Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYQ. Oh, okay so when he is out he run away. Oh, okay I get it . . . sorry.A. And okay when he is out when the day when supposed to be in the court he ran awaybecause he saw us.- female off-street in-call sex workerDifficulty obtaining witness testimonyAnother challenge facing law enforcement agencies is the difficulty of obtaining witness testimony.In October 2001, police infiltrated a Vancouver prostitution ring involving eleven Malaysianwomen, at least five of whom reported being deceived by traffickers before their arrival in Canada. Itwas discovered that all eleven women had been subjected to slave-like conditions while working inCanada. Nevertheless, none of the victims were willing to testify against their traffickers, and Canadianauthorities deported them to Malaysia. 41IRPA gives witnesses very little incentive to testify about being trafficked into Canada becausethe possibility of deportation to her country of origin remains even if a sex worker testifies in legalproceedings. Further, she could face retaliation by her traffickers or their associates in Canada or inher county of origin. Finally, the social stigma of being engaged in prostitution, regardless of herconsent or lack thereof, increases her fear of deportation. A woman who has been trafficked and thenmust return to her country of origin may be ostracized by her own community and family.In order to protect victims of trafficking and encourage their testimony, Canada could providevisas for potentially trafficked persons, similar to the arrangements made by Australia in 2003. 42Australia’s initiatives include the provision of a permanent visa for trafficked persons in certaincircumstances, a comprehensive victim support scheme that includes assistance with accommodation,expenses, training and access to social support, legal, medical and counselling services. Further,reintegration assistance measures have been created for trafficking victims who are returned to sourcecountries in South East Asia, spearheaded by AusAID and the International Organization for Migration(IOM).Changes to anti-smuggling and trafficking lawsImmigration and Refugee Protection ActIRPA was Canada’s first legislation to specifically address the issue of trafficking in persons. IRPAdefines the offence of trafficking as organizing “the coming into Canada of one or more persons bymeans of abduction, fraud, deception or use or threat of force or coercion.” 43 Under IRPA, traffickingin persons includes “their recruitment or transportation and, after their entry into Canada, the receiptor harbouring of those persons.” 44 The maximum punishment under IRPA is life imprisonment, afine, or both. 45 Also, the courts may order forfeiture of any property seized in relation to the offence. 46The first charges under IRPA for trafficking in persons were laid in April 2005. 47Under IRPA, a person without Canadian citizenship is inadmissible to Canada on grounds oforganized criminality which means being found to be a member of an organization that is believed41 M. Trepanier, “Trafficking in Women for Purposes of Sexual Exploitation: A Matter of Consent?” Canadian Woman Studies,Migration, Labour and Exploitation: Trafficking in Women & Girls, Volume 22, Nos. 3, 4, Spring/Summer 2003.42 HumanTrafficking.org: A Web Resource for Combating Human Trafficking. Academy for Educational Development, Washington,DC. Last modified August 2005, online: http://www.humantrafficking.org/countries/eap/australia/bestpractices.html.43 IRPA, Article 118(1).44 IRPA, Article 118(2).45 IRPA, Article 120.46 IRPA, Articles 118(1) and 137(1).47 Legislative Summary, Bill C-49: An Act to Amend the Criminal Code (Trafficking in Persons), Prepared by Laura Barnett, Lawand Government Division, 7 July 2005, online:http://www.parl.gc.ca/common/Bills_ls.asp?Parl=38&Ses=1&ls=C49#12backgroundtxt.202
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformto be or to have been engaged in activity such as people smuggling, trafficking in persons or moneylaundering. 48The Criminal Code of Canada and Bill C-49The Criminal Code of Canada (“Criminal Code”) currently prohibits trafficking in persons insections which include “offences such as fraudulent documentation, prostitution-related offences,physical harm, abduction and confinement, intimidation, conspiracy, and organized crime.” 49 BillC-49, which received Royal Assent on November 25, 2005, adds to the existing Criminal Code provisionsby targeting specific forms of exploitation and abuse that are inherent in trafficking. Bill C-49goes beyond the issue of international trafficking to address trafficking of persons within Canada.Trafficking in personsBill C-49 creates a new Criminal Code provision, s. 279.01(1), which treats the offence of “trafficking”as any circumstance where a person “recruits, transports, transfers, receives, holds, concealsor harbours a person, or who exercises control or influence over the movements of a person, for thepurposes of exploiting them or facilitating their exploitation.” 50 If convicted of this offence, a personmay be imprisoned for up to 14 years, or for life if the person also “kidnaps, commits an aggravatedassault or sexual assault against, or causes death to the victim during commission of the traffickingoffence.” 51Profiting from traffickingThe new Criminal Code s. 279.02 creates the offence of economic gain obtained by trafficking inpersons: “A person who receives a material benefit, financial or otherwise, knowing that it results fromtrafficking in persons, has committed an offence and may be imprisoned for up to 10 years.” 52Withholding or destroying documentsThe new Criminal Code s. 279.03 outlines the offence of withholding or destroying documentsincluding identity, immigration, or travel documents in order to facilitate the trafficking ofpersons, carrying a penalty of imprisonment for up to five years. For the purposes of s. 279.03, thedocument(s) in question would not need to be either authentic or Canadian. 53RestitutionThe Criminal Code currently allows for restitution to a victim of bodily harm 54 Bill C-49 extendsrestitution to victims subjected to psychological harm. 55Protection of vulnerable witnessesBill C-49 provides for enhanced witness protection where the witness is under the age of 18 andthe accused is charged with any trafficking offence. 56 Such enhanced witness protection would includeexpansion of a judge’s ability to exclude the public from the courtroom, and allow a witness to testifyoutside the courtroom or behind a screen so as to be able to avoid seeing the accused. 5748 IRPA, Article 37(1)(b).49 Supra note 47.50 Ibid.51 Ibid.52 Ibid.53 Ibid.54 Criminal Code, section 738(1)(b).55 Bill C-49: An Act to Amend the Criminal Code (Trafficking in Persons), Royal Assent: 25 November 2005, S.C. 2005, c. 43,clause 7 [hereinafter referred to as Bill C-49].56 Supra note 47, clause 4.57 Supra, note 47.203
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