FOCUS ON HUMAN RIGHTS - Training comes amid increased scrutiny on mandatory minimums
Human trafficking will be among the 2020 training topics at the National Judicial Institute, according to Justice C. Adèle Kent, the organization’s chief judicial officer.
The training will be part of a program on national criminal law, Kent said in an email to Law Times. While it’s not the first time a human trafficking training has been offered by the institute, the offences in this area have recently received widespread coverage in the press.
GROWING FOCUS ON HUMAN TRAFFICKING PREVENTION
Advocates have been calling for more judicial training on dealing with sexual abuse complainants, and sex trafficking targeting women and girls accounts for most human trafficking cases in Canada, according to The Ontario Women’s Justice Network.
Canada has long sought to be a leader in human trafficking prevention, even training judges and prosecutors internationally on the issue, according to Public Safety Canada. Worldwide, lawyers and judges have gotten access to more resources to coordinate efforts on the topic, as well. The United Nations has an Anti-Human Trafficking Manual for Criminal Justice Practitioners, which guides court officers and law enforcement on minimizing the psychological impact that investigations may have on victims, and explains main forms of control used by traffickers.
Despite these efforts, legal scholars have pointed to problems with existing laws: few traffickers are ever brought to justice, poor quality prosecutions target lower level offenders; unfair prosecutions do not respect basic criminal justice standards; and certain sectors, including the sex industry, are disproportionately targeted by politicians, wrote a member of the International Bar Association’s Presidential Task Force on Trafficking.
Canada has also had to contend with the problems present inside the country.
OWJN noted that in 2016, the Ontario government launched the Ontario Strategy to End Human Trafficking, including changes to provincial law and a Provincial Human Trafficking Crown Prosecution Team. OWJN estimated last year that Ontario accounts for about 65 per cent of police-reported cases of human trafficking in Canada.
A 2015 document from the Canadian government, the Handbook for Criminal Justice Practitioners on Trafficking in Persons, also outlines relevant areas of the criminal code, previous case law, key preparations for sentencing hearings, interview techniques and victim supports. It also explores mandatory minimums that were enacted in this area of law in 2010 and 2014.
JUDICIAL POWER UNDER SCRUTINY
The efforts to improve legal reactions to human trafficking have not been without criticism. A particularly hot topic in the press has been judges’ deviations from mandatory minimums in human trafficking cases. It’s one of several areas of law where mandatory minimums have come under scrutiny.
In 2016, R. v. Lloyd, 2016 SCC 13 addressed mandatory minimums in the context of possession of drugs for the purpose of trafficking.
“The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable,” the majority judges wrote in that case.
But commentators raised questions about why judges would give lighter sentences to pimps who participate in “enslavement” of teenage girls. Lack of adherence to the mandatory minimums is a “a judicial mutiny,” suggested the Toronto Sun.
“As a survivor and a mother, I can’t think of anything more traumatizing for a child,” one activist told the Sun.
Toronto lawyer Samara Secter, an associate at Addario Law Group LLP, has represented clients whose human trafficking cases have been publicized.
“It is true that judges are declaring more and more mandatory minimums unconstitutional,” she said in an email. “This is because judicial discretion is important at the sentencing stage when judges are examining the exact nature of the conduct and the particular circumstances of the offender. The issue is not that judges do not take sexual offences against minors seriously – they unquestionably do.”
Toronto criminal defence lawyer Tobias Okada-Phillips, who has worked on human trafficking cases at his firm, Edward Royle and Partners LLP, says that the grave and often tragic offences in the world of human trafficking have sparked “rightful” public concern and outrage. But he also says that — like most cases in criminal defence — lawyers rely on judges’ expertise (and experience handing down similar sentences) when untangling the complex web of human trafficking rings.
“There was a case . . . . where a female had two hats on — she's working for somebody else, while also trying to get other people to work for her at the same time. So, is she a victim or a criminal in that situation? There are not always bright, clear lines — in many ways, she is both,” he says. “Then there's the other things that are always common to any sentencing, which is: your prior criminal history, the prospects for rehabilitation, your remorse, other circumstances in your life, mental health issues, drug abuse issues, previous abuse.”
In the Lloyd decision, the Supreme Court noted that,“[a]t one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences.”
“At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before,” the group of SCC judges wrote for the majority opinion in Lloyd. “Most Canadians would be shocked to find that such a person could be sent to prison for one year.”
Secter said that human trafficking provisions do not always relate to offences that are sexual in nature.
“The problem with mandatory minimums is that a ‘one size fits all’ sentencing regime cannot fairly apply to offences that capture a very broad range of conduct,” says Secter.
Okada-Phillips says it’s debatable whether there’s any “trend” in terms of mandatory minimum sentences in human trafficking circumstances. The Justice Department’s handbook notes that “welfare of the victim should be a primary consideration in any human trafficking case including during sentencing proceedings.”
Still, he says, judges think deeply about the “grey” areas in case law, even if the issues are politically sensitive or closely watched by the public.
“It is tough to do this every day — you have to believe that people are presumed innocent and you have to believe that everybody deserves a defense,” he says. “You have an obligation to your client, whatever your political views are.”
Editor’s note: An earlier version of this story misidentified the firm of Tobias Okada-Phillips. It is Edward Royle and Partners LLP.