INTRODUCTION AND BRIEF DESCRIPTION
Consent does not justify a charge under subsection (1).
SECTION WORDING
279.01(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.
EXPLANATION
Section 279.01(2) of the Criminal Code of Canada is an important provision that highlights the criminalization of non-consensual sexual activities. The section states that no consent to the activity that forms the subject-matter of a charge under subsection (1) is valid. Subsection (1) refers to any sexual activity that is non-consensual due to circumstances like threat, force, or incapacity. This provision signifies that the Canadian legal system does not recognize consent as a defense in cases of sexual assault, exploitation, or other forms of non-consensual sexual conduct. The reason behind such a strict approach towards consent is to prevent individuals from being coerced or manipulated into sexual acts without their will. It also ensures that individuals who are incapable of providing consent, like minors, people impaired due to drugs/alcohol, or those with mental disabilities are protected from being taken advantage of. The law recognizes sexual autonomy as a fundamental human right, and any attempt to violate that right through non-consensual sexual acts is taken very seriously, as such violations can lead to physical and psychological harm to the victim. Section 279.01(2) of the Criminal Code of Canada is thus an important provision that helps uphold the dignity of individuals and protect them from sexual exploitation. Its inclusion in the Criminal Code of Canada is a reflection of the country's commitment to protecting individuals from sexual violence and assault.
COMMENTARY
Section 279.01(2) of the Criminal Code of Canada is a piece of legislation that addresses the issue of consent in cases of human trafficking. In essence, this section of the code stipulates that any consent given by a victim of human trafficking is not valid if it pertains to the activity that forms the basis of a charge under subsection (1) of the section. Subsection (1) deals with cases of human trafficking where a person recruits, transports, transfers, or harbors another person for the purpose of exploitation. The rationale behind section 279.01(2) is that victims of human trafficking are often subjected to various forms of coercion, manipulation, and abuse. Therefore, any purported consent that they may give to their traffickers is not a genuine and voluntary expression of their free will. In other words, the traffickers use a variety of tactics to obtain the victim's compliance, including physical violence, psychological pressure, deception, and exploitation of vulnerabilities. As such, it is not appropriate to treat such consent as valid or binding. One of the key implications of section 279.01(2) is that it shifts the burden of proof from the victim to the alleged trafficker. In other words, it is not the victim's responsibility to prove that their consent was not given freely and voluntarily. Rather, it is the burden of the prosecution to demonstrate that the victim's consent was not valid, which can be achieved by showing that the victim was coerced or deceived in some way. This provision is significant for several reasons. First, it reflects the growing recognition that human trafficking is a serious human rights violation that requires a robust legal response. By acknowledging that victims of human trafficking are not able to give valid consent, the law is sending a clear message that such exploitation will not be tolerated. This, in turn, can help to deter potential traffickers from engaging in this activity and give victims the confidence to come forward and seek help. Second, section 279.01(2) recognizes the unique vulnerabilities of victims of human trafficking. By acknowledging that victims may be coerced or manipulated into giving consent, the law is shifting away from a traditional view of consent as an unambiguous and binary concept. Instead, it recognizes that consent can be influenced by power imbalances, inequality, and abuse, and that victims of human trafficking may not be in a position to give genuine and voluntary consent. Third, section 279.01(2) can help to address the issue of victim blaming and stigma. Historically, victims of human trafficking have often been viewed as complicit in their own exploitation, either because they have been coerced into giving consent or because they have engaged in "immoral" activities. By rejecting the validity of any purported consent by victims of human trafficking, the law is sending a message that victims should not be blamed for their predicament and that they are not responsible for their exploitation. However, it can be argued that this provision is not without its challenges. One of the concerns is that it may be difficult to prove that a victim's consent was not valid, particularly in cases where the victim denies being coerced or manipulated. This could create a legal loophole that could be exploited by traffickers to avoid prosecution. In conclusion, section 279.01(2) of the Criminal Code of Canada is a crucial provision in the fight against human trafficking. It reflects a more nuanced and sophisticated understanding of consent and the dynamics of trafficking, and is an important step towards ensuring that victims are not blamed or held responsible for their exploitation. While there are some challenges associated with this provision, the benefits are significant and underscore the importance of robust legal protections for vulnerable individuals.
STRATEGY
Section 279.01(2) of the Criminal Code of Canada makes it clear that the concept of consent has no place in the context of charges relating to human trafficking. The law assumes that no one can give valid consent to trafficking, regardless of the circumstances. This provision is designed to ensure that those who engage in human trafficking will be prosecuted to the fullest extent of the law, regardless of whether or not the victim appears to have willingly participated in the crime. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that need to be taken into account. The first and most obvious is to ensure that there is sufficient evidence to demonstrate that the victim was, in fact, trafficked. This may require obtaining statements from witnesses, collecting physical evidence, and conducting a thorough investigation of the circumstances surrounding the victim's situation. Once the evidence has been gathered, it is important to determine the most appropriate charges to lay against the accused. This may involve assessing whether charges will be laid under subsection (1) or under other relevant sections of the Criminal Code of Canada. Depending on the nature of the crime, it may also be necessary to consider charging the accused with related offenses, such as assault, sexual assault, or extortion. In addition to the legal considerations, there are also strategic considerations that may need to be taken into account when dealing with human trafficking cases. For example, it may be necessary to work with other organizations, such as law enforcement agencies, immigration authorities, and victim services providers, to ensure that victims are protected and that they have access to the support they need. Another key strategy is to ensure that victims are treated with compassion and respect throughout the legal process. This may involve providing them with emotional support, ensuring that they have access to legal counsel, and helping them to navigate the complexities of the justice system. Ultimately, the key to successfully dealing with human trafficking cases is to take a multi-layered approach that considers the legal, strategic, and social aspects of the crime. By working together with law enforcement officials, victim services providers, and other organizations, it is possible to protect victims, prosecute offenders, and reduce the prevalence of human trafficking in Canada.