Introduction
Human trafficking is a vast "and rapidly expanding” global epidemic. The U.S. Department of Health and Human Services has reported that, after drug dealing, human trafficking is tied with the illegal arms trade as the second largest criminal industry in the world today, and it is the fastest growing. The total market value of human trafficking is estimated to be in excess of US$32 billion (International Labour Office). In 2006, the UN Office on Drugs and Crime (UNODC) noted that virtually every country is affected by human trafficking.
Human trafficking happens inside, outside, and across our nation's borders.
In June, 2012, the International Justice Mission (IJM) testified before a Senate subcommittee in support of Bill C-310, a private member's bill introduced by MP Joy Smith (Kildonan-St. Paul, CPC). Bill C-310 introduced an interpretative aid for courts to provide greater clarity to the definition of human trafficking and extended its application as an extraterritorial offence. These provisions became law on June 28, 2012, after unanimous passage in both the House of Commons and the Senate.
International Justice Mission Canada is a human rights organization that secures justice for victims of slavery, sexual exploitation, and other forms of violent oppression, in partnership with U.S.-based International Justice Mission. IJM conducts its casework in countries where the public justice system is weak and the laws against crimes such as human trafficking are rarely enforced, often due to lack of resources, lack of expertise, or corruption.
Bill C-310 Amendments
The passage of Bill C-310 introduced some important amendments to the Criminal Code. The definition of "exploitation" in the human trafficking offence was amended to include an interpretative tool for courts to determine whether the crime of human trafficking has occurred. Additionally, the amendments added human trafficking and its related offences to the list of offence that, if committed outside Canada by a Canadian citizen or permanent resident, can be prosecuted in Canada.
Deterring Canadian Traffickers
Strong laws, especially ones that follow traffickers to countries where laws against trafficking are either lax or unenforced, are critical to deterring human trafficking. Trafficking, while a violent crime, is fundamentally an economic crime, based on greed. Consequently, it is highly vulnerable to the deterrent effect of law enforcement. Informed by 15 years of international casework, IJM can confirm that traffickers persist in their illicit trade as long as they conclude that their crimes will go unpunished and remain profitable. Conversely, when solid, well-enforced laws are in place, IJM has seen traffickers deterred and innocent victims protected.
For example, after just four years of concentrated IJM collaboration with Philippines law enforcement and justice officials combatting sex trafficking in Metro Cebu, the Philippines, external evaluators documented a 79% reduction in the availability of minors for commercial sexual exploitation. The project strongly suggests that the presence and enforcement of relevant laws both deters traffickers and disrupts their illicit enterprises. It shows that effective law enforcement can prevent young girls from being sold to the highest bidder in the brutal criminal business of rape-for-profit.
The extraterritorial provisions, now part of the Criminal Code, send a clear message: Canada will not condone exploitation, and Canadian citizens or permanent residents who traffic human beings will be held accountable for offences committed at home and abroad.
Supporting other countries in combatting human trafficking
Many nations, particularly in developing contexts, lack well-functioning public justice systems. The absence of adequate anti-human trafficking laws and well-resourced enforcement agencies makes it highly problematic to hold criminals to account for their crimes. A 2009 UNODC report on human trafficking noted that a staggering 40% of countries had not registered a single conviction for trafficking in persons.
Even where governments are willing to enact laws that combat these crimes, developing the infrastructure and capacity to enforce them takes time. In the interim, international criminals take advantage of countries with underperforming public justice systems to exploit millions of children, women, and men.
While delivering his decision1 in the case of Kenneth Klassen (a Canadian convicted under Canada's sex tourism legislation), BC Supreme Court Justice Cullen perceptively stated
In the absence of extraterritorial legislation, Canada would become a safer harbour for those who engage in the economic or sexual exploitation of children. . . . The nationality principle reflects Canada's clear interest in taking steps to prevent its own nationals or residents from using the advantages of Canadian nationality and residence to perpetuate the economic and/or sexual exploitation of children in other nations. (R. v. Klassen, 2008 BCSC 1762, paras. 95, 94)
Enacting and enforcing extraterritorial provisions for serious crimes such as child sex tourism or human trafficking provides protection in real-world enforcement gaps and in fragile or turbulent environments where exploiters are known to seek their prey.
Aligning Canada with international conventions
The UNODC and the Inter-Parliamentary Union maintain that addressing trafficking effectively "requires transnational responses" and that
in order to enhance the efficiency of international cooperation mechanisms, legislators should focus on the establishment of jurisdiction including on an extraterritorial basis, extradition, mutual legal assistance and law enforcement cooperation, including exchange of information.
Further, the UN Convention Against Transnational Organized Crime specifically encourages countries to implement human trafficking laws with extraterritorial dimensions.
The new amendments have brought Canada into better alignment with international conventions to which it is signatory.
Enforcing the law
The cross-party consensus in the passage of C-310 reflects the widespread view that these provisions are an important tool in combatting human trafficking.
Strong anti-trafficking laws will provide victims no protection if they are allowed to exist as "paper tigers" - criminals often operate in the space between legal pronouncement and vigilant enforcement.
In the U.S. State Department's 2011 Trafficking in Persons Report, Secretary of State Hilary Clinton rightly noted,
the true test of a country's anti-trafficking efforts is not just whether a government has enacted strong laws consistent with that approach, but whether these laws are being implemented broadly and effectively. In short, it's whether they deliver (emphasis added).
Will Canada deliver? A lesson from our sex tourism legislation
A look at Canada's record in applying other extraterritorial provisions affords important lessons for the implementation of the extraterritorial provisions of Canada's anti-trafficking laws. In 1997, Canada's sex tourism legislation (Section 7(4.1), Criminal Code) was introduced with great anticipation. Yet convictions have been few - only five since the introduction of these provisions.
In 2005, Donald Bakker was the first individual sentenced in Canada under the sex tourism law. IJM worked with the Vancouver Police Department and Ratanak International's Brian McConaghy by providing evidence collected in a Southeast Asian country that identified child victims of trafficking who had also appeared on Bakker's videotapes. Bakker subsequently pled guilty and was sentenced to 10 years in a Canadian prison for sexual offences in both Canada and in Asia.
Bakker's crimes against these girls were discovered as a result of an investigation of Bakker's abuse of several Vancouver-area prostitutes. When investigators searched for evidence associated with his crimes committed in Canada, they discovered videotapes of Bakker sexually abusing children in Cambodia.
Similarly so with the discovery of Kenneth Klassen's crimes, as outlined by B. Perrin (2010) in Invisible Chains: Canada's Underground World of Human Trafficking, which were uncovered when police intercepted a suspicious packaged addressed to Klassen, entitled "quilts" (p. 21). Hidden in amongst the quilts were DVDs with footage of Klassen sexually abusing girls between the ages of nine and 18.
Capitalizing on lax law enforcement in developing countries - and in a legal environment with no, or few, Canadian convictions of this extraterritorial offence - Bakker and Klassen presumably reasoned they would never be caught. And it is unlikely they would have been caught had they not self-documented the crimes that were subsequently discovered by Canadian authorities in the course of investigating other crimes.
Canadians engaged in child sex tourism
The 2012 TIP Report cites Canada as "a significant source country for child sex tourists, who travel abroad to engage in sex acts with children." The report recommends that Canada "increase investigations and prosecutions of Canadian child sex tourists abroad."
The low number of convictions under the sex tourism legislation should not be seen as reliable indicator of the actual number of Canadians implicated in these crimes.
Like any clandestine activity, it is of course difficult to provide a precise gauge of the number of Canadians engaging in sexual crimes abroad. However, one indicator of potential scale (albeit an imperfect one), is the number of Canadians who have requested consular assistance in dealing with charges of child sexual abuse or exploitation while outside of Canada (though it is important to note that one must not assume that every Canadian apprehended was guilty). Between 2009 and 2011, 73 Canadians abroad have been arrested for and/or charged with crimes of sexual abuse of children.2 Even if each of these charges were justly made against guilty individuals, this figure would likely account for only a fraction of the actual number of Canadians who sexually abuse children overseas.3
It is no small secret that sex tourists travel abroad because destination countries fail to effectively enforce their laws against child sexual exploitation and are unable to hold their own citizens accountable. It is even less likely, in countries where bribery and corruption run rampant, that comparatively affluent and powerful foreigners would be justly convicted and sentenced. The sex tourism legislation is in place so that Canada need not rely on the justice systems in the destination countries to bring to account our own citizens who are committing child sexual exploitation abroad. But the small number of convictions under the sex tourism legislation demonstrates the need for targeted measures that will deter individuals from committing this category of offence overseas. Effective application of the extraterritorial provisions requires investigation and enforcement measures in the countries where these crimes are being committed to uncover and bring to justice these individuals.4
Without a dedicated enforcement approach to crimes with extraterritorial provisions, convictions for these crimes will remain rare and the crimes possibly only uncovered in the course of other investigations or routine procedures, as was the case with both Klassen and Bakker.
Prosecution is possible
Australia, with a population of approximately 22 million - as compared to Canada's 34 million - has prioritized the prosecution of sex tourism. Between 1995 and 2007, 28 Australians were charged and 19 convicted of extraterritorial child sex offences.5 With a similar common law system, Australia has proven that proactive enforcement is both possible and effective. (Undertaking an in-depth case study of Australia's approach to enforcing its extraterritorial legislation may reveal some approaches Canada can adopt in its own enforcement.)
Furthermore, Bakker and Klassen (and others) were successfully tried in Canadian courts under Canada's sex tourism legislation, proving that the extraterritorial provisions can be applied (though understandably not without difficulty).6
Enforcement of the extraterritorial provisions
The lesson to be learned from Canada's sex tourism legislation is that in combination with diligent investigative measures, extraterritorial provisions can be used to hold Canadians accountable for their crimes overseas. Similarly, if Canada's human trafficking provisions are to act as a deterrent to other would-be criminals, Canada needs to prosecute human trafficking offences committed internationally by its citizens, as well as those committed domestically. This is why it is imperative that Canada prioritize the investigation of human trafficking offences and child sex tourism offences committed overseas by Canadians, and assert jurisdiction over these offences.
In June 2012, in a welcome and much-anticipated move, Canada marked its commitment to end human trafficking with the release of a National Action Plan to Combat Human Trafficking. IJM Canada supports the Plan's dedication to combatting human trafficking internationally.
The new extraterritoriality provision for the human trafficking offence, as well as the child sex tourism legislation, hold significant promise. To ensure the promise is fulfilled, IJM Canada offers the following recommendations:
- Ensure the international initiatives pertaining to law enforcement in the National Action Plan to Combat Human Trafficking include a robust focus on the application of Canada's extraterritorial provisions for the apprehension and prosecution of Canadian traffickers and child sex tourists, concentrating on the following countries: Mexico, the Philippines, Thailand, the Dominican Republic, and Cambodia.
- Ensure that the RCMP liaison officers stationed in the regions of the above countries are adequately trained and tasked with a priority mandate to monitor, investigate, and prosecute - in conjunction with local law enforcement and local NGOs - human trafficking and child sex tourism by Canadians.
IJM Canada recommends the above five countries for two reasons. First, between 2009 and 2011, Canadians were charged or arrested for child abuse, child molestation, or possession of child pornography in four of the five countries mentioned above, indicating a potential trend that these are the countries to which Canadians travel to commit child sex tourism crimes. Cambodia does not have a Canadian consulate and, as a result, no information is available for Canadians requesting consular assistance. However, both Bakker and Klassen committed crimes in Cambodia, indicating that Canadians travel to Cambodia to commit these crimes. In addition, according to the U.S. Department of State 2012 Trafficking in Persons Report, the identified countries rank in Tier 2 or the Tier 2-Watch List in their efforts to combat human trafficking: Mexico - Tier 2; the Philippines - Tier 2; Thailand - Tier 2 Watch List; Dominican Republic - Tier 2; Cambodia - Tier 2. This indicates a vulnerability to human trafficking that can be exploited by Canadian traffickers.
Additional recommendations to bolster Canada's commitment to combatting child sex tourism are as follows: Canada should adopt measures to restrict the foreign travel of convicted child sex offenders, similar to legislation in the U.K., including:
- Anyone listed on the National Sex Offender Registry for committing a sexual offence against a child must provide prior notice of his or her travel abroad, with criminal sanctions for failure to comply with that requirement. The appropriate authorities in the relevant foreign country should be notified of the offender's intent to travel there;
- Authority for courts to impose foreign travel orders restricting travel to specific countries (or banning travel anywhere other than to a specified country) where there are reasonable grounds to believe that a convicted sex offender intends to commit sexual offences against children abroad.
Conclusion
Restricting and punishing offenders who commit these crimes is imperative, both to protect the vulnerable and to maintain Canada's international reputation.
Canada is not alone in its commitment to combatting human trafficking. As UK Foreign Secretary William Hague has urged, "We must raise the cost for anyone who seeks to profit in modern day slavery. We must see more traffickers brought to justice, their crimes punished, and their victims offered support and protection."
Ensuring that Canada enforces its laws will be one critical step toward combatting this global epidemic. Executive Director for UNODC Antonio Maria Costa has stated:
Parliaments and parliamentarians have the power to prevent human trafficking by raising awareness and curbing exploitative practices. They can adopt the laws needed to prosecute traffickers and protect the rights of victims; they can also take steps to combat the crime of human trafficking at international level.
The laws have been adopted. Now it is time to enforce the laws.
Notes
1. A landmark ruling that "provides the first explicit judicial affirmation of the validity of Canada's extraterritorial child sex crime provisions under both Canadian constitutional law and international law" (B. Perrin, "Taking a Vacation from the Law? Extraterritorial Criminal Jurisdiction and Section 7(4.1) of the Criminal Code", Canadian Criminal Law Review 13:2 (Jun 2009), 175-209 at 177)
2. The charge or arrest could have been for child abuse, child molestation , or possession of child pornography. These arrests and/or charges mark an increase over numbers noted by B. Perrin in Invisible Chains: Canada's Underground World of Human Trafficking: from 1993-2008, more than 150 men, or approximately 10 men per year, requested consular assistance (at 24). In contrast, in 2009, 23 Canadians requested consular help; in 2010, 28; and in 2011, 22 (Access to Information request provided to IJM Canada and filed by D.Bramham). See also D. Bramham's six-part series in the Vancouver Sun entitled "Sex Tourism." The figures indicate that Canadians continue to travel overseas to commit these crimes and that Canada is failing to proactively enforce its sex tourism law as a deterrent. Between 2009 and 2011, most of these arrests were in the United States. Other destination countries included, among others, Argentina, Mexico, the Philippines, Cuba, Haiti, Thailand, Dominican Republic, and Costa Rica.
3. Not included in this figure is the number of individuals charged in countries where no Canadian consulate exists (such as Cambodia) or who did not request consular assistance.
4. Responsibility to prosecute lies with the destination country. Extraterritorial laws are intended to come into play when this does not occur.
5. B. Perrin in Invisible Chains: Canada's Underground World of Human Trafficking at 193.
6. For further detail on the instruments that currently exist for Canada to enforce its sex tourism law, including agreements with other countries and international conventions, see Perrin, "Taking a Vacation from the Law?"