Canadian Human Trafficking Prosecutions and Principles of Fundamental Justice: A Contradiction in Terms?

By Hayli Millar and Tamara O’Doherty

This report continues our ongoing longitudinal work (2014-2020) empirically examining the charging and prosecution of Canadian trafficking in persons offences. In addition to documenting the complex legal issues and challenges that arise in enforcing anti-trafficking laws, we focus our attention on the application and interpretation of law. Our findings solidify scholarly concerns about the effects of ongoing conflations of sex work and human trafficking, and the expansion of criminalization and other forms of legal regulation related to the commercial sex sector. Besides affirming the known list of harmful effects of legislative expansionism for the persons subjected to criminal and immigration law enforcement actions, our findings suggest that the criminalization of sex work via anti-trafficking law raises other potentially vexed legal issues. In this report, we outline several findings that expose concerns about the judicial interpretation of the elements of trafficking offences, the inherent difficulties with witness credibility and victim treatment in courts, problematic evidentiary requirements specific to anti-trafficking laws, and the use of expert opinion evidence in trials. We also argue that Canadian anti-trafficking laws potentially infringe fundamental principles of justice such as the rule of law and the principle of res judicata. These findings demonstrate a troubling trend towards increasing barriers to justice for sex workers and lay bare the intersecting effects of crimmigration, the stigmatization of commercial sex, and inequality in labour rights. To reduce labour exploitation, action must be taken to address the structural causes for precarious working conditions across all forms of labour.

Vancouver, BC: International Centre for Criminal Law Reform, 2020. 122p.