The Evolving Canadian Anti-Trafficking Legal Context

Our data was collected at a vital moment for criminal law reform: the 2013 unanimous Supreme Court of Canada decision to uphold the safety and security rights of sex workers by striking down the criminal prohibitions against publicly selling sexual services, operating a brothel, and living on the avails of prostitution (Canada (Attorney General) v Bedford 2013). This landmark decision was quickly supplanted by the Conservative government’s enactment of an ostensibly asymmetric (end-demand) system of law criminalizing the purchase of sexual services, third-party involvement, and third-party advertising in commercial sex work, among other prohibitions (the Protection of Communities and Exploited Persons Act 2014; hereinafter PCEPA).Footnote ⁵ This highly controversial law reinstated many of the criminal prohibitions that were declared unconstitutional in Bedford while increasing criminalization and altering the declared objective of criminalization. The PCEPA demarcates a paradigmatic shift away from regarding commercial sex work as a public nuisance to viewing sex work as a form of exploitation disproportionately affecting (cisgender and straight) women and girls who are assumed to be passive victims in need of state protection and assistance to “exit” the sex sector. The PCEPA increased the severity of new and re-enacted prohibitions, along with their minimum and maximum penalties, some of which appear to be implicitly gender biased.Footnote ⁶ The PCEPA also added subsidiary human trafficking offences and increased the severity of their penalties. There is significant overlap in the phrasing and elements of some of the new commodification offences and the criminal trafficking in persons offences, which is troubling given the prospects for over-charging and multiple convictions for essentially the same offence.

In Canada, the conflation of human trafficking and prostitution and a consequential reductive narrative that trafficking is mostly, if not entirely, related to sexual exploitation, serves to invisibilize the multiplicity of other forms of trafficking, including same-sex and gender non-binary sex trafficking and a range of other labour and human rights violations, other forms of exploitation, and forced labour.Footnote ⁷ This unidimensional (re)presentation of trafficking is evidenced in many ways, including the enactment and amendment of criminal anti-trafficking laws and the jurisprudence interpreting and applying those laws; anti-trafficking policies, especially the National Action Plan to Combat Human Trafficking (Public Safety Canada 2012) and recently released $75 million National Strategy to Combat Human Trafficking 2019–2024 (Public Safety Canada 2019) establishing a national human trafficking hotline and a national advisor on human trafficking; national government consultations and reports on trafficking in persons; anti-trafficking law enforcement units that originally were embedded in vice and counter-exploitation units; government and non-government anti-trafficking campaigns; and in the mediatization of trafficking cases.

Of concern, the legislative conflation and expansion of criminal laws to regulate the commercial sex sector and sex trafficking stand in addition to an immigration regulation introduced in 2012, Protecting Workers from Abuse and Exploitation, designed to prevent the migration of and/or to deport foreign nationals. This regulation is directed especially at women and girls between the ages of fifteen and twenty-one suspected of coming to Canada on temporary visas to work in the commercial sex sector, broadly defined, on the pretext of the state benevolently “protecting” such young women from exploitation. There is some preliminary data suggesting that this regulation is being used to racially profile women (Daly Reference Daly2017). This legislative expansionism and convergence of criminal and immigration laws, 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 (see, Chu, Clamen, and Santini Reference Chu, Clamen and Santini2019).

Legislative expansionism is further accompanied by increased surveillance of “at-risk” communities through “preventive” policing—especially police undercover operations and workplace raid and rescue campaigns—with questionable empirical evidence about the effectiveness of these campaignsFootnote ⁸ and, frequently, adverse consequences for members of communities who are subject to intensified and unwarranted legal intervention (see, e.g., Belak and Bennet Reference Belak and Bennett2016; Belak et al. Reference Belak, Bowen, Porth, Shannon and Taylor2016; Benoit, Jansson, Smith, and Flagg Reference Benoit, Jansson, Smith and Flagg2017; Butterfly Asian and Migrant Sex Workers Support Network 2018; Canadian Alliance for Sex Work Law Reform (CASWLR) and Pivot Legal Society 2016; Canadian HIV/AIDS Legal Network 2018; Canadian Public Health Association 2014; Clancey, Khushrushahi and Ham Reference Clancey, Khushrushahi and Ham2014; Global Network of Sex Work Projects (NSWP) 2018; Khan Reference Khan2015; Krüsi Pacey, et al. Reference Krüsi, Pacey, Bird, Chettiar, Allan, Bennett, Montaner, Kerr and Shannon2014; Lam Reference Lam2016, Reference Lam2018; Platt et al. Reference Platt, Grenfell, Meiksin, Elmes, Sherman, Sanders, Mwangi and Crago2018; Sterling and Van der Meulen Reference Sterling and van der Meulen2018).

Key Findings: A Villain/Victim/Rescuer Narrative

Paralleling Canada’s changed legal landscape for regulating commercial sex, we found that police-reported prostitution charges under the constitutionally impugned provisions of the Criminal Code sharply declined coinciding with the Bedford (2007 to 2013) legal challenge. They are gradually being replaced by charges for trafficking in persons and the new commodification and amended prostitution offence, which have progressively increased. Police-reported charges reveal that a total of 937 persons were charged in relation to an alleged 1,188 incidents of trafficking in persons between 2006 and 2017, with over three quarters of these persons being charged in the last four years (2014 to 2017). Most of these persons were adults (883 or 94 %) and male (770 or 82%). The two most populous provinces (Ontario and Quebec) account for approximately 85% of those charged. We suspect that this provincial concentration of charges reflect differing police agency priorities and the resources these provinces are investing in anti-trafficking efforts (e.g., the Ontario Strategy to End Human Trafficking 2016–2019).Footnote ¹³ Even though trafficking incidents and the number of persons charged have steadily increased since 2010, it is important to contextualize that trafficking in persons continues to account for a very small proportion of criminal activity; for example 0.02% of all criminal incidents reported to the police in 2016 (Ibrahim Reference Ibrahim2018).

In comparison to these 937 charged persons, we were able to verify 87 trafficking in persons cases actually prosecuted, with several involving multiple co-accused, for roughly the same period. Just under half (48.8%) of these cases resulted in trafficking specific convictions contrary to section 118 of the Immigration and Refugee Protection Act or section 279.01–279.04 of the Criminal Code. The prosecuted cases overwhelmingly reflect domestic sex trafficking charges (eighty of eighty-seven cases or 92%). Virtually all the prosecuted cases involved multi-count indictments, and a large proportion included co-charges for prostitution and/or commodification offences (sixty-seven cases or 77%). A similar proportion (sixty-eight cases or 78%) involved co-charges for other violence offences, suggesting the prosecuted cases likely represent the most serious offences. Many of the cases involved one or more minor victims consistent with other research suggesting that the enforcement of anti-trafficking laws in Canada (Kaye Reference Kaye2017; Roots Reference Roots2013) and the United States (Williamson and Marcus Reference Williamson, Marcus, Horning and Marcus2017) is conflated with the commercial sexual exploitation of children. Most of the prosecuted trafficking cases were prosecuted in Ontario (sixty-three cases) and Quebec (eight cases).

In contrast to Statistics Canada (Ibrahim Reference Ibrahim2018) police-reported crime data indicating one third of human trafficking incidences are transborder offences involving violations of the Immigration and Refugee Protection Act (IRPA), only six (7%) of the prosecuted cases involved alleged transnational trafficking: one case involving alleged sex trafficking and five cases involving alleged labour trafficking concerning the construction and domestic work sectors. One additional case involved alleged trafficking concerning an arranged transnational marriage. Only one of these transborder cases resulted in trafficking specific convictions, with all other cases resulting in either a full or partial acquittal or withdrawal of the trafficking specific charges. As we found with our original study, there continues to be negligible evidence of organized criminal involvement in the post-2015 prosecuted cases.

In brief, we observed racialization and sensationalism across various binary identities that seemed to connote difference and belonging in terms of racially and/or gender-threatening perpetrators, deserving victims, and valiant rescuers. These binaries included: cisgender/transgender or gender non-binary, heterosexual/queer, citizen/non-citizen or immigrant to Canada and various ethnoracial distinctions where perpetrators and victims were racialized by their visible identity or surname as either White/Black, Indigenous/non-Indigenous, or Western European versus persons of Eastern European, Caribbean/Central/South American, African, or East/Southeast/South/West Asian, Arab or Muslim descent. We were struck by the apparent overrepresentation of Black male and Caribbean accused as primary or co-accused in at least thirty-five (40%) of the eighty-seven cases. This percentage is markedly higher than the 3.5% of Canadians who self-identify as Black (Statistics Canada 2017), similar to data from the United States collected by Williamson and Marcus, who assert that anti-trafficking law enforcement has become another form of “Black criminalization.” These American scholars determined that the use of trafficking charges in place of previous prostitution-related charges has resulted in much harsher sentences for essentially the same conduct (2017, 178). The impacts are felt at an amplified level for Black men due to preconceived notions of the “pimp” figure and the sustained positioning of sex workers, who are presumed female, lacking agency and requiring state protection.Footnote ¹⁴

Like Williamson and Marcus (Reference Williamson, Marcus, Horning and Marcus2017), we found that a disproportionate number (twenty-seven of forty-five) of the published photos in media sources portrayed Black male accused whose photos were often displayed in ways that suggested the accused was threatening (labelled dangerous) or callous (for example, smiling when leaving court). In these same cases, the media frequently headlined the case as a pimping or violence case. We also observed a strategy of “media saturation,” where the photos of Black male accused were repeatedly displayed across various news articles, while the same did not seem to apply to the photos of White male accused. In at least two cases where the media published photos of Black accused, the media appeared to mislead the public, since the news article was about a particular accused, yet the photo was of another Black male suspect. Additionally, there seemed to be conspicuous inter-racial patterns in the publication of accused photos. For example, if the media published a photo of a White accused, it was often published in tandem with the photo of a Black co-accused or the news article was hyper-linked to the photo of a Black accused in another unrelated case. Assuming that a significant proportion of the accused should be White in relation to actual population representation (about 73% according to Statistics Canada 2017 reporting on the 2016 census), the media published very few photos of White male accused, although the same did not seem to apply to White female accused.Footnote ¹⁵ These patterns accord with what Maynard (Reference Maynard2017, 10) describes as anti-Blackness and the “encoding of Black persons as criminal, dangerous and unwanted … across Canadian institutions.”

In addition to the racialized photo imagery, we observed that at least twenty of the prosecuted cases appeared to involve male and female accused with racialized (especially Arab/Muslim and Eastern European) names, and in at least one case, the presumed Muslim faith of the accused was the main news headline (Cueni-Cohen Reference Cueni-Cohen2018). Cumulatively, these patterns suggest the media use racialized and gendered stereotypes in framing their coverage of criminally accused and offences, which aligns with a racial threat hypothesis. The disproportionate number of Black accused and accused with Arab/Muslim names represented among these eighty-seven cases calls into question whether racialized accused are actually committing a greater proportion of trafficking offences (arguably due to deeply embedded structural disadvantage and social alienation resulting from widespread discrimination and social exclusion across multiple social, political, and economic institutions) or are being racially profiled by the police and those with prosecutorial discretion.

These findings, while tentative, accord with other empirical research on anti-trafficking law enforcement in Ontario (Roots Reference Roots2018). The findings are significant as well given that most of the prosecuted cases are from Ontario and Quebec, where recent investigations and judgments have ascertained the existence of racial profiling, systemic racism and structural violence within the criminal justice system. This data highlight a number of potentially adverse legal consequences associated with racialized and gendered sensationalism, including jeopardizing an accused’s right to a fair trial, especially when the police provide misleading suspect photos to the press and/or hold press conferences and make inflammatory and possibly false or inaccurate statements about an accused (see, e.g., R v Joseph 2018; Ladha, Mumtaz et al. v Canada (Attorney General) and BC (R) 2015; Russell and Robinson Reference Russell and Robinson2019).Footnote ¹⁶

By way of comparison, we found that, with the forty prostitution and commodification cases, the media seemed more inclined to publish a photo of a White male accused in cases involving the purchase of sex from a minor and/or co-charges pertaining to the (predatory) sexual exploitation of children. Conversely, the photos of Black male accused were more likely to be published in procuring and material benefit cases, again reflecting and reinforcing binary racialized stereotypes. We also observed that sex purchasing cases appeared to receive far less media attention than alleged human trafficking and pimping cases.

In sharp contrast to the media portrayal of racially threatening human traffickers, the media portrayal of human trafficking victims overwhelmingly suggests that the victims are sympathetic/unwitting young White females in need of rescue by a benevolent and predominantly White criminal justice system, White victim advocates or religious institutions (such as the Salvation Army and a variety of Protestant and Catholic churches and charities).Footnote ¹⁷ While the identity of victims is protected in prosecuted trafficking cases, some victims or their families have come forward to the media, once again imparting an image that most victims of trafficking are young White-appearing women.Footnote ¹⁸ Moreover, the media portrayal of many of the eighty-seven prosecuted cases used inter-racial White victim imagery juxtaposed with the photo of a Black accused or an alleged trafficker with a Muslim/Arab surname, especially images of White hands bound in ropes or chains, sometimes controlled by Brown hands, or a White victim who is otherwise physically constrained.Footnote ¹⁹ General media coverage of human trafficking cases also seems to use these same stock images of, for example, a young White female whose face is not shown, or who is branded, or White street-based sex workers (even though street sex work is known to be highly racialized and despite the fact that most of the prosecuted cases related to trafficking involving indoor sex work).Footnote ²⁰ In other cases, photos or images of the criminal justice system were used, usually of White police officers or Crown counsel or victim advocates or photos or images of court houses, the scales of justice, police cars, or the logos of police forces.Footnote ²¹

In relation to the changed post-PCEPA law enforcement landscape, the police—and other law enforcement agencies, including border enforcement and bylaw authorities—have changed their policing tactics by implementing proactive suppression campaigns that are strategically packaged for and by the media through press conferences as “rescuing” vulnerable young women and girls from exploitation (being forced into the sex trade or perceived to be at risk of trafficking). These operations include the RCMP’s Canada-wide multi-agency “Northern Spotlight,” now in its seventh iteration (RCMP 2018), York Regional Police’s “Project Raphael” (York Regional Police 2017), and Peel Regional Police’s “Rescue Innocence” (Mullins Reference Mullins2011), where the media have readily reported the statistics and information provided to them by the police, despite the inaccuracy of some of that information (R v Joseph 2018). A number of these and other operations have specifically targeted sex purchasers through police sting operations, such as Cape Breton Regional Police’s “Operation John Be Gone” (Cape Breton Post 2018) and various other city police sting operations (Montreal, London, Toronto, York, Edmonton, and Vancouver), where, in some instances, the media have published the names, ages, and community of residence of the alleged purchasers (but inconsistently not their photos) in an effort to publicly shame them and deter other potential purchasers (Judd Reference Judd2019).

As the prosecuted cases affirm, these police tactics raise complex legal questions about the defence of entrapment and a suspect’s right to a fair trial, particularly in cases involving significant adverse, and in some cases inaccurate or misleading, publicity. A number of these police operations and their associated press conferences have been actively opposed by sex workers and sex worker rights organizations, who question the efficacy of the campaigns and note their negative impacts (see, e.g., The Canadian Press 2018; Ling Reference Ling2018; Pivot Legal Society 2017). In addition to adversely affecting the right of sex workers to seek a livelihood (it is generally legal for an adult to sell sex in Canada unless doing so publicly in a manner that impedes traffic or is in close proximity to a place where children are likely to be present), these campaigns jeopardize the health, safety, and wellbeing of sex workers, including migrant sex workers who have been detained and summarily deported (Burke Reference Burke, Durisin, van der Meulen and Bruckert2018; Chu, Clamen, and Santini Reference Chu, Clamen and Santini2019; Lam Reference Lam2018). Indeed, there is emerging empirical evidence that these racializing stereotypes, when combined with the criminalization of commercial sex work, contribute to greater fear and vulnerability for racialized sex workers, who are forced to take fewer precautions in negotiating with clients (Sterling and van der Meulen Reference Sterling and van der Meulen2018).Footnote ²²

The dominance of inter-racialized images of Black and Arab/Muslim accused and White female victims is highly problematic, not only in terms of which suspects are likely to be over-surveilled by police and disproportionately prosecuted and convicted, but also because it influences which victims have access to justice. Our findings add to the existing literature suggesting there are racialized victim hierarchies in Canada (Chan and Chunn Reference Chan and Chunn2014; Jiwani Reference Jiwani2009, Reference Jiwani2019; Raguparan Reference Raguparan2019). For example, there has been considerably less media coverage of transborder trafficking victims, such as the fate of the nineteen male victims and their families in the high-profile Domotor-Kolompar Ontario labour-trafficking case. It is also clear from the limited available Canadian data that Indigenous and Black women and girls are targeted for violence at a higher rate than White women and girls (see, e.g., Native Women’s Association of Canada 2013)Footnote ²³ and still seem to be vastly underrepresented in much of the media coverage and in the 127 prosecuted cases. Despite repeated claims by the police and others that trafficking is strongly linked to violence against Indigenous women and girls, Indigenous victims were judicially identified in only two trafficking cases and two commodification cases, representing a total of ten victims across the 127 cases. Further, judicial proceedings rarely identified Black female victims (only two or three cases). Due to many factors, including low reporting rates and a justifiable lack of confidence in the Canadian colonial state, these data once again demonstrate the invisibility of the violence done to Indigenous and Black women and girls, and other persons of colour (see, especially, Hunt Reference Hunt2015; Jiwani Reference Jiwani2019; Kaye Reference Kaye2017; Martin and Walia Reference Martin and Walia2019; Maynard Reference Maynard2017, Reference Maynard, Durisin, van der Meulen and Bruckert2018; Raguparan Reference Raguparan2019; UN Special Rapporteur on the Rights of Indigenous Peoples 2014). Likewise, the reductive narrative of human trafficking as sex trafficking means that labour and human rights violations, other forms of exploitation, and forced labour in multiple (and especially precarious) work sectors remain invisible and unaddressed (Millar and O’Doherty Reference Millar and O’Doherty2015).

Conclusion and Recommendations

Our data offer some qualified empirical support that anti-trafficking and anti-prostitution 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 racialized persons, migrants, same-sex and gender non-binary sex workers). This finding is consistent with other critical anti-trafficking scholarship in Canada (see, e.g., Burke Reference Burke, Durisin, van der Meulen and Bruckert2018; Chu, Clamen, and Santini Reference Chu, Clamen and Santini2019; Hunt Reference Hunt2015; Kaye Reference Kaye2017; Kempadoo et al. Reference Kempadoo, McFadyen, Pilon, Sterling and Mackenzie2017; Lam Reference Lam2018; Maynard Reference Maynard2017; Roots Reference Roots2018) and in other countries (see, e.g., Faulkner Reference Faulkner2018; Kempadoo Reference Kempadoo2016; Kinney Reference Kinney and Gui2015; O’Brien Reference O’Brien2016; Shih Reference Shih2016; Soderlund Reference Soderlund2005; Srikantiah Reference Srikantiah2007). It is also consistent with more general criticisms of media outlets, such as the Toronto Star, for their overt racialization of news reports naming the race of Black suspects while not naming the race of White suspects who are wanted by the police (English Reference English2016), and broader critical race analyses of the mainstream media (e.g., Jiwani Reference Jiwani2009; Tator and Henry Reference Tator and Henry2000).

It remains deeply troubling that, in the twenty-first century, the mainstream media and the criminal justice system in Canada appear to operate on and perpetuate racialized and gendered perpetrator and victim myths, stereotypes, and hierarchies. Perceptions and experiences of racial—alongside gender, sexuality, economic, citizenship, and occupational—bias have significant adverse consequences, especially for the dignity, equality, liberty, security, mobility, labour, and access-to-justice rights of Indigenous, Black, and other racialized and historically marginalized communities who are simultaneously over and under policed and prosecuted. Such perceptions and experiences contribute to a profound sense of distrust by these same communities in the Canadian criminal justice system (see, e.g., Kaye Reference Kaye2017; Martin and Walia Reference Martin and Walia2019; Maynard Reference Maynard2017) and potentially infringe an array of internationally and domestically protected legal and human rights, including, at a minimum, the right to a fair trial, liberty and personal security rights, equality rights, and rights of non-discrimination. Such media depictions are known to influence community perceptions, especially of race and crime (English Reference English2016), and policymakers and public policy, extending to funding for non-government and community-based organizations (see, e.g., De Shalit, Heynen, and van der Meulen Reference De Shalit, Heynen and van der Muelen2014).

Accordingly, we join various other critical race and feminist scholars, activists, and legal and human rights entities in calling on Canada to collect and publish race-disaggregated crime and victimization data so that all stages of criminal justice decision-making can be properly scrutinized and challenged (see, e.g., African Canadian Legal Clinic 2017; Owusu-Bempah and Wortley Reference Owusu-Bempah, Wortley, Bucerius and Tonry2014; Reasons et al. Reference Reasons, Hassan, Ma, Monchalin, Bige, Paris and Arora2016; UN Committee on the Elimination of Racial Discrimination. 2017; UN Working Group on Persons of African Descent 2016/2017). We also support other recommendations to address ongoing individual and systemic—especially anti-Black, anti-Indigenous, and anti-Muslim—racism in Canada, for example by enacting explicit anti-racism laws like the Ontario Anti-Racism Act (2017). Further, we join recommendations that all Canadian institutions, including the media, the police, the prosecution service and the judiciary, be demographically diverse and representative; that Canada research and address the root structural causes of the disproportionate victimization and criminalization of Indigenous, Black, and other racialized communities; that Canada fully implement the recommendations of international bodies and national and provincial/territorial commissions of inquiry, especially those on systemic racism and racial profiling, truth and reconciliation, and missing and murdered Indigenous women and girls; and that Canada (and the provinces/territories) mandate unconscious bias and locally-specific cultural competency training for all those who work in the media and the criminal justice system.

As a matter of law, the media and the police have an obligation to ensure they provide factually accurate and unbiased information to the public and they—along with the Canadian state—must be held accountable for demonizing and rendering invisible or disposable the members of Indigenous, Black, and other racialized and marginalized communities. Moreover, as was done in the Bedford legal challenge, we suggest the enhanced use of social science empirical evidence and/or experts in criminal trial processes to challenge highly problematic, racist, gender-biased, heteronormative, misogynist, and essentialist stereotypes about the commercial sex sector and its participants, while recognizing the complexities of expert evidence in criminal and constitutional litigation (Lowman Reference Lowman2016). More generally, we support Indigenous decolonization and Black liberation movements and an ever-growing body of international and Canadian experiential persons, activists, academics, and human rights and health organizations calling for the decriminalization and destigmatization of sex work and the full extension of human and labour rights to sex workers.