Human trafficking Lawyers in Canada

The Crown is the prosecutor. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty according to law, so the Crown is the side that has to prove the charge.

Section 279.01(1) lists the acts. A person commits the offence who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person. The act must be done for the purpose of exploiting them or facilitating their exploitation. The wording of the section does not mention crossing a border.

Section 279.04(1) defines exploitation for the purposes of sections 279.01 to 279.03. 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 the labour or service. Section 279.04(4) adds that a person's safety includes their psychological safety.

Section 279.04(2) says the court must consider all the circumstances, including the nature of the relationship between the accused and the complainant and the listed facts for which there is evidence. The list includes the use or threat of force or another form of coercion, the use of deception, the abuse of a position of trust, power or authority, and controlling or directive behaviour.

Two further rules appear in section 279.01. Section 279.01(2) says no consent to the activity that forms the subject-matter of a charge is valid. Section 279.01(3) sets a presumption: evidence that a person who is not exploited lives with or is habitually in the company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation.

Section 279.02(1) applies to a person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under section 279.01(1).

Under section 279.01(1)(a), trafficking is an indictable offence punishable by imprisonment for life and a minimum of five years if the person kidnaps, commits an aggravated assault or aggravated sexual assault against, or causes death to, the victim during the offence. In any other case, section 279.01(1)(b) sets a maximum of 14 years and a minimum of four years.

For a person under the age of eighteen years, section 279.011(1)(a) sets life imprisonment and a minimum of six years where the same circumstances apply. In any other case, section 279.011(1)(b) sets a maximum of fourteen years and a minimum of five years.

Receiving a material benefit under section 279.02(1) carries up to 10 years on indictment, or it can be prosecuted as a summary conviction offence. Where the benefit comes from trafficking of a person under eighteen, section 279.02(2) sets a maximum of 14 years and a minimum of two years. Withholding or destroying documents under section 279.03(1) carries up to five years on indictment or summary conviction. Under section 279.03(2), for the case involving a person under eighteen, the maximum is 10 years and the minimum is one year.

A maximum or a minimum is a limit set in the law. It does not say what sentence a court would give in any case.

A person charged is not required to prove anything. The Crown must prove the parts of the charge described above, and whether it has done so is for the court to decide on the evidence. Because section 279.01(2) says no consent to the activity is valid, the question of consent is governed by that section.

Charter rights apply from the start. Section 10(b) gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. Section 8 gives everyone the right to be secure against unreasonable search or seizure. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute. Section 11(b) gives a person charged the right to be tried within a reasonable time.

Section 12 gives everyone the right not to be subjected to any cruel and unusual treatment or punishment. Where a person believes a right has been infringed, section 24(1) lets them apply to a court for a remedy. Whether a right was infringed in a particular case is a question for the court.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones, and trials there are by a judge alone or with a jury.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says the decision maker gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause. Section 515 has other rules for particular situations, and a lawyer can explain how they apply.

After a conviction on indictment, an appeal goes to the court of appeal. Under section 675(1), a person may appeal as of right on a question of law alone. An appeal on a question of fact or of mixed law and fact needs leave, and so does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer for the length of the criminal case. Applications are online or by phone at 1-800-668-8258. The Law Society of Ontario keeps a public Lawyer and Paralegal Directory where a lawyer's licence can be looked up. This site lists Ontario lawyers by city, and nothing on this page ranks or recommends any of them.