Invisible Chains (20 page)

Rather than applying the elements of human trafficking under IRPA, Judge MacLean chose instead to determine whether Ms. W and Ms. T were “trafficked persons,” based on his understanding of the term and generalizations from an expert witness. The case summary for the decision states, “Not convicted of human trafficking and other offences where prostitutes did not convince court they were victims.”

This appears to be an astonishing reversal of the expected process since the victims weren't on trial—Ng was.

The reaction to Judge MacLean's ruling was instantaneous, and it devastated efforts to recognize human trafficking as a high-profile and serious crime. The media lambasted police and prosecutors following Ng's acquittal for human trafficking, and the fallout likely set British Columbia back several years in its attempt to investigate and prosecute sex trafficking cases. Both Ng and the Crown prosecutor appealed the sentence handed down against him to the B.C. Court of Appeal. While the Crown prosecutor had asked for Ng's sentence to be increased to five years imprisonment, Ng's defence counsel asked for his release based on five and a half months of time served.

“All the offences committed by Mr. Ng involved significant moral turpitude, and the two complainants and other women were victims of his greed and opportunism,” wrote Mr. Justice Low for the B.C. Court of Appeal. “The sentences imposed for the prostitution offences do not adequately speak to these factors and are unfit. The global sentence is inadequate.”

Ng's sentence was increased by one year to twenty-seven months imprisonment. This relatively rare decision of an appeals court to increase a sentence handed down at trial suggests that the sexual exploitation of foreign nationals should be taken more seriously by sentencing judges, even if convictions do not include human trafficking.

More recent international sex trafficking charges laid under the
Criminal Code
have also failed to produce convictions. In January 2008, an Eastern European woman in her twenties shared her story with the Toronto Police Service: She'd answered a webpage advertisement for employment in Canada. Upon arrival, she was given a cellphone that she had to answer twenty-four hours a day and was expected to be prostituted in order to cover the expenses of the individuals who'd arranged for her travel. Several other women came forward with similar stories, resulting in charges being laid against several people for a range of offences that included human trafficking.

Despite the victims having come forward, the case eventually fell apart because the investigating officers weren't able to pursue the details fully. A senior officer with the Toronto Police Service's Sex Crimes Unit says, “Credibility, sometimes, can be an issue if you don't have resources to get the evidence to back them up. That's why you need a unit that's mandated to look into that [human trafficking].”

Prosecutions in Canada related to international trafficking through Canada into the United States have also proven elusive. Take, for example, the June 2006 case in Osoyoos, British Columbia, discussed in
Chapter 4
. Police were unable to lay human trafficking charges against the man who was transporting the women because, according to the RCMP human trafficking awareness coordinator for British
Columbia and Yukon, the driver of the rental truck knew only that he was to drive people to the border. Demonstrating their ability to work the system, the trafficking network had hired him on a need-to-know basis. As a result, the evidence to support a human trafficking charge was insufficient.

If Canada's system of dealing with human traffickers can be so easily thwarted, how truly effective is it? The human traffickers that have operated in Canada with impunity
vastly
outnumber the handful of offenders that have been convicted to date. And most of those convicted have faced sentences that pale compared with the long-term devastation experienced by their victims. A new criminal offence and a few good police officers have not been enough to end the rise of human trafficking in Canada. What more is needed?

12

ENDING IMPUNITY,
OFFERING HOPE

C
anada's weak record in prosecuting
human trafficking has captured international attention. In 2008, the U.S. State Department
Trafficking in Persons Report
criticized Canada, among other things, for its “limited progress on law enforcement efforts against trafficking offenders”—diplomatic language for sure. The effective prosecution of human traffickers requires, at a minimum, the following:

•  clear and well-conceived criminal offences

•  well-trained police officers with sufficient resources to investigate cases of human trafficking

•  prosecutors willing to proceed with human trafficking charges

•  a judicial system that is able to efficiently process criminal charges, with due regard to the rights of the accused

•  protection of the safety and privacy of witnesses and victims

•  judges who recognize the gravity of human trafficking in the sentencing of convicted traffickers

•  continued protection and assistance for trafficking victims before, during, and after the completion of the prosecution of their traffickers

Let's see how Canada measures up to these standards.

Fixing gaps in the law

Although Canada has ratified the
Palermo Protocol
and taken positive steps toward adopting new “trafficking in persons” offences in the
Criminal Code,
these offences are too narrowly defined. They also depart from the agreed definition of human trafficking in the Protocol in some very unfortunate ways.

The
Criminal Code
's definition of human trafficking centres on the victim's fear for safety or the safety of someone known to the victim. This is unfortunately too narrow because it fails to criminalize other means by which trafficking is routinely committed. It could be argued that “safety” should not be restricted simply to physical harm but also should encompass psychological and emotional harm (i.e., blackmailing the victim). Yet the definition may fail to address insidious methods used by traffickers—deception, fraud, abuse of power/position of vulnerability, or payment of someone to control the victim—that should be included, as required by the
Palermo Protocol.
These methods are not clearly captured in Canada's
Criminal Code
definition unless they can be linked to the concept of “safety.” As a result of this loophole, traffickers in Canada have been able to escape human trafficking charges.

Undercover RCMP officers have posed successfully as members of the criminal underworld and purchased women on the understanding that the victims would be under their full control, yet they knew they couldn't charge the vendors with human trafficking. The reason? Because the officers couldn't prove the women feared for their safety. Unfortunately, as we've seen, the most sophisticated traffickers don't resort to physical threats or abuse, but rely instead on more subtle methods. Canada's definition of human trafficking remains an oddity when compared with those of other countries that have enacted criminal offences against the practice. Furthermore, since fear for safety is an element of the crime, victims bear the burden of convincing the court they had such a fear. As a result, only the most extreme cases of human trafficking, which often involve severe physical violence or threats, are likely to be prosecuted.

Second, the
Criminal Code
definition of exploitation in the human trafficking offences does not distinguish between victims who are under eighteen years of age and those who are over that age. The
Palermo Protocol
requires no proof of the “means” by which exploitation took place for minors—if they are recruited, transported, or controlled for the purpose of sexual exploitation or forced labour, they are victims of human trafficking. Once again, however, Canada insists on the added element of there being proof of the victim's fear for safety. The prosecution of Imani Nakpangi, detailed in
Chapter 11
, revealed this pitfall in the case of fourteen-year-old Samantha.

Finally, as described in
Chapter 11
, vastly inadequate sentences in four of the five trafficking convictions to date have exposed the need for more serious penalties, especially for charges of child trafficking. While the maximum sentences provided for in the
Criminal Code
are sufficient, the sentences handed down so far are nowhere near that maximum. The “trafficking in persons” offence was adopted without any mandatory minimum penalty, something other serious criminal offences carry. Bill C-268 thankfully changes that, at least with respect to child victims.

Improving the law enforcement response

While only five convictions for trafficking in persons were obtained nationally between June 2008 and April 2009, the number of investigations and charges are slowly increasing. Progress is uneven across Canada, however, with no convictions outside of Ontario and Quebec as of early 2010. Yet human trafficking cases have been documented across the country.

The RCMP Human Trafficking National Coordination Centre, based in Ottawa, is headed by a national coordinator and comprises five police officers and two civilian analysts. As part of the RCMP's Immigration and Passport Branch, the HTNCC is responsible for helping to coordinate human trafficking investigations in Canada, to develop policy, and to identify and share best practices with law enforcement nationally and internationally. Created in 2005, the
HTNCC is
not,
despite its name, a national investigative unit for human trafficking. Instead, it has focused on providing basic training to thousands of front-line police officers—a valuable starting point, but no substitute for dedicated teams that are needed to investigate the most active human trafficking operations in Canada.

The RCMP's training efforts are beginning to yield dividends as dozens of new investigations have opened up across the country, the result of front-line police officers identifying the warning signs. However, the RCMP needs to deliberately and proactively target interprovincial and international trafficking networks and groups in order to shut them down. Hopefully, a “threat assessment” completed late in 2009 will spur the RCMP to do just that.

Cracking down in one jurisdiction, without a coordinated response, may simply cause traffickers to relocate to areas where enforcement is less stringent. The Criminal Intelligence Service Canada warns that human traffickers take advantage of the lack of a coordinated response to escape justice, moving to cities or provinces that are less active in combatting human trafficking. Despite efforts to train police in Canada, knowledge of human trafficking as a criminal offence remains alarmingly low, even though the legislation has been in force for several years now.

In April 2009, a Toronto Police Service spokesperson was asked why charges of human trafficking hadn't been laid against Tyrone Dillon for allegedly forcing Joyeuse, a Haitian woman, to be sold for sex after he'd abducted her child (see
Chapter 7
for details). “Human trafficking?” responded the police spokesperson. “Is there such a
Criminal Code
charge for human trafficking?” And yet here was a textbook case of human trafficking.

Several police officers interviewed for this book indicated that they have not received any training whatsoever on the human trafficking offences in the
Criminal Code.
How effectively can the Crown make a case for Joyeuse and others like her when law enforcement officers have little knowledge of when and how to identify the crime, gather evidence, and proceed with charges?

A lack of sufficient investigative resources compounds the challenges of gathering evidence about the exploitation of individuals in sex trafficking in major Canadian cities. The vice units of major police forces across Canada have been gutted in recent years and are often responsible for combatting gangs and drugs, as well as prostitution and sex trafficking. The smaller number of officers undermines not only the scope of direct investigations but also sharply reduces the opportunity for investigators to access informants “on the street.”

In Montreal, as Detective Sergeant Dominic Montchamp puts it, “[w]hen we investigated massage parlours and escort agencies ... we built up a bank of informers. If there was a change in the sexual industry we had a phone call within an hour. Since we're not doing this, the phone doesn't ring anymore.”

The Calgary Police Service, Vice Unit, which investigates human trafficking cases, has been reduced from approximately a dozen officers in 2004 to just several today. And while the Toronto Police Service has a Special Victims Unit mandated to investigate violence against prostituted persons, it has not been mandated to proactively investigate human trafficking cases. “The Special Victims Unit has one detective and four constables and they are overworked,” says one member of the Toronto Police Service familiar with the situation. “If a case was discovered today involving human trafficking, say more than one victim, they would have a hard time focusing on that particular case.”

Human trafficking investigations are resource intensive and, especially with international cases, can prove costly. For example, the investigation and prosecution of the case involving Wai Chi (Michael) Ng cost the Vancouver Police Department, Vice Unit, approximately $250,000 and entailed one sergeant and eight detective constables working almost full-time over six months. Since the Ng case was a human trafficking prosecution under IRPA, it involved collecting evidence in another country. Police officers in multiple jurisdictions have stated that requests to initiate wiretaps in recent human trafficking investigations have been refused due to a lack of funding, resulting in perpetrators escaping charges.

Chiefs of police who allocate resources and seek greater funding for more officers need to take note and invest more in equipment, training, and officers to eradicate human trafficking. The lack of specialized police officers to gather criminal intelligence and proactively investigate human trafficking offences represents one of the largest gaps in Canada's prosecution of traffickers.