July 21, 2022 – By Shannon Penney and Patricia Elia – Elia Associates PC Condominium Lawyers
Section 279.01(1) of the Criminal Code explains that human trafficking involves the recruiting, transporting, transferring, receiving, holding, concealing or harbouring a person, or exercising control, direction, or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation.
Who is at Risk?
In Canada, women and girls are at greatest risk of being trafficked, as well as individuals from certain populations, such as Indigenous women and girls, new immigrants, children in the child welfare system and those struggling socially and/or financially. Further, migrant workers may be at higher-risk of exploitation due to language barriers, lacking access to services and support, and/or the correct information about their legal rights.
Ninety-five percent of human trafficking victims are girls and women and of those victims, 89% are under the age of 35, over 20% are under the age of 18 and 43% are between the ages of 18 to 24 and 1 in 3 victims reported some kind of physical injury related to the incident. Only 11% of victims were trafficked by a stranger, most were trafficked by someone they knew – for 29% of victims their trafficker was a friend or acquaintance and for 25% of victims their trafficker was a current or former boyfriend or girlfriend.
The number and rate of police-reported human trafficking incidents have been trending upward. The number of human trafficking incidents reported in 2019 marked a 44% increase from the previous year. In total, from 2009 to 2019, there were 2,468 police-reported incidents in Canada where human trafficking was the most serious violation related to the incident.
Despite an attempt to track incidents of human trafficking, Stats Canada acknowledges police-reported incidents don’t represent the full picture of human trafficking. The Canadian Centre to end Human Trafficking released their report based on calls received from their hotline between 2019-2021 – 415 incidents of human trafficking and 1 in 3 callers to their hotline was a victim or survivor of human trafficking and of those callers, 44% were current victims of human trafficking.
Trafficking in persons is about the exploitation of a person and does not necessarily involve movement. For the purpose of the trafficking offences, section 279.04 of the Criminal Code states that a person exploits another person if they:
- cause someone 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.
- cause a person, 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.
Awareness of human trafficking, increased vigilance and collection of data will help prevent human trafficking and increase the level of convictions as more incidents are reported to the police.
Prostitution vs. Human Trafficking
Prostitution is a transaction that involves both the purchase and the sale of sexual services. The Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25 (the “PCEPA”) prohibits purchasing sexual services that makes the prostitution transaction illegal treats prostitution as a form of sexual exploitation that disproportionately impacts women and girls. Its overall objectives are to:
- Protect those who sell their own sexual services;
- Protect communities, and especially children, from the harms caused by prostitution; and
- Reduce the demand for prostitution and its incidence.
Purchasing sexual services and communicating in any place for that purpose is a criminal offence and a person convicted of this offence may be sentenced to up to 5 years imprisonment. Mandatory minimum fines also apply, including higher fines if the offence is committed in a public place that is or is next to parks, schools, religious institutions or places where children can reasonably be expected to be present. A person convicted of purchasing sexual services from a person under the age of 18 years may be sentenced to up to 10 years imprisonment.
Human Trafficking, Short-Term Accommodations, Prostitution and Condominiums
Toronto is now the city with the largest number of residential condominiums in the world by volume. Toronto now has more condominiums than Manhattan, Vancouver, Dubai, Singapore, Miami, Los Angeles and London. With this comes opportunities for criminals to capitalize on weak risk management and security protocols in condominium communities, including identifying signs of human trafficking. Most condominium communities, in our opinion, are not prepared to identify or deal with such criminal activities because there is minimal awareness around this issue. “That could never happen in our community. We saw nothing.” From our discussion with Sandy Biback of Meeting Professionals Against Human Trafficking at our CondoWise Three Part Series on the Dark Side of Condominiums , we appreciate that condominiums are ripe for human trafficking and criminal activities, which activities undermine our condominium communities and society as a whole. From our review, socio economics do not necessarily pinpoint where human trafficking will occur and thus we all need to be vigilant, especially condominiums in large urban cities, such as Toronto.
Condominium corporations have certain obligations under the Condominium Act, 1998. S.O. 1998 c. 19, (the “Act”) that apply to these circumstances. Under s.17 of the Act, the condominium corporation has a duty to control, manage and administer the common elements and take reasonable steps to ensure compliance with Act and the condominium’s governing documents. Under s. 26 of the Act, a condominium corporation is deemed occupier of the common elements for liability purposes. Accordingly, the condominium corporation has an obligation to ensure that individuals are reasonably safe while on the common elements. Under s.117 of the Act, a condominium corporation has an obligation to ensure that no dangerous activity or condition shall exist on the property and human trafficking is considered to be a dangerous condition as the health, safety and security of individuals are at risk should such an activity exist while on the condominium’s property. Under s.119 of the Act, a condominium corporation has an obligation to comply with the Act and has the right to ensure that owners comply with Act and the governing documents. In order to ensure that the condominium is acting in accordance with the Act and to ensure that no dangerous activities exist, condominium corporations should take steps to reduce or, if at all possible, eliminate the dangerous condition to make it harder for this activity to persist. Trafficking can be done more discreetly in condominium buildings as there is less interaction with other residents and security at check points.
Web-based short-term accommodation business provide an alternative to hotel accommodations by connecting out-of-town travelers to owners who want to rent out their homes. These rentals are usually for short periods of time and can be a favourite non-traceable gateway for traffickers, as it is easy to move victims around. Some short-term rental services have received criticism, specifically by Toronto police as it was determined that human trafficking cases significantly increased and were connected to properties advertised by certain short term accommodation providers and the same had not developed or implemented protocols to stop trafficking.
Although short-term rental accommodations can play an integral part of the criminal framework for human traffickers, long-term tenancies in multi-storey condominium buildings have also been linked as a common method for criminals to use for human trafficking purposes This is due, in part, because residents in a condominium setting may remain anonymous to other neighbours due to the large traffic of residents, guests, staff etc. maneuvering through the building. To protect the corporation and its residents, we recommend that policies and rules be put in place for short term rentals and that awareness of suspicious behaviours be brought to the attention of landlords/unit owners and residents. If people know, they can do something about it.
Rules and policies must be in place to address the impact of short-term rentals and should clearly prohibit illegal activities and/or identify behaviour that could harm a community. Community policies and rules should specifically require all unit owners to ensure that they, their tenants, guest and invitees are clearly aware that human trafficking is prohibited which involves the recruiting, harbouring, transporting, transferring or receiving of an individual by force, fraud or coercion for the purposes of labour or sexual exploitation. Condominium corporations should, in their policies and rules, specify the steps that a short-term accommodation provider should have in place to ensure human trafficking is prevented. Often, this criminal behaviour is missed and individuals turn a blind eye whether that be due to fear or that they do not understand the signs of human trafficking which is why raising awareness is so important. Thus, communication about the techniques used and signs of human trafficking should be shared with unit owners and service providers such as management and security. Records should be kept and enforcement should be undertaken.
A condominium corporation may via its rules and policies delineate the expectations of owners/hosts and their guests. Where applicable, evidence of licensing should be required by the condominium corporation. Unit owners should be required to be responsive and available to answer any questions presented to them and their properties must be secure at all points of entry. Any breaches of the policies and/or rules can result in the condominium corporation seeking compliance including seeking to have the host having its licence removed and depending on the severity, local law enforcement may become involved.
Some condominium corporations across the province do permit short term accommodation; however, we encourage you to review your municipal by-laws and your condominium’s declaration, by-laws and rules to determine whether they are in fact allowed as it has been found that some condominiums prohibit this. Some declarations contain language limiting the use of units to “private single families” or for “residential purposes”. Other declarations prohibit rooming, boarding as well as hotel-like occupancy, such as Airbnb. It is also important to review your municipal by-laws as this differs from place to place – for example, the city of Toronto, requires short term rental owners to register for a city licence to operate short term rentals from their properties. Prohibiting short term rentals may reduce the risk of potential human trafficking activity as it would limit the turnover within a unit and limit the use for longer term, residential purposes.
Should your condominium corporation’s declaration not address short term accommodation, it is recommended that you discuss this with your legal counsel to review and update the same to manage the risk and other considerations that come with short term accommodations such as, the potential increase in maintenance and repair costs, and/or prohibit the same, if that is a desired and legal change. Further, if a unit owner does not occupy the unit, the condominium corporation must be provided with the tenants’ information including a lease agreement, if there is one. This is a requirement under s.83 of the Act. Finally, the indemnification provisions in the Declaration need to be robust enough to allow for the collection of compliance costs against an owner.
We encourage condominium boards, property managers, owners and residents to educate themselves on human trafficking and its exposure within the condominium industry to help tackle this criminal activity that is very real and is operating within our communities. Further, condominium boards may consider an awareness campaign that would include informing owners of an increase in human trafficking, signs to look for and what to do in circumstances where human trafficking is suspected.
If you have any questions, please do not hesitate to contact anyone on our team:
All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.