Olivia Smith — Human Trafficking and the Digital Divide

Over the past decade, human traf­fick­ing has moved from the mar­gins to the main­stream of nation­al con­cern in Cana­da. Cana­di­an data reveal that the num­ber of police-report­ed inci­dents has increased since 2009 (Cot­ter 2020; Ibrahim 2021;Par­lia­ment of Cana­da 2018), with the major­i­ty of inves­ti­ga­tions relat­ed to some form of sex­u­al exploita­tion (Depart­ment of Jus­tice 2015; UNODC 2021a). In 2021, the Finan­cial Trans­ac­tions and Reports Analy­sis Cen­tre of Cana­da (FINTRAC) not­ed that “the Covid-19 pan­dem­ic has not cur­tailed human traf­fick­ing in Cana­da and has caused many indi­vid­u­als to be more vul­ner­a­ble to this crime”.

Human traf­fick­ers have rapid­ly adjust­ed their ille­gal oper­a­tions to adopt new dig­i­tal and online tech­nolo­gies rang­ing from chat rooms, smart­phones, and video sur­veil­lance to mon­ey trans­fers and dig­i­tal cur­ren­cies. Tech­nol­o­gy offers human traf­fick­ers oppor­tu­ni­ties for a more pas­sive recruit­ment, which is much hard­er for law enforce­ment to detect.The result is an illic­it mar­ket­place that is high­ly prof­itable and dri­ven by demand, pric­ing and com­pe­ti­tion. Case in point: On June 19, 2021, the Alber­ta Law Enforce­ment Response Team’s (ALERT) Human Traf­fick­ing and Counter Exploita­tion Unit res­cued a 15-year-old girl from human traf­fick­ers at an Edmon­ton hotel. The police inves­ti­ga­tion revealed she was ini­tial­ly groomed online, which then esca­lat­ed to nude pho­tog­ra­phy and cul­mi­nat­ed in her being pros­ti­tut­ed. With the help of dig­i­tal evi­dence, law enforce­ment was able to arrest three men who were charged with a total of 35 crim­i­nal offences. In refer­ring to the case, ALERT Staff Sergeant Chris Hayes when asked about the arrest respond­ed that online traf­fick­ing is “all a mirage”.

Arguably, while online abuse and exploita­tion have accel­er­at­ed dra­mat­i­cal­ly, law enforce­ment and judi­cial respons­es have not kept pace. Exist­ing chal­lenges include lim­it­ed or non-exis­tent indus­try stan­dards; slow respons­es to doc­u­ment­ed abuse, fail­ure to report abuse, or active com­plic­i­ty in facil­i­tat­ing exploita­tion from cer­tain seg­ments of the indus­try, par­tic­u­lar­ly high­er risk sec­tors like pornog­ra­phy, sex­u­al ser­vices, short-term job seek­ing and social media. Cana­da also lacks a com­mon set of poli­cies and nec­es­sary leg­isla­tive reforms that are crit­i­cal to clos­ing exist­ing gaps sur­round­ing human traf­fick­ing e‑crimes.

This paper broad­ly address­es some of the key issues relat­ed to online human traf­fick­ing and the chal­lenges sur­round­ing the man­age­ment of dig­i­tal evi­dence in Cana­da. Besides offer­ing a sys­tem­at­ic assess­ment of the cur­rent sit­u­a­tion, this paper offers some solu­tions towards spear­head­ing action by the provin­cial and fed­er­al gov­ern­ments towards bridg­ing this gap with­in the jus­tice system.

Evidence Gathering

Law enforce­ment can col­lect dig­i­tal evi­dence from sev­er­al sources. These sources can include using under­cov­er agents, dig­i­tal under­cov­er agents, online and live, the inter­cep­tion of bank trans­ac­tions, mon­i­tor­ing of cell phones, TIP con­trolled deliv­er­ies, Deep Web and dark web, open source and soft­ware analy­sis, and pat­tern analy­sis soft­ware. They can also gath­er new types of evi­dence from a wider amount of sources which includes; cryp­tocur­ren­cy trans­ac­tions, text mes­sages, social media inter­ac­tions, and online adver­tise­ments all of which leave “fin­ger­prints” that can cor­rob­o­rate and poten­tial­ly replace vic­tim and wit­ness tes­ti­mo­ny. This means that non-tra­di­tion­al stake­hold­ers – includ­ing high­ly prof­itable social media com­pa­nies, finan­cial insti­tu­tions, accoun­tan­cies, and telecom­mu­ni­ca­tions com­pa­nies – can play a vital role in com­bat­ing human trafficking.

In the draft­ing of leg­is­la­tion regard­ing tech­nol­o­gy-facil­i­tat­ed human traf­fick­ing, espe­cial­ly when it requires or rec­om­mends cer­tain actions for tech­nol­o­gy com­pa­nies (includ­ing their data-shar­ing oblig­a­tions), risk assess­ment rather than ille­gal­i­ty alone should be a key con­sid­er­a­tion. The gov­ern­ment of Cana­da should also take into account sec­tor-spe­cif­ic chal­lenges and risks. For exam­ple, stan­dards and mea­sures vis-à-vis adult ser­vices or escort web­sites, where the risks of human traf­fick­ing are high, may be dif­fer­ent than in the case of online pay­ment systems.

Anti-Human Trafficking Legislation

Leg­is­la­tion is one of the most impor­tant instru­ments the provinces and gov­ern­ment of Cana­da have in place to fight human traf­fick­ing. Fol­low­ing its rat­i­fi­ca­tion of the Unit­ed Nations Paler­mo Pro­to­col, Cana­da in 2001, intro­duced sev­er­al changes to its Immi­gra­tion and Refugee Pro­tec­tion Act (IRPA) and in 2005, amend­ed the Crim­i­nal Code. Such changes ren­der traf­fick­ing in per­sons (TIP) a domes­tic offence. E‑crimes how­ev­er make find­ing and res­cu­ing vic­tims much hard­er and builds a stronger case for the prop­er man­age­ment of dig­i­tal evi­dence by law enforce­ment agen­cies and the Courts. In 2015, Cana­da rat­i­fied the Coun­cil of Europe Con­ven­tion on Cyber­crime (Budapest Con­ven­tion) but much work is yet to be done such as in the area of mutu­al legal assis­tance. Cana­da also has in place the Pro­tect­ing Cana­di­ans from Online Crime Act S.C 2014 regard­ing the non­con­sen­su­al dis­tri­b­u­tion of inti­mate images and the right to remove them. The Min­is­ter of Pub­lic Safe­ty not­ed that “there is much poten­tial for increased use of dig­i­tal evi­dence in human traf­fick­ing cas­es despite the challenges.”

Ethical Considerations

A par­tic­u­lar lim­i­ta­tion of these par­tic­u­lar sets of laws is that they do not com­pel per­sons to pro­vide their pass­words or unlock their devices for law enforce­ment. As a result, Crown attor­neys often fail to gain access to data saved on phones that could be used as evi­dence in Court. Cur­rent prac­tices are premised at least in part on vol­un­tary data shar­ing which often leads to ter­ri­to­r­i­al issues among agen­cies at the pro­vi­sion­al and fed­er­al levels.

Addi­tion­al­ly, under the law, offi­cers must pur­sue a rea­son­able line of inquiry in seek­ing to obtain dig­i­tal or phys­i­cal evi­dence. Vic­tims out of fear, threats or frus­tra­tion with the lengthy legal process involved, often will refuse to coop­er­ate with law enforce­ment. The refusal by a vic­tim to pro­vide pri­vate or per­son­al mate­r­i­al is a very com­mon occur­rence in human traf­fick­ing cas­es in Cana­da. There are also issues relat­ing to the perpetrator’s con­sti­tu­tion­al right not to be com­pelled — see R. v. Shergill, 2019 ONCJ 54 (Can­LII), to pro­tect one­self against self-incrim­i­na­tion [explained at. par. 19–20] and the right to silence [explained at par. 21–22]. With­in this con­text, it’s per­haps unsur­pris­ing that reliance on a vic­tim or wit­ness tes­ti­mo­ny as a prod­uct of the law rarely leads to suc­cess­ful convictions.

Recommendations

A whole of gov­ern­ment approach is need­ed to effec­tive­ly com­bat e‑human traf­fick­ing. It is hoped that the fol­low­ing rec­om­men­da­tions some of which are not new, will help to move for­ward the work need­ed to help Cana­da address the exist­ing but grow­ing gaps in the jus­tice system’s abil­i­ty to effec­tive­ly pro­tect the pub­lic and deliv­er jus­tice where and when needed.

• Hav­ing rat­i­fied the Budapest Con­ven­tion, Cana­da should lever­age the full poten­tial offered by the Cyber­crime Con­ven­tion and com­plete the har­mon­i­sa­tion of nation­al leg­is­la­tion with the Convention.
• Spe­cial­ized units should be set up both in the Min­istry of Pub­lic Safe­ty and the Depart­ment of Jus­tice to col­lab­o­rate on imple­ment­ing the pro­posed rec­om­men­da­tions under a Dig­i­tal Evi­dence Frame­work for Action.
• Law enforce­ment and labour inspec­torates should imple­ment stronger reg­u­la­tions and increased mon­i­tor­ing of job adver­tise­ment web­sites, recruiters and recruit­ment agen­cies. This could be done with the sup­port of tech­no­log­i­cal tools devel­oped in coop­er­a­tion with pri­vate companies.
• Train­ing on elec­tron­ic evi­dence should be made inte­gral to train­ing cur­ric­u­la for law enforce­ment and labour inspec­torate and be con­stant­ly kept up-to-date due to the fast-chang­ing tech­no­log­i­cal and behav­iour­al landscape.
• Pros­e­cu­tors should be pro­vid­ed with spe­cif­ic train­ing on tech­nol­o­gy-facil­i­tat­ed THB, the han­dling of elec­tron­ic evi­dence as well as its pre­sen­ta­tion before a judge/jury and, pro­ce­dures to request elec­tron­ic evi­dence from pri­vate com­pa­nies as well as obtain evi­dence and coop­er­a­tion from oth­er countries.

Conclusion

The COVID-19 pan­dem­ic has her­ald­ed the rapid expan­sion of tech­nol­o­gy-facil­i­tat­ed human traf­fick­ing crimes and there is no turn­ing back. The mis­use of tech­nol­o­gy is cen­tral to the modus operan­di of traf­fick­ing net­works and per­pe­tra­tors, specif­i­cal­ly facil­i­tat­ing con­nec­tiv­i­ty between traf­fick­ers, their vic­tims, and those who demand these ser­vices. Dig­i­tal evi­dence has the poten­tial to deliv­er the type of over­whelm­ing evi­dence that can achieve an increased num­ber of suc­cess­ful pros­e­cu­tions of cas­es and serve as a deter­rent to human traffickers.

Com­mon stan­dards, poli­cies, rel­e­vant leg­isla­tive reform and inter­na­tion­al coop­er­a­tion are need­ed but, such action can­not be frag­ment­ed, unco­or­di­nat­ed and dis­pro­por­tion­ate to the prob­lems they are intend­ed to address; they must be com­pre­hen­sive, scaled, sus­tain­able and cost-effi­cient. Bal­anc­ing the rights of vic­tims and per­pe­tra­tors in the Court sys­tem must also remain an impor­tant con­sid­er­a­tion when craft­ing and enact­ing leg­is­la­tion to har­mo­nize pro­ce­dures for online inves­tiga­tive tech­niques for tech­nol­o­gy-facil­i­tat­ed crim­i­nal offences, the col­lec­tion of elec­tron­ic evi­dence, and its use and dis­pos­al by prosecutors.

Beyond the need for improved reg­u­la­to­ry prac­tices that include mov­ing away from an over-reliance on vic­tims’ tes­ti­mo­ny to suc­cess­ful­ly con­vict crim­i­nals, invest­ing human resources capac­i­ty through increased train­ing of sev­er­al gov­ern­ment offi­cials, law enforce­ment offi­cers, court pros­e­cu­tors and judges and NGOs can­not be overemphasized.

Time is of the essence. Human traf­fick­ers are not wait­ing for the gov­ern­ment to play catchup. As the gov­ern­ment of Cana­da pre­pares its ground­work for the 2024 nation­al strat­e­gy to com­bat human traf­fick­ing, a for­ward step into the future means that Cana­da must quick­ly estab­lish the nec­es­sary pol­i­cy and legal archi­tec­ture to com­bat e‑crimes such as human traf­fick­ing in a way that pro­vides jus­tice for vic­tims while safe­guard­ing com­mu­ni­ties from per­pe­tra­tors of this dread­ful crime.

About the Author

Olivia Smith is the McConnell Vis­it­ing Schol­ar for 2022–2023. She was the 2021 O’Brien Fel­low in Res­i­dence and Affil­i­ate with the Oppen­heimer Chair in Pub­lic Inter­na­tion­al Lawheld by Pro­fes­sor François Cré­peau. She is also a con­sul­tant on labour migra­tion and human traf­fick­ing and the Exec­u­tive Direc­tor of the Caribbean Anti Human Traf­fick­ing Foun­da­tion, a mem­ber of the Work­ing Group of Experts on Human Traf­fick­ing, Recruit­ment Agen­cies, Agents for The Com­mon­wealth Par­lia­men­tary Asso­ci­a­tion, Lon­don, UK, and a Gen­der Rights Spe­cial­ized Team mem­ber, Amnesty Inter­na­tion­al (Cana­da).