ambit of criminal punishment; in my view, section 279.01 (1) of the Criminal Code's punishment does not meet the severity of the criminal act.  What I perceive as possibly two equally blameworthy criminal acts have punishments that are unexpectedly far apart on the spectrum of punitive severity. These unexpected disparities lead me to believe that this area of the Criminal Code might be one of those few areas that warrant an increase in punitive severity in order to improve its efficacy.

 

Section 279.01 (1) of the Criminal Code reads “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

  •  to imprisonment for life and to a minimum punishment of imprisonment for a term of five years 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

  •  to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case.”

 

What this provision indicates is that only if one fulfills section 279.01(1) and either kidnaps, assaults, sexually assaults  or causes death to the victim, might the culpable person be sentenced to life imprisonment;  if the accused captured by section 279.01(1) does not kidnap, assault, sexually assault, or cause death to the victim, his or her maximum possible sentence is merely 14 years imprisonment. The difficulty arises when considering what the penalty would be for an accused who did not, in particular,  commit an assault or sexual assault against the victim, but who brought the victim to a situation where such acts were to be committed by someone else, especially if such an outcome was reasonably foreseeable.

 

With the latter in mind, I find it difficult to reconcile the extreme difference in penalties and the possibility that either criminal act under section 279.01(1) could, in some circumstances, be effectively the same. The finding that most victims of Human Trafficking are sexually exploited for the profit of the perpetrator (NAPCHT p. 4) indicates that the victim is put in sexual situations that are paid for by others to the perpetrator. Assuming a situation where the victim has been assaulted, I am hard pressed to see the practical difference in guilt between one committing an assault or sexual assault on the victim and one putting the victim in a situation where he or she is inevitably going to be assaulted or sexually assaulted, or worse, killed.

 

My suggestion to solve this disparity would be to modify subsection (a) of the Criminal Code so as to attribute criminal responsibility and equivalent punishment to culpable persons for any instance of assault, or harm causing death on the victim while the victim is being kept in accordance with section 279.01(1), and not only those instances of assault or harm that are committed by the accused. This change would effectively punish the accused for any assault or harm committed on the victim while the victim was harboured in accordance with section 279.01(1), whether or not the accused actually committed the assault.

 

References:

Government of Canada Website on Human Trafficking:

https://www.publicsafety.gc.ca/cnt/cntrng-crm/hmn-trffckng/index-en.aspx

 

National Action Plan to Combat Human Trafficking:

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/ntnl-ctn-pln-cmbt-eng.pdf

 

Benjamin Perrin, Invisible Chains: Canada’s Underground World of Human Trafficking (Toronto: Pearson Canada Inc., 2010).

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