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The Human Trafficking Matrix: Law, Policy and Anti-Trafficking Practices in the Canadian Criminal Justice System

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The Human Trafficking Matrix: Law, Policy and Anti-Trafficking Practices in the Canadian Criminal Justice System The Human Trafficking Matrix: Law, Policy and Anti-Trafficking Practices in the Canadian Criminal Justice System Katrin Roots DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN SOCIO-LEGAL STUDIES YORK UNIVERSITY Toronto, ON June 2018 © Katrin Roots, 2018 Abstract International and domestic anti-trafficking agendas received an enormous boost in 2002 from the re-definition of human trafficking as a major and pressing transnational organized crime threat through the enactment of the UN Trafficking Protocol. This dissertation traces the way in which the definition of human trafficking and subsequent efforts to combat it are shaped in local context-specific ways through the ‘crime-security nexus’ (Pratt, 2005) and, what I call, the ‘human trafficking matrix’. While the issue of trafficking has received wide-ranging, interdisciplinary scholarly attention, there is to date only three empirical Canadian studies that examine frontline anti-trafficking policing and prosecution efforts with a focus on migrant worker justice (Millar and O’Doherty 2015), on international trafficking cases (Ferguson 2012) and on Indigenous communities (Kaye 2017), as well as a handful of European (Meshkovska et al. 2016; Lester et al. 2017) and American studies (Farrell et al., 2015, 2016). This doctoral dissertation combines detailed analysis of relevant national and international laws and policies, case law, court documents, transcripts, and interviews with criminal justice actors to provide an empirically grounded study of front line anti-trafficking policing and prosecution in Canada, with a particular focus on the province of Ontario. This dissertation asks two main questions: 1) How have international discourses around organized crime threats to national security and corollary concerns with victims and human rights come to shape international and domestic legal regimes and domestic criminal justice responses to criminal activity defined as trafficking? and 2) What are the varied local effects of these developments on the culture, organization and decision-making of frontline of anti-trafficking criminal justice enforcement and prosecution? The local empirical research of this dissertation displays that the international and national anti- trafficking regimes, which are embedded within the human trafficking matrix and are, at least in part, fueled by the crime-security nexus, have entailed a variety of practical effects on the frontline. These not only show the continuation of the historically longstanding criminalization of various activities associated with the sex trade and certain marginalized groups, but also reveal some interesting and novel effects relating to, for example, the infusion of resources, the development of various modes of policing and prosecution, the production and deployment of forms of knowledge and expertise, as well as the use of well-documented legal tactics in new ways that not only reshape trafficking victims and offenders but that also continually work to reshape and reproduce the problem of trafficking on the frontline. II Acknowledgements I am grateful to many who helped in various ways to bring this dissertation together. First and foremost, my supervisor Anna Pratt, who spent countless hours guiding, editing, supporting and encouraging me in this process. I cannot thank you enough for this. I’d like to thank my committee Annie Bunting and Alan Young as well as my internal reviewer Kamala Kempadoo and my external reviewer Annalee Lepp for their constructive feedback. And, a special thank you to Amanda Glasbeek, for your continued guidance and support throughout this process. I am indebted to my interview participants for sharing their invaluable insights as well as to my friends and former colleagues at the Ministry of the Attorney General for your kind assistance with research collection. I would like to acknowledge the generous support of the Social Science and Humanities Research Council of Canada, as well as the Nathanson Centre on Transnational Human Rights, Crime and Security Studies and the Ontario Graduate Scholarship program. This journey would not have been the same without my dear colleagues and friends Heather Tasker, Emily Lockhart, Mariful Alam, Patrick Dwyer, Jessica Templeman and Bevery Orser. A big thank you to my family for always supporting me in my many ventures. And lastly, to my partner Ivica, for seeing me through the toughest parts of this journey, for your love, patience and sense of humour. III Table of Contents Abstract................................................................................................................................ II Acknowledgements .............................................................................................................. III Table of Contents ................................................................................................................ IV Acronyms ........................................................................................................................... VII Preface ................................................................................................................................ IX Chapter 1 - Introduction ...................................................................................................... 1 Key Conceptual Tools ...................................................................................................................6 The Development of Anti-Trafficking Legal Regimes ...................................................................9 Domestic Anti-Trafficking Action Plan and Funding .................................................................. 13 The Role of the US ...................................................................................................................... 15 Shaping the Complainant and the Accused in Trafficking Cases ................................................ 18 A Word on Terms ....................................................................................................................... 22 Chapter Outline .......................................................................................................................... 23 Chapter 2 – Studying Trafficking ...................................................................................... 28 Human Trafficking and Sex Work.............................................................................................. 30 Modern Slave Trade and Trafficking ......................................................................................... 32 Migration and Human Trafficking ............................................................................................. 35 The ‘Saviour’ and the ‘Trafficker’.............................................................................................. 38 Organized Crime and Human Trafficking .................................................................................. 40 Conceptual Toolkit ..................................................................................................................... 44 Research Methods ...................................................................................................................... 57 Chapter 3 – Law and the Definition of Human Trafficking ............................................... 67 Considering the Legal Definitions of Human Trafficking ........................................................... 68 Understanding the Term ‘Exploitation’ in Trafficking ................................................................ 74 ‘The Consent’ Factor ....................................................................................................................... 77 ‘The Means’ Factor .......................................................................................................................... 79 The ‘Fear of Safety’ Component ..................................................................................................... 81 The Legal Fusion of Procuring and Human Trafficking ............................................................. 83 Bill C-452 .................................................................................................................................... 88 Legal Consequences of Human Trafficking Convictions ............................................................. 95 Conclusion ................................................................................................................................ 104 Chapter 4 –International Trafficking and the Crime-Security Nexus .............................. 106 The Problem of International Trafficking ................................................................................. 107 Human Rights and Modern Day Slavery .................................................................................. 112 Human Trafficking and Organized Crime ................................................................................ 115 Linking Trafficking with Terrorism ......................................................................................... 124 Conclusion ................................................................................................................................ 130 Chapter 5 –The Making of Domestic Trafficking............................................................. 131 The Sexual Violence Agenda and ‘The Girl
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