As in other nations, the age of sex-trafficking victims in Canada appears to be decreasing. Without solid numbers it is difficult to know whether this trend is perception or reality, but there has been enough of a change to attract the attention of the Criminal Intelligence Service Canada (CISC). “Across the country, organized crime networks are actively trafficking Canadian-born women and underage girls inter- and intra-provincially, and in some instances to the United States, destined for the sex trade,” the CISC stated in an August 2008 strategic intelligence brief (CISC, 2008).
In order to determine the scope and nature of the internal trafficking of children, the RCMP conducted 175 interviews with police and service agencies in Vancouver, Prince George, Kamloops/Kelowna, Calgary, Edmonton, Prince Albert, Fort McMurray, Regina, Winnipeg, the Greater Toronto Area, Ottawa, Montreal, Fredericton/Marysville, St. John’s, Moncton, St. John, Halifax, and Gander. The report indicates that some populations of children are at particular risk of sexual exploitation, including vulnerability to sex trafficking. Among them are runaways, unwanted children, youths living independently (when they reach 16 years of age), and children who use the Internet to solicit sex-trade clients. In some cities, black and aboriginal children within these groups are particularly vulnerable (Dalley, 2010). One case of internal trafficking is that of a 17-year-old Canadian girl trafficked for commercial sexual exploitation. The girl’s trafficker, Michael Lennox Mark, pleaded guilty but then received two years’ credit for one year in pretrial custody. He spent only a week in custody after his conviction. The victim declined to give her victim impact statement in court when she was informed how soon her trafficker would be released (Parliament of Canada, 2010c). Canadian-born persons can also become victims of forced labor. Christine Barker is one such victim. A Canadian citizen allegedly enslaved by Khaira Enterprises Ltd., Barker was mistreated and unpaid. At times she and other workers were refused food. Some of the workers also faced death threats. Barker saw a supervisor threaten to kill a Congolese co-worker and then throw a knife at him. “When we started the work refusal, that’s when the camp conditions got even worse; showers were denied,” Barker told the
Vancouver Sun
. “We were refused food because we weren’t working for him at that time” (Bolan, 2010). Barker has since been unable to collect employment insurance because the company, Khaira, claimed on her documents that she quit (Bolan, 2010).
WHAT HAPPENS TO VICTIMS AFTER TRAFFICKING
As recently as 2006, potential victims were treated as illegal migrants and often deported without any sort of screening to determine if they were trafficking victims. Benjamin Perrin, founder of the Future Group (an NGO), says victims were deported without any psychological counseling or emergency support. “There was no system in place to protect victims,” Perrin said (Chan, 2007). In June 2007 immigration guidelines were amended to enable immigration officials to better assist and protect foreign trafficking victims. The guidelines extended the temporary residence permits (TRPs) from 120 to 180 days, which can be renewed at the termination of the 180-day period (this varies with each individual case). Yet between May 2006 and February 2009, only 26 permits were issued, and only 18 of those went to trafficking victims. In 2011, 53 TRPs were issued to 48 foreign trafficking victims. Five of the TRPs were first-term permits, and 48 were renewals (CIC, 2007; UNODC, 2009; U.S. Department of State, 2012). Victims are now allowed to apply for work permits, and there are no fees for either the work visa or TRP. Victims are eligible for psychological and trauma counseling, dental care, and essential and emergency medical care. Also, while victims are encouraged to testify in cases against their trafficker(s), their ability to obtain temporary or permanent status does not depend on it (CIC, 2007; U.S. Department of State, 2010). Other victims opt to seek residency via humanitarian or refugee immigration applications instead of utilizing the TRP. They do so in part because benefits are perceived to be more secure and the immigration status associated with humanitarian or refugee applications may be more familiar to immigration officials (U.S. Department of State, 2010). Canada receives more than 30,000 refugee claims a year, and each refugee determination process averages 16 months (Whittington, 2010).
Support services for trafficking victims are generally provided at the provincial level, so the type and quality of the services vary. Most jurisdictions do provide victims with shelter, short-term counseling, and rape counseling, and also feature initiatives targeted at aiding aboriginal women. Additionally, NGOs provide victim services such as resettlement, shelter, and employment assistance (U.S. Department of State, 2010).
WHAT HAPPENS TO TRAFFICKERS
Under the IRPA, the only anti-trafficking law in existence between 2002 and 2005, cross-border traffickers can face a maximum of life in prison and fines of up to $1.025 million. Thus far, few prosecutors have used the IRPA for cross-border trafficking. The first person charged under the human trafficking law was massage parlor owner Michael Wai Chi Ng (U.S. Department of State, 2007a; RCMP, 2010). Ng was accused of bringing two women from China into Canada after promising them waitress jobs and then forcing them to work as prostitutes. In 2008 Ng was sentenced to a 15-month jail term for falsifying immigration documents, human smuggling, procuring sexual intercourse, and running a common bawdy house (brothel). He was acquitted on the charge of human trafficking. The British Columbia Court of Appeal increased Ng’s sentence by 12 months on the grounds of inadequate sentencing for the prostitution-related convictions. Ng faced a total of 27 months’ imprisonment (Perrin, 2009b; RCMP, 2010).
In 2005, Bill C-49: An Act to Amend the Criminal Code (Trafficking in Persons) was passed, adding sections 279.01 to 279.04 to the Criminal Code. These sections make trafficking in persons a criminal offense, allow charges of human trafficking to fall under multiple jurisdictions, and go beyond the focus on immigration. The act prohibits the recruitment, transport, transfer, receipt, concealment, or harboring of a person, or the exercise of control, direction, or influence over the movements of a person, for the purpose of exploitation. It also prohibits a person from benefiting economically from trafficking and prohibits the withholding or destruction of identity, immigration, or travel documents to facilitate trafficking in persons. Penalties are up to 14 years’ imprisonment for human trafficking, with a 5-year minimum for minors. The first charge under section 279.01 occurred in 2007. As of November 15, 2009, of 33 persons charged under section 279.01, 5 had been convicted. Charges were dropped against 2 of the accused because of a victim’s absence in court, while 3 others were acquitted of the human trafficking charges but found guilty under trafficking-related charges such as assault with a weapon, kidnapping, aggravated sexual assault, and forcible confinement. Human trafficking convictions have resulted from guilty pleas, not from judicial pronouncements (Barnett, 2006; RCMP, 2010).
Of concern is the use of 2-for-1 credit granted to traffickers. For example, in the sentencing of Michael Lennox Mark, one year in pretrial custody was counted as two (Rabson, 2009). Likewise, in the case of Laura Emerson, her sentence was reduced by 16 months for the 8 months and 10 days that she spent in pretrial custody (Payton, 2009). In October 2009 federal legislation placed a cap on credit for time served at 1-to-1. The law will permit judges to give credit at a maximum ratio of 1.5-to-1 only when the circumstances can justify it. Judges are required to explain the circumstances (CBC News, 2009; Parliament of Canada, 2010a).
Until recently, Canada did not have a minimum sentence for those who commit trafficking offenses. In order to change this, MP Joy Smith introduced Bill C-268. Passed in June 2010, the law amends the Criminal Code to create a minimum prison sentence of five years for offenses involving the trafficking of persons under the age of 18 (Parliament of Canada, 2010b; Cherry, 2010). Perrin, who helped draft Bill C-268, says the new law (section 279.011) is only one part of the solution. He believes part of the problem is that trafficking cases are often filed under different offenses, even though anti-trafficking law has existed in the Criminal Code since 2005. “Some cases are like charging someone with assault when they murder someone,” Perrin told the
Toronto Sun
. “We should be charging someone with the most serious charge that their conduct warrants” (Cherry, 2010).
While the number of persons trafficked through, to, and within Canada are estimated to be in the thousands, the number of reported investigations and prosecutions is low. Convictions are even less common (UNODC, 2009). In late February 2010 there were 32 trafficking cases before the courts. The cases involved 40 alleged traffickers and 46 victims. Ninety-seven percent of the cases involved sex trafficking. In 2009 there were 1 conviction under trafficking-specific laws and 3 under other Criminal Code offenses, such as sexual assault and living off the proceeds of prostitution. The sentences ranged from six to nine years’ imprisonment. As of late February 2011 there were 46 human trafficking cases before the courts, involving 80 victims and 68 accused offenders. There were 2 convictions under trafficking-specific laws. The offenders received sentences of 6 years’ imprisonment and 30 months of credit for pretrial custody. There were also at least 7 convictions under non-trafficking specific offenses; 2 of these offenders were sentenced to 34 months’ imprisonment. The other sentences were not reported. In 2011 there were 3 convictions of sex traffickers under trafficking-specific laws. One of the offenders received a sentence of 30 months’ imprisonment, including credit for pretrial custody. Another offender was sentenced to time served after spending just over a year in jail. Six other sex-trafficking offenders were convicted under other sections of the Criminal Code; sentences ranged from two years’ suspended to nine years’ imprisonment. Of significance is that the government of Canada attained its first forced labor conviction in 2012 (U.S. Department of State, 2010; 2011; 2012).
INTERNAL EFFORTS TO DECREASE TRAFFICKING
Officials and border agents often screen vulnerable persons detained for immigration violations for signs of human trafficking. Additionally, Canadian consular officials and domestic law and social service officials receive training in identifying trafficking victims and the assistance and protections available to them. NGOs are given funding by the government through the Victims Fund, which has an annual budget of $11.6 million to fill in potential gaps in services for trafficking victims. In addition, the government is making $5.38 million available over five years to create new child advocacy centers or to enhance existing ones in Canada (U.S. Department of State, 2007b; Department of Justice, Canada, 2012).
The government has increased its anti-trafficking prevention measures through awareness campaigns, which distribute anti-trafficking materials and support an anti-trafficking website. The most recent awareness campaign is called Blue Blindfold and includes radio, print, and television spots (Mayes, 2010). While these materials and the website may help those in the community better identify victims, they are less accessible to actual victims, who tend not to be allowed out on their own and are threatened with bodily harm or death to ensure that they will not attempt escape.
According to MP Joy Smith many Canadians are simply oblivious to human trafficking. “The average Canadian is not aware of the victims in their cities and communities who are held in bondage, threatened and brutalized as they try to seek help, if they try to seek help. Predators are making vast amounts of money off their suffering” (Fitzpatrick, 2006). Smith said that the passage of Bill C-268 is a victory, but much more needs to be done, particularly concerning victim protection and services:
It’s been brought up to the forefront and now, there has to be an awareness both at the provincial and federal level that this is happening right under the public eye. This coordination has to happen to ensure that, number one, the laws are put in place to arrest and make sure that these perpetrators stay away from their victims, and number two, there has to be, in my opinion, the rehabilitation piece, where victims are counseled, where they’re helped to get a new education, get jobs and helped to get out of this horrific crime. (Cherry, 2010)
Although prostitution is legal in Canada, many of the surrounding activities, such as owning a bawdy house, are not. In response to a 2010 constitutional challenge by three sex industry workers, the Ontario Superior Court held to be unconstitutional three anti-prostitution laws that are often used to prosecute traffickers (such as prohibiting living on the avails of prostitution and operating a bawdy house). The federal government appealed and lost in March 2012 when the Ontario Court of Appeals upheld the decision of the Superior Court (CBC News, 2010; U.S. Department of State, 2012). Some anti-trafficking experts support the global decriminalization of prostitution and associated activities, with the hope that increased transparency would minimize opportunity for human trafficking. Others hold that nations simply do not have infrastructures in place to sufficiently monitor and regulate the sex industry. Valerie Scott, a sex worker and one of the applicants in the 2010 case, said that the decision reduces the risk of violence for sex workers. “We don’t have to worry about being raped and robbed and murdered. This decision means that sex workers can now pick up the phone, and call the police and report a bad client. This means that we no longer have to be afraid, that we can work with the appropriate authorities” (CBC News, 2010).
Canada is consistently moving forward in terms of anti-trafficking legislation, but the government’s persistent conflation of human trafficking and smuggling as well as its determination to limit the rights of refugees based on their form of entrance into the nation, is a step backward. Furthermore, the number of convictions is nominal. Sentences are insufficiently stringent, and many convicted offenders still receive inflated credit for pretrial custody.