par Richard Poulin, Department of Sociology, University of Ottawa

Canada is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In its Article 6, the Convention requires the signatory states to take all appropriate measures, including legislation, to eradicate all forms of trafficking in women and the exploitation of women through prostitution (1).

Canada has also ratified the Convention Against Transnational Organized Crime (Palermo Convention). This convention establishes parameters for international judicial cooperation on transnational organized crime and creates an international judicial system under which traffickers can be held responsible for their crimes. The Supplementary Protocol to the Convention Against Transnational Organized Crime to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, to which Canada is a signatory, states in its Article 2 :

"The purposes of this Protocol are : (a) To prevent and combat trafficking in persons, paying particular attention to women and children ; (b) To protect and assist the victims of such trafficking, with full respect for their human rights ; and (c) To promote cooperation among States Parties in order to meet those objectives."

Article 3 states, "For the purposes of this Protocol : (a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs ; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used"(2).

The Protocol recognizes that most human trafficking is for purposes of prostitution and other forms of sexual exploitation, although it also extends protection to persons, including children under the age of 18, who are the subject of trafficking for other purposes, including forced labour, slavery and servitude.

Article 9 of the Protocol requires states to do everything in their power to prevent human trafficking. They must for example undertake awareness campaigns in the media, including foreign media (especially the countries of origin of women and children who are victims of trafficking), as well as economic and social initiatives.

To comply with the Palermo Convention and its Supplementary Protocol, Canada should cease to issue temporary work permits in the form of visas for performers in the nude dance industry.

And pursuant to its having signed the CEDAW Convention and the Palermo Convention, Canada must ratify the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (1949 Convention).

The fundamental principles of this convention are as follows :
• Prostitutes are regarded as victims of the prostitution system.
• The burden of proof can in no case be borne by the victim.
• The Convention does not distinguish between transnational procuring (trafficking) and internal procuring. Both are equally culpable and the two are often linked in any event.
• Steps must be taken to protect victims and reintegrate them into the community. In no case must protection be contingent on a victim’s testifying or complaining. All resources available to prostitutes (social and health services, police services (which must take an active listening approach rather than a repression of crime approach), NGOs, charitable groups, "survivor" groups, academics doing research into the problem, etc.) must be involved in helping to create effective mechanisms for the social reintegration of women who have been caught up in prostitution.
• A centralized office must be set up to handle relevant information.

The signing by Canada of the 1949 Convention would not entail a radical change in the section of the Criminal Code dealing with prostitution because the Criminal Code, like the Convention, does not make prostitution illegal but rather makes certain related activities illegal, such as procuring, the keeping of a common body house, etc.. What would be radically changed is the philosophy that underlies our policy on prostitution and our police and judicial practices. Among other things, this country should implement a certain number of measures to prevent prostitution, protect its victims, and help them reintegrate professionally into society.

In Canada, it is necessary to strengthen the repression of the procuring. More stringent policies should be adopted to suppress all forms of procuring and not simply those relating to the exploitation of prostitution visible in public places. A special police force should be formed and given the financial and other means required to make investigations that would lead to prison terms. The penalties should be severe.

Because Canada is a signatory to the Palermo Convention, the CEDAW Convention and the Convention on the Rights of the Child (3) , these conventions and the 1949 Convention should serve as the framework for reshaping Canadian law and adapting it to the new realities of globalization in the sex industries. This globalization in the sex industries, and their significant growth, can be slowed and combated by policies based on the conventions : stronger criminalization of procuring, sexual tourism and trafficking. In accordance with the 1949 Convention, and by using the definition of victims in the Palermo Convention, Canada could decriminalize the activities of prostitutes themselves ; they are victims within sexual and social power relationships and a system largely directed and organized by national and transnational organized crime (even in countries where prostitution is legal) - a system based on exploitation, violence and the domination of one sex by the other, which flies in the face of the principles of equality professed by Canada both domestically and internationally.

To combat human trafficking for purposes of prostitution, Canada, which is both a destination and a transit point for this traffic, must fight prostitution, which is the source of trafficking. It must attack demand, i.e., the clients (both here and in other countries, especially in the case of sex tourism by Canadian nationals), the other cause of prostitution, by a policy of criminalization similar to Sweden’s. Sweden has simply applied in its own way Article 9.5 of the Supplementary Protocol which refers to the men whose demand "fosters" the supply of women working as prostitutes : "States Parties shall adopt or strengthen legislative or other measures … to discourage the demand that fosters all forms of exploitation of persons, especially women and children, [and] leads to trafficking."

In Sweden, prostitution is regarded as one aspect of male violence against women and children. It is officially recognized as a form of exploitation of women and children and as a significant social problem, not only for persons working as prostitutes but also for society as a whole.

In short, Canada must update its laws on trafficking from the following perspective :

1. The primary reason for trafficking is the exploitation of prostitution.
2. The burden of proof must not be on the victims.
3. It is necessary to differentiate the protection of victims (set out in the Supplementary Protocol) must be differentiated from the protection of witnesses (set out in the Palermo Convention).
4. It is necessary to discourage and to fight, including by by legislation among other means, demand, which favors the development of trafficking and prostitution.

Canada’s approach to prostitution must focus on three major aspects : first, decriminalization of prostitutes themselves ; second, criminalization of those who profit from the prostitution of others, including pimps and johns ; third, the prevention of prostitution and trafficking, the protection of their victims, and the reintegration of those victims into society. The government is responsible for helping women leave prostitution and for providing them with access to refuges, counselling, education and vocational training.

The government must develop a national action program on prostitution and human trafficking. This national action program must include :

1. a national plan for combating prostitution and trafficking in human beings, especially women and children, for purposes of prostitution or other forms of sexual exploitation. For example, a national campaign could be launched (like those against tobacco or drunk driving) to change attitudes and stop the trivialization of the consumption of prostitution by its clients ;
2. a national plan to combat trafficking in human beings for forced labour, the traffic in organs or other purposes ;
3. since the average age of entry into prostitution in Canada is around 14, it is urgent that an action and information plan be established to prevent the prostitution of young people and to make the necessary efforts to protect and assist its victims. Specific measures must be defined and implemented to prevent and fight demand, i.e., must target johns and sex tourists. Their demand encourages all forms of human sexual exploitation, in particular that of women and children. Re-education measures, such as confrontations with "survivors", and an awareness of society’s contempt for those who purchase another human being, along with the required criminal sanctions of (for example) six months to one year for a first offence in aggravated cases, will show clearly that the government of Canada does not tolerate the sale and purchase of sex from women and children.

By suppressing the purchase of sexual services, Canada would conform with the 1949 Convention and the CEDAW Convention. The "Final Protocol" of the 1949 Convention gives the States Parties freedom to pass legislation ensuring "stricter" measures to combat human trafficking and the exploitation of the prostitution of others. By focusing on demand, which is the accomplice of procurers, Parliament would be resolutely rejecting the discrimination, violence and inequality that violate human dignity.

What protection should there be for the victims ?

Canada must take as its model articles 6, 7 and 8 of the Supplementary Protocol on human trafficking, which set out in some detail the measures to be taken to protect victims (4). These articles reflect articles 16, 17, 18 and 19 of the 1949 Convention.

Some recommendations :

1. Put prostitution at the centre of policies on combating violence against women.
2. Set up an "observatory" on the prostitution system, with representatives from the Department of Justice, the RCMP, provincial and municipal governments, groups of women which fight against violence and expert researchers. Its mandate would be to analyse the various contemporary forms the system takes, the activities and ramifications of the sex industry and its rapid evolution on the global and national levels.
3. Free up money for protecting the victims of trafficking and prostitution.
4. Encourage creation and development centres for the victims of male violence, including the victims of prostitution and trafficking, to protect them from pimps, organized crime and perpetrators of violence (especially johns), or give existing centres sufficient extra resources that they can provide protection to victims of the prostitution system.
5. Develop a complete package of assistance and support for victims, so that they can reconstruct their lives and rejoin the community and the workforce.
6. Elaborate policies designed to prevent the sexual exploitation of women, especially young women, both in Canada and in the countries that are the sources of trafficking for purposes of prostitution here.
7. Set up awareness programs about the impact of prostitution on health.

The fight against prostitution and trafficking for purposes of prostitution is part of the wider goal of equality between men and women. Equality will remain out of reach as long as men buy, sell and exploit women and children by prostituting them.

References

1. Article 6 reads as follows : "States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women."
2. The most controversial aspect of the Protocol was the definition of trafficking in Article 3. During the negotiations, some pro-prostitution countries and NGOs argued in favour of a definition that would limit protection to victims of human trafficking where there had been coercion or the use of force, and where the victims had not consented to the trafficking. These countries and NGOs wanted to omit any mention of trafficking for purposes of prostitution or sexual exploitation, and to remove all references to "victims" from the text. If this definition had been accepted, which it was not, the emphasis would have been on the victims and their state of mind or their character, rather than on the actions of the persons committing the crime. The burden of proof would also have been shifted onto the victims, who would have had to prove that they had not consented - to all intents and purposes an impossibility for women and children in positions of vulnerability, extreme dependence and subordination.
3. Article 34 stipulates that "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent : (a) The inducement or coercion of a child to engage in any unlawful sexual activity ; (b) The exploitative use of children in prostitution or other unlawful sexual practices ; (c) The exploitative use of children in pornographic performances and materials." Article 35 stipulates that "States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form."
4. The Protocol also contains provisions requiring that states come to the aid of women and children who are the victims of human trafficking by offering social, medical and psychological assistance (article 6). States must also provide for victims’ physical safety and ensure that victims of trafficking are permitted to stay in the country to which they have been brought, temporarily or permanently, "in appropriate cases" (article 7).

On Sisyphe, June 4, 2005.

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Richard Poulin, Department of Sociology, University of Ottawa