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S.M. 2011, c. 19
Bill 29, 5th Session, 39th Legislature
The Child Sexual Exploitation and Human Trafficking Act
(Assented to June 16, 2011)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The following definitions apply in this Act.
"applicant" means a person applying for a protection order. (« requérant »)
"controlled substance" means
(a) a controlled substance as defined in the Controlled Drugs and Substances Act (Canada);
(b) an intoxicating substance as defined in The Minors Intoxicating Substances Control Act; or
(c) liquor. (« substance désignée »)
"court" means the Court of Queen's Bench of Manitoba. (« tribunal »)
"judicial justice of the peace" means a person appointed as a judicial justice of the peace under The Provincial Court Act. (« juge de paix judiciaire »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"protection order" means an order made under section 6. (« ordonnance de protection »)
"respondent" means a person against whom a protection order is sought. (« intimé »)
"sexual conduct" means
(a) sexual intercourse;
(b) touching the body of any person for a sexual purpose;
(c) exposing a person's sexual organs or anal region or exposing the breasts of a female person; or
(d) any activity in relation to child pornography, as that term is defined in the Criminal Code (Canada). (« activité sexuelle »)
"specified person" includes a person who is a member of a group of persons specified in a protection order. (« personne désignée »)
"subject" means a person who it is alleged was the subject of child sexual exploitation or human trafficking in an application for a protection order. (« victime »)
"telecommunication" includes the use of a telephone, e-mail or the facsimile transmission of a document. (« télécommunication »)
Elements of child sexual exploitation
A person engages in child sexual exploitation when
(a) he or she uses force, the threat of force, intimidation or the abuse of power or a position of trust in order to cause or compel a child to engage in sexual conduct; or
(b) he or she provides a child with a controlled substance in exchange for sexual conduct by or with the child.
A person engages in human trafficking when
(a) he or she
(i) abducts, recruits, transports or harbours a person, or
(ii) exercises control, direction or influence over the movements of a person; and
(b) he or she uses force, the threat of force, fraud, deception, intimidation, the abuse of power or a position of trust or the repeated provision of a controlled substance, in order to cause, compel or induce that person
(i) to become involved in prostitution or any other form of sexual exploitation,
(ii) to provide forced labour or services, or
(iii) to have an organ or tissue removed.
A judicial justice of the peace may hear and determine applications for protection orders.
An application for a protection order may be commenced
(a) by the subject, if the subject is 18 years of age or over; or
(b) if the subject is under 18 years of age,
(i) by the subject's parent or guardian,
(ii) if the subject is in the care of a child and family services agency mandated under The Child and Family Services Act, by that agency, the child and family services authority responsible for that agency or the Director of Child and Family Services, or
(iii) by a person designated in writing by the minister for this purpose.
An application for a protection order may be made without notice to the respondent in the manner prescribed by regulation.
How an application may be submitted
An application for a protection order may be submitted
(a) in person, by the applicant; or
(b) in person or by telecommunication, by a lawyer, a peace officer or a person designated in writing by the minister for this purpose, with the applicant's consent.
Evidence adduced in support of an application for a protection order must be given under oath.
Telecommunication of documents
A person submitting an application for a protection order by telecommunication must
(a) possess any document that is to be used in support of the application at the time the application is made;
(b) communicate the content of the document to the judicial justice of the peace in a manner satisfactory to the justice; and
(c) transmit the document to the judicial justice of the peace as soon as practicable in the manner prescribed by regulation.
Evidence received by telephone
A judicial justice of the peace may administer an oath to a person and receive the person's evidence by telephone if the oath and evidence are recorded verbatim.
J.J.P. not to wait for transmission
A judicial justice of the peace who hears an application for a protection order need not wait for the transmission of a document under clause (1)(c) before deciding whether to make a protection order.
Effect of order based on telecommunication
A protection order based on an application submitted by telecommunication has the same effect as a protection order based on an application submitted in person.
Considerations re exchange of controlled substance
When determining whether a controlled substance was provided in exchange for sexual conduct for the purpose of clause 1(2)(b), a judicial justice of the peace must take into consideration the nature of the relationship between the respondent and the subject, including
(a) the age of the subject;
(b) the age difference between the respondent and the subject;
(c) the circumstances in which the controlled substance was provided to the subject; and
(d) any particular vulnerabilities of the subject.
A judicial justice of the peace may make a protection order without notice to the respondent if the justice determines, on a balance of probabilities, that
(a) the respondent engaged in child sexual exploitation or human trafficking of the subject;
(b) there are reasonable grounds to believe that the respondent will continue to engage in child sexual exploitation or human trafficking of the subject or will engage in child sexual exploitation or human trafficking of the subject in the future; and
(c) the subject is in need of immediate or imminent protection from the respondent.
A protection order may include any of the following provisions that the judicial justice of the peace considers necessary or advisable for the protection of the subject:
(a) a provision prohibiting the respondent from following the subject or a specified person from place to place;
(b) a provision prohibiting the respondent from, directly or indirectly, communicating with or contacting the subject or a specified person;
(c) a provision prohibiting the respondent from attending at or near, or entering, any place that the subject or a specified person attends regularly, which may include a place where the subject or person resides, works or carries on business;
(d) as an exception to a protection order under either clause (b) or (c), a provision that permits the respondent to attend, where the subject is present, any court proceeding in which the respondent is a party or an accused person;
(e) a provision requiring the respondent to return specified personal effects or personal documents of the subject, such as a passport, driver's licence or other forms of identification, in the manner specified in the order.
Additional provisions restricting respondent
An order under clause (1)(d) must include a provision requiring the respondent to do the following while attending a court proceeding referred to in that clause:
(a) remain at least two metres away from the subject at all times;
(b) refrain from communicating with the subject, except in the presence and with the approval of the judge, master or other officer of the court in a court proceeding;
(c) not remain in any location where the respondent would be alone with the subject.
Despite subsection (2), the presiding judge or master in a court proceeding where both the respondent and subject are present may make a different order restricting the respondent's conduct as the presiding judge or master considers appropriate.
Protection order expires in 3 years
Subject to subsection (5), a protection order expires three years after the date it is made.
A judicial justice of the peace may make a protection order that applies for a period longer than three years if he or she is satisfied that a longer time period is necessary for the protection of the subject.
The protection order must set out the date it expires.
A judicial justice of the peace who makes a protection order must immediately arrange for the preparation of a written copy of it.
The judicial justice of the peace must immediately forward a copy of the protection order and each document submitted in support of the application to the nearest judicial centre of the court.
Enforcement of protection order filed in Q.B.
The protection order and any document forwarded under subsection (2) must be filed in the court, and when the order is filed it becomes an order of the court and is enforceable as such.
Service of protection order on respondent
A protection order must be served on the respondent in the manner prescribed by regulation.
A respondent is not bound by a protection order until he or she is served with the order.
When the subject is under 18 years of age, the subject must be served with the order if he or she is at least 12 years old.
Application to set aside order
A respondent against whom a protection order is made may apply to the court within 20 days after being served with the order, or such further time as the court may allow, to have the order set aside or varied.
Application does not stay order
A protection order is not stayed by an application under this section.
Use of evidence from application for order
The evidence that was before the judicial justice of the peace in the application for a protection order is to be considered as evidence at the hearing, and the applicant may present additional evidence.
At a hearing, the onus is on the respondent to demonstrate, on a balance of probabilities, that the protection order should be set aside or varied in the manner sought by the respondent.
The judge hearing the application may confirm, vary or set aside the order.
The respondent or the applicant may appeal a decision made under section 10 on a question of law or jurisdiction, within 30 days after the decision is made or within such further time as a judge of the Court of Appeal may allow.
An appeal does not operate as a stay of proceedings, and the order under appeal may be enforced as though no appeal were pending unless a judge of the Court of Queen's Bench or the Court of Appeal otherwise orders.
Court may vary or revoke order
The court, on application at any time after a protection order is filed in the court may, if satisfied that it is fit and just to do so,
(a) delete or vary any term or condition in the order, or add terms and conditions; or
(b) revoke the order.
Adjournment to allow subject to obtain advice
If the judge hearing the application is advised that there is an agreement that the protection order should be varied or revoked, but the judge is not satisfied that the agreement is free and voluntary, he or she may adjourn the hearing to allow legal or other advice to be obtained.
An application for a new protection order may be made in accordance with section 3 when
(a) a protection order has expired or will expire within the next three months; and
(b) a person believes that there is a continuing need for a protection order.
Compliance with protection order
The respondent's compliance with a protection order does not by itself mean that there is not a continuing need for a protection order.
Ban on identification of party or witness
No person shall publish or broadcast the name of the subject, the respondent or a witness in a proceeding relating to an application for a protection order or any information likely to identify any of those persons, until
(a) the application is dismissed;
(b) 20 days after the respondent is served with the protection order, if no application to set aside the order is made under section 10 within that 20-day period; or
(c) if an application to set aside the protection order is made under section 10, on the latest of the following:
(i) the application is abandoned or dismissed for delay,
(ii) the deadline for commencing an appeal of the decision made on the application has expired,
(iii) if an appeal of the decision made under section 10 is commenced, when a final decision on the appeal is made or the appeal in abandoned or dismissed for delay.
When the subject, the respondent or a witness in a proceeding relating to an application for a protection order is under 18 years of age, no person shall publish or broadcast the name of that person, or any information likely to identify that person.
Certain information to be kept confidential
No person shall disclose to another person any information in a court document or record relating to an application for a protection order that identifies or is liable to identify the home or business address of a subject, unless the disclosure is for a purpose related to enforcement of the order.
Court may ban publication of information
On the request of a party to a proceeding relating to a protection order or a witness, the court may make an order prohibiting the publication or broadcast of the name of a party, the subject or a witness, or any information likely to identify any of those persons, if the court is satisfied that the publication or broadcast could endanger the safety or well being of the person in question.
A person who contravenes section 14 or 15 or an order made under section 16 is guilty of an offence and is liable on summary conviction
(a) in the case of an individual, to a fine of not more than $5,000 or imprisonment for a term of not more than two years, or both; and
(b) in the case of a corporation, to a fine of not more than $50,000.
Corporate officers and directors
An officer, director, employee or agent of a corporation who directs, authorizes, assents to, permits or participates or acquiesces in the contravention of an order under subsection (1) may be convicted of the offence, whether or not the corporation has been prosecuted or convicted.
TORT OF HUMAN TRAFFICKING
A person who engages in human trafficking of a person commits a tort against that person.
Action without proof of damage
An action for human trafficking may be brought without proof of damage.
In an action for human trafficking, it is no defence that the plaintiff consented to any of the conduct in question.
In an action for human trafficking, the court may
(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;
(b) order the defendant to account to the plaintiff for any profits that have accrued to the defendant as the result of the human trafficking of the plaintiff;
(c) issue an injunction on such terms and with such conditions as the court determines appropriate in the circumstances; and
(d) make any other order that the court considers just and reasonable in the circumstances.
In awarding damages in an action for human trafficking, the court must have regard to all of the circumstances of the case, including
(a) any particular vulnerabilities of the plaintiff;
(b) all aspects of the conduct of the defendant; and
(c) the nature of any existing relationship between the plaintiff and the defendant.
Accounting not considered in awarding damages
In awarding damages in an action for human trafficking, the court must not have regard to any order made under clause (1)(b).
When assessing damages or compensation in an action for human trafficking that is the subject of another action or proceeding, the court must have regard to any damages or compensation awarded in the other action or proceeding in respect of the same behaviour.
A right of action or a remedy under this Act is in addition to, and does not affect, any other right of action or remedy available to a person under another Act.
The Lieutenant Governor in Council may make regulations
(a) respecting the procedures to be followed for making application and for hearing applications for protection orders, including the transmission of applications for protection orders;
(b) respecting forms, including information to be contained on the form of protection orders;
(c) respecting the forwarding of protection orders and other documents to the court by judicial justices of the peace;
(d) for the purpose of section 10, respecting the procedures to be followed for making application to set aside protection orders and for hearing those applications;
(e) respecting the form and manner of serving notices and other documents required to be served or given under this Act, including substitutional service and a rebuttable presumption of service;
(f) defining a word or expression used and not defined in this Act;
(g) enlarging or restricting the meaning of a word or expression used in this Act;
(h) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.
This Act may be referred to as chapter C94 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.