A DEFINITION OF TRAFFICKING

A definition of trafficking in persons was arrived at in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter the Protocol), which supplements the United Nations Convention Against Transnational Organized Crime. Article 3 of the Protocol defines trafficking in persons as:

[t]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

The Committee supports the definition contained in the Protocol. However, the Committee considers that definition to be weakened by its lack of clarity with respect to what constitutes sexual exploitation. For that reason, the Committee wishes to clarify that prostitution and pornography are forms of sexual exploitation, wherever they occur — on the street, in massage parlours, modelling agencies, etc., or through escort agencies.

In November 2005, amendments to the Criminal Code created specific offences relating to trafficking in persons. These amendments do not define trafficking per se; rather, they establish that the recruitment, transporting, transferring, receipt, holding, concealment or harbouring of a person, or the exercise of control, direction or influence over the movements of a person for the purpose of exploiting them or facilitating their exploitation, is an indictable offence.¹Subsection 279.01(2) specifies that one cannot consent to the activities described, which clearly indicates that all persons who have been trafficked are victims, regardless of whether or not they actually consented or thought that they had consented to any of the activities. With respect to what is considered to be exploitation under these provisions, section 279.04 states that a person is considered to be exploiting another person if they

(a) cause them 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; or

(b) cause them, 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.²

The other definition of trafficking found in Canadian legislation is that contained in the Immigration and Refugee Protection Act (IRPA). Because the IRPA relates specifically to immigration, it is understandable that the key difference between the IRPA approach to trafficking and the Criminal Code articulation is that IRPA applies to persons who have organized the coming into Canada of persons, while the Criminal Code can be used to address situations of trafficking within Canada, which is often referred to as domestic trafficking. IRPA defines trafficking in persons as “knowingly organiz[ing] the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion”. “Organize” includes the recruitment or transportation and, after entry into Canada, the receipt or harbouring of persons.³

In order to combat trafficking in persons, one needs to have a clear idea of what trafficking is and what it is not. Therein lies part of the problem in addressing the trafficking phenomenon: despite the articulation of a United Nations definition of trafficking, there continues to be disagreement as to the elements that must be present in order for a particular situation to be considered as trafficking in persons. This was confirmed by a number of witnesses, including Professor Leslie Jeffrey who noted that, while trafficking in persons is generally seen as the use of force or deceit to transport and/or recruit people for exploitative work or service, it is hard to agree on what constitutes force and what constitutes exploitation.

The lack of consensus as to what constitutes force and exploitation was clearly conveyed through witness testimony. The vast majority of witnesses who testified before our committee saw prostitution as a form of violence in and of itself, and noted that prostitution cannot be distinguished from trafficking in persons. A few witnesses noted that, while there were links between prostitution and trafficking, not all instances of prostitution could be classified as trafficking. Carole Morency, Senior Counsel in the Criminal Law Policy Section at the Department of Justice, stated:

[T]he difference between prostitution and trafficking is that [with trafficking] it’s not a question of consent; it’s irrelevant. The person is being forced to provide their services, whether it’s sexual or other labour, for an exploitative purpose, and they fear for their own safety or that of someone in their family if they don’t provide those services. That’s the distinction from prostitution. Prostitution is not illegal in Canada currently…⁴

Like the majority of witnesses appearing before us, we came to the conclusion that prostitution is closely linked to trafficking in persons. We believe that prostitution is a form of violence and a violation of human rights. The Committee feels that the prostitute’s consent is irrelevant, because you can never consent to sexual exploitation.

OVERVIEW OF CANADA’S EFFORTS TO COMBAT TRAFFICKING

One of Canada’s first initiatives in the area of trafficking was the establishment of the federal Interdepartmental Working Group on Trafficking in Persons (IWG) in 1999. This working group was established to coordinate Canada’s negotiating position on the text of the United Nations protocols relating to trafficking and smuggling.⁵ In May 2002, Canada ratified these two protocols (the Protocol; and the Protocol against the Smuggling of Migrants by Land, Sea and Air) along with their parent convention, the United Nations Convention against Transnational Organized Crime. These protocols established new legal and judicial means to prevent and counter illegal migration and trafficking in persons by fostering the sharing of information and cooperation between states. The Protocol on trafficking in persons in particular provides greater protection and support to the victims of trafficking. One of its primary objectives is to maintain a good balance between law enforcement and the protection of victims.

In addition to ratifying these international instruments, Canada has created legislative provisions that specifically address trafficking in persons. These provisions were in addition to the more general provisions of the Criminal Code and the former Immigration Act, which indirectly addressed trafficking in persons through provisions relating to organizing illegal entry, disembarking persons at sea, abduction, extortion, confinement, conspiracy, forgery or use of false documentation and offences relating to prostitution and organized crime.

The first legislative measures were part of the Immigration and Refugee Protection Act (IRPA), which was enacted in 2002.⁶ This Act introduced a new section that specifically criminalized trafficking in persons. Section 118 prohibits deliberately
organizing the entry into Canada of one or more persons through the use of force, threats, fraud, deception or any other form of coercion. Any person found guilty under this section is subject to life imprisonment and/or a fine of up to one million dollars.

In February 2004, the IWG received a new mandate to coordinate and improve the federal government’s efforts to counter trafficking in persons and to develop a federal strategy. The IWG studies federal legislation, policies and programs that impact trafficking in persons with a view to identifying best practices and areas for further improvement. The IWG is co-chaired by the departments of Justice and Foreign Affairs. The partners in the IWG are:

• Canada Border Services Agency (CBSA);



• Canadian Heritage (PCH);



• Canadian International Development Agency (CIDA);



• Canadian Security Intelligence Service (CSIS); and



• Citizenship and Immigration Canada (CIC);



• Foreign Affairs Canada (FAC);



• Health Canada (HC);



• Human Resources and Social Development Canada (HRSDC);



• Indian and Northern Affairs Canada (INAC);



• Justice Canada;



• Passport Office;



• Privy Council Office (PCO);



• Public Safety and Emergency Preparedness Canada (PSEPC);



• Royal Canadian Mounted Police (RCMP);



• Statistics Canada; and



• Status of Women Canada (SWC).

Various other measures were implemented by the federal government in 2004 to improve Canada’s approach to counter trafficking in persons. They include:

• the development of a website on trafficking in persons which provides information and links to related topics (Department of Justice);



• the design of an anti-trafficking brochure (in 14 languages) and poster (in 17 languages), which is distributed to Canadian missions and
  non-governmental organizations abroad and in Canada;



• holding a regional round table in Vancouver, organized jointly by the Attorney General of British Columbia and Public Safety and Emergency Preparedness Canada (National Crime Prevention Centre), which brought together public servants, academics and members of civil society to discuss research and develop best practices relating to prevention and awareness (November 2004);



• holding a training seminar on trafficking in persons for police officers, prosecutors and immigration, customs and consular officials, which was organized jointly by the Department of Justice and the International Organization for Migration (March 2004); and



• holding a public consultation session on trafficking in persons which was organized by the Canadian Ethnocultural Council, the Department of Justice and the Minister of State (Status of Women) to inform the public and increase awareness of victims of trafficking in persons, especially young people, children and women, and to examine strategies to establish community initiatives to prevent and counter this serious problem (March 2004).⁷

In September 2005, the RCMP created the Human Trafficking National Coordination Centre, staffed by two RCMP officers and one analyst. As part of the Immigration Section, this centre was mandated to provide assistance to field investigators and to work on education and awareness campaigns.

On 25 November 2005, following the coming into force of Bill C-49⁸ three new offences specifically prohibiting trafficking in persons were added to the Criminal Code. The main offence (subsection 279.01(1)) prohibits the recruitment, transportation, harbouring or transfer of a person for the purpose of exploitation or to facilitate their exploitation, and carries a maximum sentence of life in prison where it involves abduction, sexual assault, aggravated assault or leads to the victim’s death. In all other cases, it carries a maximum sentence of 14 years’ imprisonment. The second offence (section 279.02) prohibits persons from knowingly benefiting from trafficking in persons, either financially or otherwise. Any person found guilty under this section is subject to 10 years’ imprisonment. Finally, the third offence carries a maximum sentence of five years’ imprisonment for anyone destroying records to facilitate trafficking in persons.

Bill C-49 amendments also authorize the interception of private communications and the taking of biological samples for DNA analysis in cases of trafficking in persons. With the enactment of this bill, victims of trafficking can now seek restitution for the bodily harm or psychological damage suffered.

The Honourable Monte Solberg, Minister of Citizenship and Immigration, announced on 11 May 2006 a new policy authorizing the granting of temporary resident permits to trafficking victims. Within the current legislative framework, immigration officers may now issue temporary resident permits to trafficking victims for up to 120 days.

While the Committee recognizes the Canadian effort to counter trafficking in persons, our study indicates significant gaps. The following chapters address the issues brought to our attention during our study.

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