"THE TIP OF THE ICEBERG": HUMAN TRAFFICKING, BORDERS AND THE CANADA-U.S. NORTH.

• Author: Perry, Mike
• Position: Proceedings of the 41st Annual Canada-United States Law Institute Conference on the State of Our Nations; The Canada-United States Relationship: Canada-United States Perspectives on Law, Policy and Politics in Tumultuous Times

If Nunavut has become a Vietnam or Thailand or Cambodia because people's desperation is so great that they feel that their only remedy is letting their child go with a 30-year-old man ... then there are some fundamental questions here for Canada.

Most Canadians would be shocked to learn of human trafficking in the North and the use of the northern Canada-U.S. border by modern day slave-traders. Increased border controls are identified by political leaders and public policy-makers as orthodoxy for combatting human trafficking. However, given their contemporary constructs, accompanying legal powers and political implications in an age of unparalleled security concerns, borders are inherently statist exercises of territorial sovereignty with only secondary, if not tertiary, regard for individuals. This article examines the complex nature of human trafficking in the North and its unique aspects for indigenous peoples. Canadian and U.S. border law and policy are canvassed, focusing on the border between Alaska and the Yukon. This article challenges the hegemony of current border discourses to combatting human trafficking, arguing that the focus on borders is misplaced and that the dominant border paradigm of security, criminality and law enforcement needs to be replaced by a human security approach in order for anti-trafficking efforts to be effective. The article concludes with policy recommendations for border reform and broader measures, including in the context of the North, prescribing more impactful action to end slavery.

TABLE OF CONTENTS I. The Law A. Canada B. United States II. Policy Foundations A. Canada B. United States III. Borders: Geographies, Landscapes, Human Trafficking and the North A. Trafficking and Geography IV. The Trouble with Borders A. Security and/or Rights B. Off the Radar C. Lack of Evidence D. Too 'Up Stream'? E. Identifying Victims F. Beyond Borders V. Conclusion Talk of Canada's Northern borders traditionally conjures images of the red-drenched Royal Canadian Mounted Police, snowy wooden outpost cabins, and pine-filled mountain landscapes. Most Canadians would be shocked to learn of the prevalence of human trafficking in the North (1) and the use of the Canada-U.S. northern border by modern day slave-traders. (2)

The International Labour Organization estimates that some two-and a-half million people worldwide live in slavery. Human trafficking, tied with the illegal arms trade, has been deemed the world's second most profitable criminal enterprise. (3) Other estimates hold that each year, more than 500,000 women and girls are trafficked into the United States for forced sex, (4) while between 1,500 to 2,000 people are trafficked in or across Canada's borders annually. (5) The North is not immune.

Despite a lack of public awareness, human trafficking, the modern term for slavery, has been a concerning reality in the North for some time. (6) While accurate data are scarce, in a recent report, the Ontario Native Women's Association concluded that "indigenous women and girls are dangerously and drastically overrepresented among ... trafficked individuals." (7)

In a 2013-2014 comprehensive and controversial report on human trafficking in Northern Canada, entitled "Service and Capacity Review for Victims of Sexual Exploitation and Human Trafficking in Nunavut," (8) researcher Heather Roos noted the cultural factors and vulnerabilities to exploitation that Northern indigenous people and other resident populations face. (9) The study, although disturbing, was primarily national in focus, noting that human trafficking in the North mainly occurs in urban centres across Canada. (10) Roos stated that, "vulnerable Inuit are already known targets for traffickers ... internationally to the United States and potentially through Europe through Greenland." (11) Instances of transnational human trafficking from the North have been reported. (12)

The movement of people across the Canada-U.S. border is further complicated by the presence of organized crime in First Nations territories situated by the border between the two countries. (13) Roose posits that indigenous woman in Canada are being trafficked across "international borders for the sex industry." In support of her position, Roose points to the disproportionate number of missing and murdered indigenous women and girls in Canada, and the lack of visibility of the indigenous women, including Inuit women, in street sex work in Southern Ontario and in online escort advertisements. (14)

Human trafficking is readily documented in the northern state of Alaska. According to the report entitled the State of Alaska Task Force on the Crimes of Human Trafficking, Promoting Prostitution and Sex Trafficking, between 2007 and 2012, twenty-seven charges of sex trafficking were laid, resulting in nineteen convictions. (15) A leading non-governmental organization combatting human trafficking, the Polaris Project, identified thirty-nine reported cases of both sex and labour trafficking in Alaska from 2012 to 2017. (16) Homeless youth in Anchorage, Alaska have been identified as being disproportionately vulnerable to trafficking. This finding is consistent with the conclusion that homelessness is a root cause of human trafficking in different regions, including in the North.

According to a recent 2017 study of ten cities in the United Stated and Canada, Anchorage has the highest prevalence of trafficked homeless youth in the United States. (17) The same study indicated that twenty-eight percent of the Anchorage youth surveyed met the definition of human trafficking. Additionally, the report indicated that twenty-seven percent of the city's homeless young women as well as seventeen percent of the young men interviewed had been trafficked for sex. (18)

In 2017, a young female, an alleged victim of human trafficking, was detected on an Air Alaska flight from Seattle to San Francisco. (19) Alaska residents recently held a march to raise awareness of human trafficking in their state. (20) But what is human trafficking?

1. THE LAW

   For centuries, abolishing slavery worldwide, through treaty-making, has been a stated goal of the international community. (21) The most recent instrument entitled the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children ("Trafficking Protocol"), (22) was negotiated in 2002 as an addition to the United Nations Convention Against Transnational Organized Crime. (23) The Trafficking Protocol, now ratified by 170 countries, contains the current internationally accepted definition of human trafficking. Article 3(a) states:

   "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. (24) The Trafficking Protocol obligates the signatory states to criminalize human trafficking (25) within their domestic legal systems, provide assistance to victims, (26) and prevent trafficking of persons. (27) Article 11 of the Trafficking Protocol prescribes specific border control measures for each ratifying State:

   1.... States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons.

   2. Each State Party shall adopt ... measures to prevent ... means of transport operated by commercial carriers from being used in the commission of offences ... of this Protocol.

   6. Without prejudice to article 27 of the Convention, States Parties shall consider strengthening cooperation among border control agencies by, inter alia, establishing and maintaining direct channels of communication.

   Article 12 goes further, mandating the security and control of travel documents:

   Each State Party shall take such measures as may be necessary, within available means:

   (a) To ensure that travel or identity documents issued by it are of such quality that they cannot easily be misused and cannot readily be falsified or unlawfully altered, replicated or issued; and

   (b) To ensure the integrity and security of travel or identity documents issued by or on behalf of the State Party and to prevent their unlawful creation, issuance and use.

   In fulfilling their obligations under the Trafficking Protocol, Canada and the United States have outlawed human trafficking in their domestic criminal law.

   1. Canada

      Sub-section 279.01(1) of the Canadian Criminal Code (28) states:

      Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence ... Earlier this year the government of Canada introduced legislation to strengthen the Criminal Code to give "law enforcement and prosecutors more tools to better fight human trafficking." (29) Canada also proscribes human trafficking pursuant to its Immigration and Refugee Protection Act, (30) which states that:

      No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion. (31) In addition, consistent with Article 12 of the Trafficking Protocol, anyone who tampers with or withholds travel or identification documents, including immigration status documents, is guilty of an indictable offence in Canada. (32)

   2. United States

      In the United State, sex and labour trafficking are defined and criminalized under the Victims of Trafficking and Violence Protection Act of 2000. (33) Incorporating the language of the Trafficking Protocol, the U.S. Act defines sex trafficking as:

      ... the...