The Canadian Criminal Code Offence of Trafficking in Persons: Challenges from the Field and within the Law

Abstract

Despite early ratification of the United Nations Trafficking in Persons Protocol, the Criminal Code offence of trafficking in persons in Canada has received little analytical or interpretive attention to date. Adopted in 2005, this offence has resulted in successful convictions in a limited number of cases and criminal justice authorities have continued to rely on alternate or complementary charges in cases of human trafficking. In particular, prosecutions for cases involving non-sexual labour trafficking remain extremely low. This article provides a socio-legal examination of why the offence of trafficking in persons in Canada is under-utilized in labour trafficking cases. Based on an analysis of data generated from 56 one-on-one interviews gathered from a variety of actors involved in counter trafficking response mechanisms and a legal examination of the key components of the offence, we argue that definitional challenges have resulted in narrow understandings and problematic interpretations of the Criminal Code offence. Such narrow interpretations have resulted in restricted applicability, particularly in cases of labour trafficking. More broadly, the article points to the need to address the limitations of the Criminal Code while formulating responses to trafficking that are not dependent on criminal law.

Labour Trafficking in Canada: At the Margins of the Anti-Trafficking Efforts

“…The antitrafficking response is characterised the predominance of a crime-control approach (prosecution of traffickers and fighting irregular migration) and therefore the weak protection mechanisms for victims (Ricard-Guay & Hanley 2015). Further, labour trafficking has been overlooked (Dandurand & Chin, 2014;Fudge & MacPhail, 2009;Hastie & Yule, 2014;Kaye & Hastie, 2015;Quarterman et al, 2012;Ricard-Guay & Hanley, 2015;Sikka, 2013;Winterdyk & Reichel, 2010).…”

“…This terminology originates from the definition of procurement in prostitution. The inheritance from the legal framework and the language related to prostitution shapes the scope of the interpretation of the offence of trafficking, which tends to associate more closely trafficking to prostitution, in other words to trafficking for sexual exploitation (Kaye & Hastie, 2015).…”

“…The interpretation of the Criminal Code is still narrow. Some scholars have argued that it is not well adapted to the specifics of non-sexual forms of exploitation in trafficking, namely forced labour and/or labour exploitation (Kaye & Hastie, 2015). The absence of clear reference to the different forms of exploitation does not help in moving the understanding of TIP beyond the restrictive ambit of sexual exploitation.…”

“…Another problem relates to the scope of the interpretation and of the applicability of the criminal offence in cases of labour exploitation. As suggested by Kaye and Hastie (2015), the criminal code offence is still perceived by law enforcement and other practitioners as being less applicable to situations of labour trafficking. The terminology related to the 'exercise control over the movement of a person' originating from the definition of procurement, is a determining element of the interpretation and is still closely associated with sexual exploitation (Kaye & Hastie, 2015;Sikka, 2013).…”

“…The study is based on 79 semi-structured interviews with 90 stakeholders and practitioners from different sectors: community, law enforcement, social services, and health sectors. Further, the paper builds on recent research on trafficking in Canada, especially the literature examining labour trafficking (CWF, 2014;Fudge & MacPhail, 2009;Hastie & Yule, 2014;Kaye & Hastie, 2015;Quarterman, Kaye, & Winterdyk, 2012;RCMP, 2010RCMP, , 2013Ricard-Guay & Hanley, 2015) The first part of this paper will present the development of the Canadian anti-trafficking efforts and policies. The second part will examine the challenges in addressing labour trafficking within the current Canadian framework.…”