Beyond criminal justice: a case study of responding to human trafficking in Canada.

• Date: 01 January 2014
• Author: Kaye, Julie

Human trafficking--what some refer to as 'modern-day slavery' (Kara 2009)--has been described as the second most profitable organized criminal activity in the world. (2) While evidence to support this and other claims about the prevalence of human trafficking remains controversial (see Barrett 2011; Jordan and Burke 2011), trafficking has received significant attention from academics, policy makers, and advocates, both internationally (e.g., Kempadoo 2005; Shelley 2010; Lee 2011) and in Canada (see, e.g., Bruckert and Parent 2002; Oxman-Martinez, Lacroix, and Hanley 2005; Ogrodnik 2010; Perrin 2010a). Yet there is still little consensus about the nature, extent, or definition of human trafficking, which at various times has been understood as, and often conflated with, prostitution, labour exploitation, irregular migration, and transnational crime (Sanghera 2005). Since the adoption of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children in 2000 (Palermo Protocol), international definitions of human trafficking emphasize human trafficking as a form of transnational crime, resulting in counter-trafficking initiatives that focus on restrictive border controls and immigration policies (e.g., Jordan 2002; Kempadoo 2005; Lee 2011). (3) However, such anti-trafficking responses have struggled to successfully prosecute perpetrators as well as protect the rights of trafficked persons (Dottridge 2007; Lee 2011; Milivojevic and Segrave 2012).

The fundamental rights afforded to all human beings outlined in the United Nations Universal Declaration of Human Rights offer some protection to trafficked persons, such as the right to freedom from slavery and servitude, freedom of movement, and freedom from inhuman or degrading treatment (see Lee 2011). Through this declaration and that of the Council of Europe Convention on Action against Trafficking in Human Beings, human trafficking has been seen as a violation of human rights. Nonetheless, mandatory provisions to protect and assist individuals victimized by human trafficking were absent from the Palermo Protocol (Jordan 2002). Thus, building on the international definition, Canada ratified the protocol by establishing crime-focused response mechanisms (e.g., enhanced border security, immigration controls, and initiatives driven by law enforcement), yet paid limited attention to the development of provisions to address the rights and experiences of trafficked persons.

In Canada, there is a widespread belief that both internal and international forms of human trafficking are occurring within and across Canadian borders (Bruckert and Parent 2002; Oxman-Martinez, Lacroix, and Hanley 2005; Perrin 2010a). (4) Yet, from a criminal justice standpoint, there have only been a handful of successful charges laid and fewer convictions since the inclusion of human trafficking legislation in the Criminal Code in 2005 (Government of Canada 2012). Yet, in spite of a legally untested definition and a limited number of criminal cases, law enforcement and criminal justice actors have largely shaped discussions of human trafficking and responses to trafficking in Canada (RCMP 2010). (5) In a context where the law remains relatively untested, yet the response emphasizes criminal justice approaches, the actual experiences of trafficked persons remain unclear and poorly defined.

To help clarify understandings of human trafficking within a localized context, this article explores the patterns and trends of human trafficking in Calgary, Alberta, and specifically examines how front line workers perceive human trafficking and the existing counter-trafficking response. Calgary offers a unique context to examine human trafficking responses, given the municipal interdisciplinary network established by the Action Coalition on Human Trafficking (ACT) Alberta. (6)

This article comprises five main sections. The first section briefly engages with the literature on human trafficking and responses to trafficking in Canada. The second section outlines the methodology underlying our findings. The third and fourth sections highlight some of our key findings, including the identified patterns and trends and the problem of overreliance on criminal justice response models. In the final section, we offer recommendations for responding to human trafficking in Canadian cities and present a prospective research agenda for future analysis.

Human trafficking and responses to trafficking in Canada

Canada is known as a source, transit, and destination country for human trafficking (Bruckert and Parent 2002; Perrin 2010a; Government of Canada 2012; US Department of State 2012; RCMP 2012) where men, women, and children are trafficked for the purpose of sexual exploitation (7) and/or forced labour. To identify the national trends of human trafficking, the RCMP released the findings of a threat assessment that examined cases and intelligence between 2005 and 2009 (RCMP 2010). In particular, the assessment found that, while men, women, and children are trafficked in Canada, women represent the majority of identified trafficked persons and are trafficked primarily for the purpose of sexual exploitation. (8) However, more recently, cases involving trafficking for the purpose of forced labour are being detected (see, e.g., Government of Canada 2012; "How Hungarian criminals" 2012; "Human trafficking affects foreign workers" 2012). As of December 2012, charges of labour trafficking have been laid in Alberta, Ontario, and British Columbia and have involved the exploitation of male and female foreign nationals (Government of Canada 2012). (9) In these cases, police have faced significant barriers to obtaining cooperation from victimized individuals, especially since the individual often faces real and perceived risks of job loss and/or deportation if he or she cooperates (Faraday 2012). Moreover, it is suspected that forced labour cases have gone undetected because they can occur through the fraudulent use of legal entry points into Canada (e.g., R v Domotor et al.). (10)

According to the National Action Plan to Combat Human Trafficking, socially and economically disadvantaged persons--especially some First Nations women, youth, and children, as well as migrants and new immigrants, street-involved youth, children in protective services, and new arrivals to large urban centers--are considered "at risk" of being trafficked (Government of Canada 2012). Some evidence suggests that First Nations women are specifically targeted for trafficking for purposes of sexual exploitation (see Bruckert and Parent 2002; Oxman-Martinez, Lacroix, and Hanley 2005), including trafficking by gangs (see Sikka 2009) and exploitation during the migratory movements from First Nations reserves to cities in search of education, employment, or other opportunities depicted in media portrayals and anecdotal descriptions of city life (Sethi 2007; Oxman-Martinez, Lacroix, and Hanley 2005). In these and other cases, socio-economic marginalization increases vulnerability to human trafficking (see Quayson and Arhin 2012).

Canada was among the first countries to ratify the Palermo Protocol by enacting two pieces of anti-trafficking legislation. The first is section 118 of the Immigration and Refugee Protection Act (IRPA). (11) This section only covers international human trafficking, referring specifically to cases that involved crossing the border into Canada.

In 2005, section 279.01 was incorporated into the Canadian Criminal Code. (12) In addition, section 279.011 criminalizes the trafficking of a person under the age of 18 years. Further, sections 279.02 and 279.03 criminalize the material benefit gained from trafficking in persons and withholding or destroying documents for the purpose of human trafficking. Finally, section 279.04 defines the concept of exploitation in human trafficking cases. (13) However, the definition of exploitation has proved problematic for obtaining human trafficking convictions. (14) The onus has been on the individual victimized by trafficking to demonstrate their belief that their safety was threatened. However, trafficked persons do not always wish or are not always able to cooperate with official agencies, given the potential consequences of giving evidence against a trafficker (e.g., possible job loss, deportation, threats against family members, etc.). In this way, the very nature of the human trafficking abuse (e.g., deception or coercion) can create challenges that prevent trafficked people from considering themselves as victims of crime. In these instances, respect for autonomy can be violated by responses that link "victim" cooperation to service provision or prioritize the prosecution of perpetrators above the rights of trafficked persons.

Despite the adoption of legal mechanisms, Canada has faced major challenges when prosecuting human traffickers. As of April 2012, there have been 25 human trafficking convictions under the Criminal Code, representing 41 trafficked persons (Government of Canada 2012). (15) In addition to charges under the Criminal Code, three charges have been laid under section 118 of the IRPA, including one charge in Alberta.

In response to significant gaps in the protection of trafficked persons in Canada, in May 2006, Citizenship and Immigration Canada (CIC) adopted a policy to enable trafficked persons to secure immigration status by providing a Temporary Resident Permit (TRP). (16) Initially for up to 180 days, TRPs offer legal immigration status to international trafficked persons identified in Canada and can be extended at the discretion of CIC (Citizenship and Immigration Canada 2009). During this time, trafficked persons can obtain access to health care and other services (such as trauma counselling and work permits). While CIC considers whether the person can assist law enforcement in criminal proceedings, the policy clearly...