02 Jul, 2020
Canadian Implementation of the UN Trafficking Protocol: Promoting or Eroding Access to Equity and Justice?
Hayli Millar and Tamara O’Doherty
Twenty years after its adoption, and while lauded by some, there continue to be many critiques of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (‘Trafficking Protocol’ or ‘Protocol’) given its preferencing of criminalization over human rights, its definitional inclusion of the phrasing “exploitation of the prostitution of others” that seems to invite the conflation of trafficking and sex work, and its adverse consequences of increased crime control and tightened border controls for already racialized and marginalized communities. In view of current global events, we think it imperative to reflect on the effects of the Trafficking Protocol, especially at the national level. We therefore ask: do Canada’s anti-trafficking laws offer protection, and if so, to whom? Do anti-trafficking laws reduce or reproduce existing inequities and injustices? Unfortunately, these questions are not easily answered. We lack accurate and reliable data about the actual nature and extent of human trafficking. And, there are few metrics to gauge the impacts of anti-trafficking interventions. Even so, the available empirical evidence—produced mainly by academics and non-government organizations—suggests a cautionary tale.
Equally concerning, since enacting the criminal trafficking offence in 2005, Canada has legislatively conflated trafficking in persons with “prostitution” and the commodification of sexual services by deliberately importing phrasing and elements from these other offences. Subsequent amendments have amplified this legislative conflation, with several alarming consequences:
- There is a net widening effect: the criminal trafficking offence is overwhelmingly used to police domestic commercial sex work, especially cases involving procuring (pimping and living on the avails) and the commercial sexual exploitation of female persons under the age of eighteen years. This legislative expansionism and the convergence of criminal and immigration laws and their enforcement (so-called “crimmigration”) to regulate commercial sex work are reinforced and augmented by a variety of other laws (family laws, municipal bylaws, residential tenancy laws, and taxation laws) that are also being used to punitively regulate those who work in the commercial sex sector. Legislative expansionism is accompanied by increased surveillance of “at-risk” communities through preventive policing—especially police enforcement-based and protectionist undercover sting operations and workplace “raid and rescue” campaigns. There is questionable empirical evidence about the effectiveness of these campaigns and frequently adverse consequences for those subject to intensified legal intervention. Crucially, this legislative conflation and expansionism serves to invisibilize the many other forms of exploitation and trafficking, including same-sex and gender non-binary sex trafficking, and a range of other labour and human rights violations that occur in other (especially precarious) labour sectors. Also, in view of the presumed primary intent of the Protocol, which is tied to a parent convention to prevent and suppress transnational and organized crime by encouraging international legal cooperation, it remains concerning that Canada has prosecuted so few transnational cases or cases involving organized crime.
- Legislative conflation has produced the judicial conflation of case precedents where so-called “pimping” or “pimping plus” offences are viewed as interdependent and indivisible, not only in interpreting elements of the trafficking offence but also in sentencing. Troublingly, the legal framework has reproduced the application of outdated stereotypes about commercial sex work despite an emerging body of case law and government inquiry evidence challenging the problematic use of discredited yet pervasive and deeply harmful sexist, racist and misogynistic myths and stereotypes about sexualized violence in the criminal law, especially in relation to Indigenous women and sex workers.
- Legislative amendments, including those through the Protection of Communities and Exploited Person Act, have increased the penality of anti-trafficking laws. This includes the 2010 and 2014 introduction of highly contentious mandatory minimum sentences that are argued to perpetuate to systemic racism. These mandatory minimum sentences have now been successfully challenged in several trafficking (and commodification) cases as violating a defendant’s right not to be subjected to cruel and unusual punishment (contrary to s. 12 of the Charter).
- There is now a troubling prospect for over-charging and multiple convictions for essentially the same offence given the significant overlap between the phrasing and key elements of some of the new commodification offences—especially procuring and financially or materially benefiting from sexual services—and the criminal trafficking in persons offences. When the accused are dually charged for trafficking and procuring or for materially benefitting, it raises potential legal questions about res judicata (double jeopardy) and being punished twice for what is essentially the same offence, potentially contravening various laws and legal principles.
There are mounting questions about the effectiveness of the UN Protocol elsewhere, too. Globally, few trafficking victims have been identified and some identified victims have been forcibly detained by government and non-government authorities, including as material witnesses. Other victims have been afforded temporary or permanent residence only when willing to cooperate with authorities in legal proceedings. And, some victims have been criminally prosecuted and/or deported back to their country of origin without adequate consideration for their rights, safety, or wellbeing. In addition, there is limited evidence to suggest that trafficking victims are being afforded their right to an effective remedy, including reparations. Moreover, international legal scholars have noted significant political pressure to prosecute, resulting in violations of the rights of criminal suspects, including wrongful prosecutions, unfair trials, and inappropriate sentencing.
Many of these concerns apply to Canada, as we document in our report, including that very few persons have been prosecuted for trafficking and less than half of those prosecuted are convicted of human trafficking. Of particular concern, the available empirical evidence suggests that Canadian anti-traﬃcking laws are being enforced and publicized along racialized, gendered, and sensationalistic lines in a context of over-surveilling some populations while under-protecting other groups (particularly Indigenous, Black and other People of Colour, im/migrants, same-sex and gender non-binary sex workers). All of this points to a troubling trend towards increasing barriers to justice for migrant communities and sex workers based on carceral protectionism. These patterns also lay bare the intersecting effects of crimmigration, the stigmatization of commercial sex, and inequality in labour rights.
For Canada, these legislative and enforcement patterns provoke vexed legal questions about the arbitrariness of the law and its enforcement. When combined with an examination of the deeply harmful ways that the judicial discourse sustains a false unidimensional narrative about consent, racist and gendered depictions of deserving and undeserving victims, and harmful stereotypes about sex workers and third parties, it is clear that these practices need to change. Accordingly, we suggest the following immediate actions for Canadian legislators and policymakers:
- Prioritizing independent assessment of the criminal trafficking law—in its creation, its enforcement, and its application— with a particular focus on its intended and unintended consequences, especially for Black, Indigenous and People of Colour, gender and sexual minorities, and im/migrants who work in commercial sex.
- Adopting an evidence-informed and rights-based approach to regulating commercial sex work.
- Addressing differential access to rights and remedies, including restitution, for victims of human trafficking or other violence, especially the starkly different access to justice experienced by Black, Indigenous and People of Colour, gender and sexual minorities, and im/migrants. Canada should take immediate steps to fully implement the recommendations of international bodies and multiple government commissions of inquiry, especially those on violence in policing, systemic racism in the criminal justice system, truth and reconciliation, and missing and murdered Indigenous women and girls.
- Beginning the more complex work of addressing the root structural causes of exploitation and inequity, including prioritizing action on labour exploitation and the exploitation of migrant workers vis-a-viz internationally recognized concepts of coerced, forced, and unfree labour.
In the context of the COVID 19 pandemic and the Black Lives Matter global movement exposing longstanding and deeply embedded systemic racial inequities in Canada and other countries, we are at a pivotal moment to carefully review and fundamentally reconsider how in complying with international treaties our criminal laws may sustain the enforcement of injustices. To ensure lived equality and justice for all persons in Canada, it is imperative to establish trust between the criminal justice system and the many communities it serves.
 See, especially, R v Barton 2019 SCC 33; National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming power and place: The final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. (Government of Canada, 2019), online: Government of Canada https://www.mmiwg-ffada.ca/final-report/.
 Especially s. 12 of the Criminal Code and s. 11(h) of the Charter; R v Kienapple  1 SCR 729.
 See, e.g., Anne T. Gallagher, “Editorial: the problems and prospects of trafﬁcking prosecutions: Ending impunity and securing justice” (2016) 6:1 Anti-Trafﬁcking Review 1, DOI: <10.14197/atr.20121661>.
 Jennifer Musto, Control and protect: Collaboration, carceral protection, and domestic sex trafficking in the United States, (Berkeley and Los Angeles: University of California Press, 2016).
 Kendra Strauss, “Coerced, forced and unfree labour: Geographies of exploitation in contemporary labour markets” (2012) 6:3 Geography Compass 137.
Julie Kaye, Hayli Millar & Tamara O’Doherty, “Exploring human rights in the context of enforcement-based anti-trafficking in persons responses” in John Winterdyk and Jackie Jones (eds.) The Palgrave International Handbook of Human Trafficking, (Palgrave International, 2019)
Hayli Millar & Tamara O’Doherty, Canadian human trafficking prosecutions and principles of fundamental justice: A contradiction in terms? (International Centre for Criminal Law Reform and Criminal Justice Policy, 2020). Online: ICCLR <https://icclr.org/wp-content/uploads/2020/06/Millar-and-ODoherty-Technical-Report-on-Canadian-Human-Trafficking-Prosecutions-1.pdf?x37853>
Hayli Millar & Tamara O’Doherty, “Racialized, gendered, and sensationalized: An examination of Canadian anti-trafficking laws, their enforcement, and their (re)presentation” (2020). 35:1 Canadian Journal of Law and Society 23, DOI: <10.1017/cls.2020.2>
Hayli Millar & Tamara O’Doherty (in collaboration with the SWAN Vancouver Society), Key findings: The Palermo Protocol & Canada: The evolution and human rights impacts of antitrafficking laws in Canada (2002–2015), (International Centre for Criminal Law Reform and Criminal Justice Policy, 2015). Online: ICCLR <https://icclr.org/wp-content/uploads/2019/06/Palermo-Project-Key-Findings-Report-15-October-2015-with-copyright-2.pdf?x37853>
Elya M. Durisin, Emily van der Meulen, & Chris Bruckert (eds.). Red Light Labour: Sex work regulation, agency, and resistance (Vancouver: UBC Press, 2018).
Sarah Hunt, “Representing colonial violence: Trafficking, sex work, and the violence of law” (2015) 317:1 Atlantis 25.
Julie Kaye, Responding to Human Trafficking: Dispossession, colonial violence, and resistance among Indigenous and racialized women. (Toronto: University of Toronto Press, 2017).
Kamala Kempadoo, Nicole McFadyen, Phillip Pilon, Andrea Sterling, & Alex Mackenzie, Challenging trafﬁcking in Canada: Policy brief (Centre for Feminist Research, York University, 2017). Online: Centre for Feminist Research <https://cfr.info.yorku.ca/challenging-trafficking-in-canada-policy-brief/>
Elene Lam, “Inspection, policing and racism: How municipal by-laws endanger the lives of Chinese sex workers in Toronto” (2016) 75 Canadian Review of Social Policy 87.
Kimberly Mackenzie & Alison Clancey, Im/Migrant sex workers, myths & misconceptions: Realities of the anti-trafficked, 2nd Edition (SWAN Vancouver, 2020). Online: SWAN <https://3ef32e5e-964e-4a01-a2dc-2292a5000739.filesusr.com/ugd/3a120f_8cf163d66eb345d385b254eb91d72cd2.pdf>;
Robyn Maynard, “Fighting wrongs with wrongs? How Canadian anti-trafficking crusades have failed sex workers, migrants, and Indigenous communities.” (2016) 37:2 Atlantis 40.
Photo by Kyle Glenn on Unsplash.