TRAFFICKING IN PERSONS AND THE CANADIAN RESPONSE: LOOKING FOR A “VICTIM” Annuradha Sikka Thesis submitted to the Faculty of Graduate and Post-Graduate Studies in partial fulfillment of the requirements for a doctoral degree in Law Graduate Studies in Law Faculty of Law University of Ottawa Ottawa, Canada 2014 © Annuradha Sikka, Ottawa, Canada, 2014 ACKNOWLEDGEMENTS I first want to thank all of the incredible women and men who gave up their valuable time to tell me what was going on in their worlds, and for being patient with me while I sought to understand. My sincerest gratitude goes to my primary supervisor, Katherine Lippel, who has guided, counseled, cajoled, reasoned with, bribed, threatened and otherwise made sure this work kept going. Your warmth and uncanny knack to get me to see new and interesting avenues to explore were fundamental to keeping me motivated. I also wish to thank my co- supervisor Lucie Lamarche who kept me on the straight and narrow in my legal analysis at every turn, whether I liked it or not. Both of your attention to detail, rigorous analyses and high expectations held me to a standard I didn’t even know I was capable of reaching. I want to also thank the University of Ottawa, the Senate of Canada and the RCMP for providing support for my research. That funding allowed me to travel across the country hearing people’s stories and thoughts first hand, breathing life and spirit into the work. I cannot even begin to express my gratitude to my Mother who has watched me go back to school too many times to count and has helped me through each degree, hoping this is the last for once and for all. And to my sister who, having been there, provided me with a very understanding shoulder during all of the periods of panic and frustration, assuring me it was entirely normal and to be expected. And to my brother who generally provides a watchful eye even when you don’t know he’s doing it. My various furry children cannot go without acknowledgement either, since their love, their simplicity and sometimes just their sheer goofiness kept me grounded through what can otherwise be a very isolating endeavour. The friends and family who have been there to cheer me on through this period are too many to name, and I consider myself incredibly lucky for that fact. I couldn’t imagine having navigated this process without the help and support of Jennifer Barrigar and her magic purse, or without Jody Thompson and the magic kitchen that accompanies her everywhere. I am also grateful for the magic that New Orleans brought into my life and all of the incredible friends she provided, allowing me to find blissful happiness in amongst the struggle to finish this work. And finally, I want to thank my Dad for setting me along the path of trying to make the world a better place, and Jay Roberts who reminded me of that path in everything he did. ii ABSTRACT This dissertation looks at the concept of “trafficking in persons” and how it has been created, interpreted and utilized in the international sphere and in Canada. Using the approach of Critical Legal Pluralism (CLP), it examines the legal regulation of trafficking as being created through a bi-directional constitutive process, with paradigmatic conceptions of trafficking having a hand in creating regulation as well as being influenced by it. Through a review of data retrieved using a variety of qualitative methods as well as classic legal analysis, this dissertation explores the operation of various social actors and their effect on the determination of what trafficking is, and who is worthy of protection from it. In Part One the international framework is outlined through a discussion of the creation of the dominant paradigm of trafficking and implementations of it. Chapter One traces the history of the anti-trafficking movement by looking at the development of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, and by examining the creation of dominant discourses around trafficking. Chapter 2 uses CLP to examine the influences of a variety of actors on the creation of these discourses and the repercussions the discourses have had on the implementation of anti-trafficking policies. Part Two then turns to the Canadian context. In Chapter Three, classical legal methodologies are employed to discuss Canada’s obligations under international law with respect to trafficking, as well as the creation of definitions of trafficking in the Canadian legal regulatory context. Chapter Four then reviews data from Canada to discuss the ways in which various actors have been involved in the creation and operation of the dominant paradigm and how it in turn affects the operation of trafficking-related legal constructs. Ultimately, it is found that due to the influence of the dominant paradigm and the motivations that aid in its operation, programs and policies framed under the rubric of “trafficking” necessarily fail to achieve meaningful redress for the groups they purport to benefit. On this basis, an alternative approach is suggested to address phenomena currently being dealt with through anti-trafficking frameworks. A move is suggested away from a focus on “trafficking” to a sectoral approach, accounting for the complexities and histories of individuals subject to exploitative circumstances. [iii] LIST OF ABBREVIATIONS CATW Coalition Against Trafficking in Women CCRF Canadian Charter of Rights and Freedoms CEDAW Convention on the Elimination of all forms of Discrimination Against Women CIC Citizenship and Immigration Canada CISC Criminal Intelligence Service of Canada CLP Critical Legal Pluralism CoE Council of Europe Convention United Nations Convention Against Transnational Organized Crime CRC Convention on the Rights of the Child DOJ Department of Justice EU European Union FGD Focus Group Discussion GAATW Global Alliance Against Trafficking in Women ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families IGOs Intergovernmental Organizations IHRLG International Human Rights Law Group ILO International Labour Organization IRPA Immigration and Refugee Protection Act NGOs Non-Governmental Organizations OSCE Organization for Security and Coooperation in Europe Protocol Protocol to Prevent, Suppress and Punish Trafficking in Persons [iv] RCMP Royal Canadian Mounted Police TiP Report Trafficking in Persons Report TRP Temporary Residency Permit TVPA Trafficking Victims Protection Act UDHR Universal Declaration on Human Rights UNGIFT United Nations Global Initiative to Fight Human Trafficking UNESCO United Nations Education, Scientific, and Cultural Organization UNHCR United Nations High Commissioner for Refugees UNODC United Nations Office on Drugs and Crime USDOS United States Department of State [v] TABLE OF CONTENTS ACKNOWLEDGEMENTS ..................................................................................................................................... ii ABSTRACT .............................................................................................................................................................. iii LIST OF ABBREVIATIONS ................................................................................................................................. iv PROLOGUE ............................................................................................................................................................... 1 INTRODUCTION ..................................................................................................................................................... 2 A. SUMMARY OF LITERATURE .................................................................................................................... 5 B. PROJECT OVERVIEW ............................................................................................................................... 17 i. Theoretical Framework ...................................................................................................................... 17 ii. Methods .................................................................................................................................................... 22 C. STRUCTURE ................................................................................................................................................. 34 PART I – THE INTERNATIONAL FRAMEWORK ..................................................................................... 37 CHAPTER ONE- THE INTERNATIONAL LEGAL FRAMEWORK REGULATING TRAFFICKING IN PERSONS .......................................................................................................................................................... 38 A. DEVELOPMENT OF THE PROTOCOL ................................................................................................. 38 i. History of Anti-trafficking legislation .................................................................................................. 38 ii. Negotiation of the Protocol ...................................................................................................................... 43 B. PROTOCOL - INTERPRETATIONS AND ANALYSIS ....................................................................... 52 i. Application to domestic criminal law .................................................................................................