My name is Frances Mahon, and thank you very much to the committee for inviting me to discuss how human trafficking enforcement is working in Canada. We applaud the government for giving this urgent issue the attention it deserves.
I'm speaking to you today from Vancouver, British Columbia, and I would like to acknowledge that these are the unceded and traditional territories of the Squamish, Musqueam, and Tsleil-Waututh peoples.
I'm a criminal, immigration, and refugee lawyer. I frequently represent individual sex workers, as well as sex work advocacy organizations like Pivot Legal Society. In 2014 I appeared as a witness to the Senate standing committee considering Bill C-36, which overhauled the prostitution provisions in the Criminal Code.
Pivot Legal Society is a human rights organization in Vancouver. One of its primary activities is working with communities of sex workers in Vancouver and elsewhere, and bringing this community perspective to lawmakers as part of its law reform work. Pivot intervened at the Supreme Court in Bedford, and also provided submissions to the House of Commons and to the Senate considering Bill C-36.
We urge this committee to develop a nuanced, evidence-based, and effective strategy that takes into account both the human rights and dignity of sex workers and the need to protect vulnerable groups from trafficking. Creating an environment where sex workers can enjoy respectful and trusting relationships with law enforcement will facilitate the investigation and prosecution of genuine cases of trafficking.
I'm going to speak to you on two issues. The first is the lack of a clear definition for human trafficking that complies with international standards. The second is very close to my heart, and one I frequently encounter with my clients, which is abusive police and immigration enforcement of sex workers and trafficking victims under the guise of human trafficking investigations.
On the first issue, I want to address a point Mr. Warrack made, which is around the lack of statistics on human trafficking in Canada. I believe this is exacerbated by the fact that we do not have a clear definition of human trafficking. We often don't know what's being referred to—labour exploitation, sex trafficking, or indeed consensual adult sex work. This committee must give thought to what human trafficking is, and what it is not.
I represent both sex workers and victims of exploitation, and I appreciate that this is a complex issue. Individual situations may not always be so clear-cut between what is truly consensual and what is not, but the current criminal law framework for both sex work and human trafficking has a detrimental impact on the most vulnerable members of our society, particularly indigenous and immigrant individuals.
Canada's human trafficking law is much broader than the internationally accepted definition of human trafficking, and may, in addition to catching victims of human trafficking, also criminalize sex workers and third parties who are legitimately working in the trade as consenting adults.
I would like to draw the committee's attention to the definition of human trafficking, as provided by the United Nations protocol to prevent, suppress, and punish trafficking in persons. This definition requires an element of coercion for the recruitment and movement of persons for the purposes of labour exploitation.
The crime of human trafficking in Canada does not actually require a coercive element, and this significantly widens the net in terms of who may be caught up in it. For example, simply moving a person, if it's done to facilitate their exploitation, could be enough to find criminal liability. This matters because it creates the possibility that victims of trafficking may themselves be criminalized. I would like to refer you to the testimony of Ms. Lori Anne Thomas, who spoke to you on May 22 about how one of her clients was charged with human trafficking despite being herself a victim.
Although the crime of human trafficking requires an element of exploitation, this does not solve the problem, because exploitation as defined also does not require an element of coercion. No evidence of the victim's actual state of mind or experience is required. This has the potential to remove a victim's autonomy and experience from the process, but it can also criminalize third parties who are legitimately working with individuals in the sex trade.
Now I'd like to move on to the impacts of aggressive human trafficking enforcement on both victims of trafficking and people who are working in the trade.
It's an unfortunate reality, and something that I'm frequently consulted on, that both sex workers and victims in trafficking are the victims of crime because they're experiencing harassment and abuse from clients, they've been robbed at work, or they're just dealing with employment-related issues that don't rise to the level of trafficking. The problem is that they're afraid to make police complaints because of the uncertainty around the legality of their work and concerns about drawing attention to immigration status or to their fellow workers. This is especially unfortunate because it's people in the industry who are the best placed to identify victims of trafficking and bring that to the attention of law enforcement.
The problem is exacerbated by the fact that police enforcement often brings along the Canada Border Services Agency to human trafficking investigations, which can result in deportation of victims of trafficking out of Canada, as well as deportations for people who are working here by their own consent. This is something that I have also seen a lot of in my experience as a lawyer, both in Vancouver and in Toronto.
Even when it doesn't result in deportations or loss of immigration status, it does serve to drive the clients away, meaning that those who are paid per client, rather than per hour, may have to work longer, and it leaves sex workers with pervasive anxiety about their work.
These intrusive police strategies erode trust between victims and sex workers and the police. I'm going to give you a few examples of these abusive police tactics that I've come across in my own experience or that have been the subject of some media.
In Operation Northern Spotlight, which I'm sure this committee is familiar with, 11 people were arrested during a sting in April 2015. These people were held without the ability to contact anyone else and ultimately deported without having received any assistance whatsoever from community organizations. Because the police used a very common tactic, which is arranging fake dates with sex workers in order to gain access to their workplaces, which are often their homes, Operation Northern Spotlight and similarly styled investigations continue to generate fear and mistrust.
Migrant sex workers have also experienced a great deal of abuse at the hands of the police. More than 40% of women contacted by the Toronto-based organization Butterfly, which works with migrant sex workers, reported that they had experienced abuse, such as seizing condoms as evidence, or in some cases, police pulling up their dresses to see if they were wearing underwear as proof of whether they were working as sex workers.
As a local example, here in Vancouver we had a disgraced detective from the counter-exploitation unit, who recently pleaded guilty after he sexually assaulted minor victims of sexual exploitation and human trafficking.
It's not surprising that in a survey conducted by SWAN, here in Vancouver, 95% of the immigrants they work with stated that they would not contact law enforcement if they experienced a violent crime.
The human trafficking investigations and prosecutions also lead to dangerous assumptions of guilt by association. Immigrant sex workers in particular, who may not have very good English or French skills, depend on the assistance of their others, whether they're colleagues or their managers, in order to make their work both safe and viable. For example, they rely on others to help them place ads so that they do not have to be based on the street, and to find work spaces so they can be working indoors, which has been accepted by the Supreme Court of Canada as by far the safest way to exist in the sex trade. However, under the trafficking and the procuring laws, they fear implicating their friends and their co-workers, who could face serious charges merely for being an associate.
I'll give you an example of a report that Pivot received from Butterfly regarding a woman who was detained for two weeks by the police as a trafficked person despite her insistence that she was working voluntarily.
She was never criminally charged, but her phone was seized as evidence. She was forbidden from making calls to anyone including legal counsel, and the police seized $10,000 of her money as evidence as part of their ongoing investigation. It has not been returned to her.
After a search of her hotel room, the police came across a photo of her and her friend and arrested her friend. Although that person was eventually released, she did lose her housing in the process. During that process, the sex worker herself actually disclosed to the police that she had recently been sexually assaulted and robbed, but no investigation was undertaken into the crimes committed against her.
This is unfortunate, and it's very common in my experience for both sex workers and victims of crime to have these experiences with law enforcement. I'm frequently contacted by people who are experiencing harassment or who have been assaulted but are too afraid to go to the police to make a complaint. In some cases, I've been retained to actually make the complaint myself to the police on behalf of third parties. Not every police officer is willing to accept such a complaint from a lawyer who is not actually involved in the crime. Again, this leads to under-reporting and under-investigation of crimes that are actually occurring against sex workers and victims.