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Racialized, Gendered, and Sensationalized: An examination of Canadian anti-trafficking laws, their enforcement, and their (re)presentation

Published online by Cambridge University Press:  13 April 2020

Hayli Millar
Affiliation:
PhD Associate Professor School of Criminology and Criminal Justice University of the Fraser Valleyhayli.millar@ufv.ca
Tamara O’Doherty
Affiliation:
PhD Lecturer, School of Criminology Simon Fraser Universitytamara_odoherty@sfu.ca
Corresponding
Rights & Permissions[Opens in a new window]

Abstract

In Canada, there are persistent allegations and some empirical evidence suggesting racialized police bias; certain (non-White) groups appear to face over-enforcement as criminal suspects and under-enforcement as victims. Yet, it is challenging to prove or disprove these claims. Unlike other countries, where governments routinely publish police-reported crime and criminal court data identifying the race/ethnicity of criminal suspects and victims, Canada maintains a ban on the publication of such data. In this article, using an intersectional and critical analysis, we examine 127 prosecuted (predominantly domestic sex) trafficking cases and explore related claims of racial and gender bias together with sensationalism in the enforcement of Canadian anti-trafficking in persons laws. Our findings align with other empirical research observing the racially selective identification and prosecution of sex trafficking cases through a heteronormative and gender binary lens. Whether real or perceived, racial—alongside gender, sexuality, economic, citizenship, and occupational—bias has significant adverse consequences for the equality, liberty, security, mobility, labour, and access to justice rights of the Indigenous, Black, Arab/Muslim and other racialized communities being policed. Our data reveal a clear and pressing need to publish race-disaggregated crime and criminal court data and to challenge deeply ingrained stereotypes using various means.

Résumé

Résumé

Au Canada, il y a des allégations persistantes et des preuves empiriques suggérant des préjugés racistes de la part de la police; certains groupes (non blancs) semblent être confrontés à une application excessive de la loi comme suspects et à une application insuffisante comme victimes. Pourtant, il est difficile de prouver ou de réfuter ces allégations. Contrairement à d’autres pays, où les gouvernements publient régulièrement les données de la police et des tribunaux pénaux identifiant la race/ethnicité des suspects et des victimes, le Canada maintient une interdiction de publication de ces données. Dans cet article, à l’aide d’une analyse intersectionnelle et critique, nous examinons 127 cas de trafic (principalement le trafic sexuel en territoire national) ayant fait l’objet de poursuites judiciaires et explorons les allégations connexes de préjugés raciaux et sexuels, ainsi que le sensationnalisme dans l’application des lois canadiennes contre la traite des personnes. Nos conclusions s’alignent sur d’autres recherches empiriques observant l’identification et la poursuite raciales sélectives des cas de trafic sexuel à travers une lentille binaire hétéronormative et sexospécifique. Qu’elle soit réelle ou perçue comme telle, la race – à côté du sexe, de la sexualité, de l’économie, de la citoyenneté et des préjugés professionnels – a des conséquences négatives importantes sur l’égalité, la liberté, la sécurité, la mobilité, le travail et les droits d’accès à la justice des communautés autochtones, noires, arabes/musulmanes et autres communautés racialisées qui sont contrôlées par la police. Nos données révèlent un besoin clair et urgent de publier des données sur la criminalité et les tribunaux pénaux ventilées par race et de remettre en question des stéréotypes profondément ancrés.

Type
Articles
Copyright
© Canadian Journal of Law and Society / Revue Canadienne Droit et Société 2020

Introduction

Long-standing allegations and a growing body of legal and empirical evidence suggest there is racializedFootnote 1 police bias and systemic racism within the Canadian criminal justice system resulting in over-enforcement against certain groups as criminal suspects, especially Indigenous and Black persons, and under-enforcement regarding victimization of these same groups (British Columbia Civil Liberties Association (BCCLA) 2010; Gittens and Cole Reference Gittens and Cole1995; Jiwani Reference Jiwani and Perry2016; Lewis Reference Lewis1992; Maynard Reference Maynard2017; McNeilly Reference McNeilly2018, 2019; Monchalin Reference Monchalin2010; Ontario Human Rights Commission (OHRC) 2003, 2017, 2018; R v Barton (2019); R v Le (2019); R v Spence (2005); R v Williams (1998); Sinclair Reference Sinclair2018; Tanovich Reference Tanovich2008; Tulloch Reference Tulloch2018; Union of BC Indian Chiefs and BCCLA 2018; Wortley Reference Wortley2019). Other scholars have documented discriminatory criminal justice practices and a troubling rise in the racial profiling of Arab, Muslim, and South Asian criminal suspects post-9/11 (Bahdi Reference Bahdi2003; Foster, Jacobs and Siu Reference Foster, Jacobs and Siu2016; Nagra and Maurutto Reference Nagra and Maurutto2016; Pratt and Thompson Reference Pratt and Thompson2008). The limited ethnoracialFootnote 2 crime and victimization data that is publicly available mainly concern Indigenous persons or are typically in aggregate form (e.g., categorizing “visible minorities” as a single group). However, due to a de facto ban on publication of the race/ethnicity of criminal suspects and victims—and what appears to be the deliberate suppression of the publication of such data by Canadian police agencies—it is exceptionally challenging to prove or disprove claims about real or perceived racial bias in Canadian law enforcement and the administration of criminal justice (Foster and Jacobs Reference Foster and Jacobs2017; Millar and Owusu-Bempah Reference Millar and Owusu-Bempah2011; Mosher and Mahon-Haft Reference Mosher, Mahon-Haft and Kalunta-Crumpton2010; 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).Footnote 3

In the absence of nationally produced and publicly accessible ethnoracial-disaggregated crime and victimization data across the criminal justice process, and given a lengthy history of embedded gendered and racialized differences in international and national laws regulating “prostitution”Footnote 4 and trafficking in persons (see, e.g., Balgamwalla Reference Balgamwalla2016; Bernstein Reference Bernstein2010; Doezema Reference Doezema2010; Gallagher Reference Gallagher2010; Kaye Reference Kaye2017; Kempadoo Reference Kempadoo, Kempadoo, Sanghera and Pattanaik2005; Raguparan Reference Raguparan2019; Weitzer Reference Weitzer2011), we sought to critically analyze perceptions of racial and gender bias and sensationalism in the enforcement and prosecution of contemporary Canadian anti-trafficking and anti-prostitution laws by examining 127 prosecuted trafficking (N = 87) and commodification and prostitution (N = 40) cases. We include comparative data on both anti-trafficking and anti-prostitution laws while rejecting the conflation of human trafficking and sex work.

Our intersectional analysis of 127 prosecuted cases provides tentative empirical support for the apparent racialized, gendered, and sensationalistic portrayal of the enforcement of anti-trafficking laws. Our findings affirm our earlier research that Canadian laws and law enforcement efforts follow a largely reductive narrative that erroneously treats sex work as synonymous with trafficking in persons irrespective of individual agency or consent (Millar and O’Doherty Reference Millar and O’Doherty2015). Our findings also reveal a prevailing stereotype of a (racially threatening, male) villain, an iconic (visible and deserving White) female who is an unwitting victim, a (predominantly White) criminal justice system, and White victim advocates as benevolent rescuers that have been similarly identified for other countries (see, e.g., Faulkner Reference Faulkner2018; Kinney Reference Kinney and Gui2015; O’Brien Reference O’Brien2016; Shih Reference Shih2016; Soderlund Reference Soderlund2005; Srikantiah Reference Srikantiah2007). These findings suggest the need to challenge whether the Canadian criminal justice system effectively “protects” the safety and security interests of racialized and marginalized groups, especially migrant, Indigenous and Black sex workers; indeed, it appears virtually impossible for the state to continue down its path of targeted criminalization and meet its parallel international and domestic legal commitments to ensure a range of protected human rights and freedoms, including equitable access to justice.

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).

Methods

In our original 2015 study, we examined the introduction and enforcement of Canadian anti-trafficking laws from 2001 to 2014. Among our findings, we documented concerns about inadequate empirical evidence for the creation and amendment of these laws; the conflation of human trafficking with commercial sex work, where sex work is viewed as inherently violent and exploitive; the misrepresentation, especially exaggerated claims, of human trafficking cases by the media, government agencies and non-government organizations; the heteronormative and gendered (binary) nature of prosecuted accused and their alleged victimsFootnote 9; and the apparent sensationalistic and racialized media coverage of human trafficking arrests and prosecutions. Since our initial report, we have undertaken to verify subsequent prosecuted trafficking cases and to more systematically examine the sensationalistic, gendered and racialized dimensions of the aggregate eighty-seven prosecuted cases (2001 to 2018). We include an additional forty prosecuted prostitution and commodification cases (2015 to 2018) for comparative analysis. Additionally, we incorporate Statistics Canada gender-disaggregated police-reported crime data to illustrate the changing and gendered dimensions of police charging practices for trafficking, prostitution and commodification offences.Footnote 10

Without government-reported ethnoracial disaggregated crime and criminal court data, and given that we were not employing a method whereby we could ask participants to self-identify their race or ethnicity, we visually and textually examined mainstream (mainly) print media coverage, especially the use and non-use of photographic images of accused and the associated headlines and news stories.Footnote 11 We additionally examined the published (reported) court proceedings for textual references to an accused or victim’s citizenship status, country of origin, and/or ethnoracial identity. In reported court proceedings, we expected references to citizenship status and country of origin or ethnoracial identity if the accused or the victim were facing potential immigration consequences, especially in transborder trafficking cases. We anticipated that ethnoracial identity might be referenced if the accused was Indigenous or Black because of Gladue and cultural impact assessment reports that seek to address historic and contemporary structural disadvantage and systemic racism in the criminal justice system. In view of the claimed overrepresentation of Indigenous women and girls as trafficking victims (see, e.g., Public Safety Canada 2012; Royal Canadian Mounted Police (RCMP) 2010, 2014), we anticipated references to the Indigeneity of victims as an aggravating factor in sentencing. Because criminal courts can prohibit the publication of the identity of sexual violence victims and now uniformly apply publication bans in trafficking cases, identifying victims by initials only, we relied on media published photos of victims who have voluntarily self-identified as being trafficked and publicly disclosed their victimization. We also relied on the associated victim imagery the media used in relation to the named criminal accused across the 127 trafficking, commodification, and prostitution cases.

As with all such research, there are limitations associated with our data sets and analysis, especially our visual as opposed to self-identification of ethnoracial identity. Methodologically in line with others who engage in similar work (Roots Reference Roots2018),Footnote 12 we present our findings as tentative, yet compelling data. Our data raises questions about the perceived racialization and sensationalism used by the media and the police, who often actively seek press coverage of their arrests and charges in anti-prostitution and anti-trafficking enforcement campaigns and/or who provide suspect photos and information to the media. While there may be alternative interpretations of these data, when viewed in relation to emerging empirical research elsewhere, this data points to the alarming and structurally embedded targeting of racialized persons for criminalization under domestic anti-trafficking laws.

Given recently released human rights and independent academic reports and human rights tribunal decisions documenting racial profiling, systemic bias, and structural violence by Canadian police and the Canadian criminal justice system (see, e.g., Campbell v Vancouver Police Board No 4 2019; National Inquiry into Missing and Murdered Indigenous Women and Girls 2019; OHRC 2018; Commission des droits de la personne et des droits de la jeunesse (Québec) 2011; Tulloch Reference Tulloch2018; Wortley Reference Wortley2019), we offer what we believe is a timely and important contribution. We are vitally concerned about sustained perceptions and experiences of individual and systemic racism and structural and other forms of violence directed against Indigenous, Black and other persons of colour, either as criminal suspects or as victims, especially missing and murdered Indigenous women and girls, Black and other sex workers of colour, and persons who lack citizenship status (Amnesty International 2004; CASWLR and Pivot Legal Society 2016; Human Rights Watch 2013, 2017; Inter-American Commission on Human Rights 2014; Lam Reference Lam2018; Maynard Reference Maynard2016, Reference Maynard2017; Native Women’s Association of Canada 2013; Oppal Reference Oppal2012; UN Special Rapporteur on the Rights of Indigenous Peoples 2014; UN Special Rapporteur on Violence against Women, its Causes and Consequences 2018).

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.

Footnotes

1 We draw on Jiwani’s (Reference Jiwani and Perry2016) use of the terms “criminalization,” “racialization,” and the “racialization of crime” to refer to socially constructed processes whereby a dominant group (in this case, White European Canadians) use their political and economic power to systematically associate the perceived and presumed differences of particular population groups (Indigenous persons, Black and other persons of colour, non-citizens, immigrants) with negatively valued characteristics and behaviours, resulting in their over-policing and overrepresentation in the criminal justice system.

2 We use the term “ethnoracial” to reflect the Canadian government’s reluctance to use the term “race” and its preference for “ethnicity,” ostensibly to disguise basic racial power relations in society (Owusu-Bempah and Wortley Reference Owusu-Bempah, Wortley, Bucerius and Tonry2014). Canada identifies three main population groups: Aboriginal or Indigenous persons, Caucasians, and the contentious category of “Visible Minorities,” which the federal Employment Equity Act (section 3) defines as persons who are “non-Indigenous and non-Caucasian in race or non-White in colour.”

3 See especially Owusu-Bempah and Millar (Reference Owusu-Bempah and Millar2010:97–100) on the origins of the de facto publication ban on race-disaggregated crime data in the early 1990s.

4 We use the terms, “human trafficking” and “trafficking in persons” interchangeably. Given the associated stigma, we reluctantly use the terms “prostitute” and “prostitution” to align with dominant legal, political, and media discourses. Where possible, we use the alternatives sex worker and sex work.

5 Section 286.1 for the first time criminalizes purchasing sexual services from an adult. Section 286.4 newly criminalizes knowingly advertising sexual services. The PCEPA replaces a constitutionally impugned “living on the avails” offence with receiving a material benefit (section 286.2) and re-enacts a procuring offence (section 286.3). The commodification offences are categorized as “offences against the person and reputation” and are now considered to be violent offences for statistical purposes. The PCEPA re-criminalizes publicly selling sexual services in at least two circumstances: offering, providing, or purchasing sexual services that stops or impedes traffic or takes place in a place where children are likely to be present as summary conviction offences (section 213(1)). Selling sexual services may also be criminalized in some circumstances under the procuring and receiving a material benefit offences (Sterling and van der Meulen Reference Sterling and van der Meulen2018). For various critiques, see, e.g., Bruckert Reference Bruckert2015; Davies Reference Davies2015; Durisin, van der Meulen and Bruckert Reference Durisin, van der Meulen and Bruckert2018; Galbally Reference Galbally2016.

6 The new PCEPA commodification offences have mandatory fines as the only available punishment for purchasing adult sexual services, presumably based on a gendered assumption that most—if not all—purchasers are cisgender, straight men who have the economic capacity to pay a fine.

7 We acknowledge and thank our first anonymous reviewer for expressing this insight so clearly and have used some of the suggested phrasing here. We are profoundly grateful to both reviewers whose comments substantially improved our manuscript.

8 Police agencies frequently publish their own data via the mainstream and social media, typically indicating that only a few minors or exploited persons are actually “rescued” despite interviewing often hundreds of sex workers. These same agencies also note an unwillingness of most sex workers to cooperate with police, while failing to recognize the many reasons why, other than a concern for third-party retaliation. Other reasons may include a lack of trust in the police and the criminal justice system; the persistent stigmatization of sex workers, frequently treated as non-ideal victims and disbelieved when reporting crimes to the police; and individual and structural violence directed by the police and other law enforcement agencies against Indigenous, Black, and other racialized and gendered communities, including sex workers, migrants, asylum seekers, and refugees (see, e.g., Bruckert and Hannem Reference Bruckert and Hannem2013; Burke Reference Burke, Durisin, van der Meulen and Bruckert2018; Krüsi, Kerr, et al. Reference Krüsi, Kerr, Taylor, Rhodes and Shannon2016; Lam and Lepp Reference Lam and Lepp2019; Maynard Reference Maynard2017, Reference Maynard, Durisin, van der Meulen and Bruckert2018).

9 For simplicity, we use the term “victim” to refer to both alleged victims (complainants) and cases involving a legal finding that a victim was trafficked.

10 The police-reported crime statistics are publicly accessible via Statistics Canada (CANSIM). We also requisitioned gender-disaggregated data for charged adults and youths (data on file with the authors).

11 Our media analysis involved an Internet search for news stories and images for all cases with a named suspect and a self-disclosed victim. We searched both English- and French-language sources, focusing on mainstream print media and some video coverage from national news outlets (such as the Canadian Broadcasting Corporation, Canadian Television Network, Global News Network), and local news outlets and newspapers (such as the Montreal Gazette, Toronto Star, the Ottawa Citizen, the Hamilton Spectator, the Vancouver Sun, the Calgary Herald, and the Chronicle Herald). We also used police social media sources like Facebook and Twitter. Our media analysis is preliminary; a more rigorous analysis of mediatization, especially on the symbiotic or working relationships between the mainstream media and law enforcement agencies, is needed.

12 Roots (Reference Roots2018) used similar methods for analyzing Ontario cases. In view of case overlap, we relied on Roots’ (Reference Roots2018, 370–376) identification of the ethnoracial identity for three accused where Roots either observed the court proceedings or had access to court records that we were unable to access.

13 The regional concentration of trafficking charges in Ontario and Quebec varies from prostitution-related and commodification charges, which are more widely dispersed across five provinces: Ontario, Quebec, Alberta, Saskatchewan, and Manitoba. These regional variations warrant further investigation.

14 See Roots (Reference Roots2018) on the origins of the “Black male pimp” in Canadian legal culture. Notably, human trafficking law enforcement as a part of Black criminalization is simply one manifestation of a broader Western cultural trend of associating crime and danger with Blackness and Black men (see, e.g., Alexander Reference Alexander2012; Hall et al. Reference Hall, Roberts, Clarke, Jefferson and Critcher1978).

15 We found that the media published photos for thirteen of twenty-one cases involving female accused either as a primary or co-accused, almost all (eleven of thirteen) of whom appeared to be visibly White. We surmise this disparity may be because it is easier to generate (and sell) sensationalistic headlines in statistically rarer cases or because of the presumed gender-non-conformity of female accused who allegedly traffic other females.

16 The prosecuted cases suggest several possible negative legal consequences when the media and/or police make sensationalized (inflammatory) and/or misleading claims about accused, including potentially jeopardizing an accused’s constitutional right to a fair trial, change of venue requests due to adverse publicity, and tortious claims by defendants for defamation, malicious prosecution, and negligent publication. There are also potential litigation consequences concerning infringed equality rights and rights to non-discrimination based on recognized prohibited grounds under international law and the Canadian Charter of Rights and Freedoms and federal and provincial/territorial human rights laws. For example, the Ladha case received enormous media attention within Canada and internationally. Ladha was portrayed by the RCMP and the media as “enslaving” a young Tanzanian woman as her domestic helper. Ladha was acquitted of all charges and successfully pursued a civil lawsuit resulting in an out-of-court settlement that included an apology from the RCMP and the BC government for their “relentless” efforts to seize her assets and for their aggressive public narrative of the alleged enslavement (Jeong Reference Jeong2017; Ladha, Mumtaz et al. v Canada (Attorney General) and BC (R). 2015).

17 This pattern is a part of a broader historical tradition of moral crusades targeting “White slavery” (see, especially, Nagel Reference Nagel2015).

18 Selected examples include Markie Dell, whose photo and story were published and republished for the better part of a year, Timea Nagy, Debbie Cumby, Simone Bell, Jasmine Scott, and Maddison Fraser, who is deceased but whose family came forward to identify her in the media as a trafficking victim. In most of these cases, the alleged trafficker is not named so it is not possible to ascertain whether they were charged, prosecuted, or convicted of a trafficking offence.

19 See, for example, the Toronto Star series, “Beaten, Branded, Bought and Sold” http://projects.thestar.com/human-sex-trafficking-ontario-canada/, which profiles fifteen persons accused of human trafficking, eleven of whom are visibly Black men, and six alleged trafficking victims, four of whom appear to be White.

21 See, e.g., “Teen Pimps Plead Guilty in Human Trafficking Case” https://lfpress.com/news/local-news/teen-pimps-plead-guilty-in-human-trafficking-case (Sims Reference Sims2018).

22 Again, this observation is merely one example of broader systemic discrimination that occurs in intersecting ways. See Crenshaw (Reference Crenshaw1991) for a fulsome discussion of intersectionality and access to justice.

23 See especially O’Doherty and Waters (Reference O’Doherty and Waters2019), regarding the differential gender-based impacts of criminalization on sex workers generally, and Burke (Reference Burke, Durisin, van der Meulen and Bruckert2018), on the intersecting effects of citizenship, gender, and sex work.

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