Scripta Varia

Canada - Julie Thorburn

Human Trafficking in Canada

Julie A. Thorburn

Superior Court of Justice, Toronto, Canada
President, Canadian Chapter, International Association of Women Judges

 

1. Human Trafficking Defined

Section 279 of the Canadian Criminal Code defines human trafficking as recruiting, transporting, transferring, receiving, holding, concealing or harbouring a person, or exercising control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation.[1]

Exploitation is defined as causing another person to provide services in circumstances that “could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offered to provide, the labour or service”.[2]

The government of Canada generally talks about two types of human trafficking: sexual exploitation and forced labour. Human trafficking in the form of sexual exploitation often takes place in large urban centres. Instances of forced labour are not so restricted.

2. Who Are the Victims of Human Trafficking in Canada?

Canada’s national police force conducted Canada’s first Human Trafficking Threat Assessment. It reviewed cases and intelligence between 2005 and 2009.

A.    Sexual Exploitation

The Assessment confirmed that Canadian victims at risk for human trafficking for sexual purposes are primarily women and people who are socially or economically disadvantaged, teenaged runaways, and children placed in child protection. A disproportionate number of Canadian victims of human trafficking for the purpose of sexual exploitation are Aboriginal women and girls. Although Aboriginal people represent approximately 5% of Canada’s population, Aboriginal women represent the majority of domestic victims of sex trafficking.[3]

Non-Canadian victims of sexual exploitation come predominantly from countries in Asia, notably Thailand, Cambodia, Malaysia, Vietnam and from Eastern Europe.

B.    Forced Labour

Human trafficking for forced labour involves foreign nationals, both male and female, predominantly from the Philippines, India, Poland, China, Ethiopia, Mexico, Thailand and Hungary. Some foreign nationals are illegally transported and subsequently exploited by employers as domestic servants.

Between 2009 and 2014, a quarter of reported victims were under the age of 18, and close to half were between the ages of 18 and 24. 93% of reported victims were women.[4] Many such cases are found in large urban centres.

Human trafficking for forced labour has occurred across the country.

3. Why Are Women Victims of Human Trafficking?

            A. Sexual Exploitation

International victims of sexual exploitation often speak a language in common with their traffickers but do not speak an official language of Canada, and are therefore more dependent on their traffickers. Some have also grown up unable to trust the police or the justice system, and so are afraid to go to the Canadian authorities.[5] Traffickers can exploit these fears.

Moreover, where a woman’s immigration status is connected to her trafficker – for instance where the trafficker is her employer or spouse – she will not want to sever ties with that person for fear of being deported.[6] Traffickers can exploit the precariousness of a woman’s immigration and economic status and her fear of being deported in order to exercise greater control over her.

We do not fully understand why Aboriginal women in Canada are trafficked at a disproportionate rate, although a 2014 study for Public Safety Canada has shed some light on this issue:[7]

The effects of colonialism are seen through physical and sexual abuse experienced in the residential school system, dispossession of identity and culture via the Indian Act, violence, racism and the marginalization of Aboriginal women. Widespread addiction has created a multitude of vulnerabilities, and can often be the result of either being introduced to drugs as a method of pimp control or as a means of escape from the harsh realities of being victimized or exploited. The health, living and working conditions of Aboriginal women and girls who are reported as having been trafficked are deplorable and are centered in cycles of poverty, violence and degradation.[8]

Victims are recruited by family members, gangs and friends using various forms of financial and psychological coercion, as well as physical violence. These forms of coercion are often used in combination, such as the pimp who acts like a boyfriend, using “love” in combination with physical violence or threats so that the victim does not recognize that they are being trafficked. Because they do not see themselves as victims of crime, many women do not report them.[9]

            B. Forced Labour

Forced labour in Canada primarily involves internationally trafficked persons. They arrive through a variety of means: some with papers for fake or real jobs. In many cases, those jobs are contract or seasonal positions, often through Canada’s Temporary Foreign Workers’ Program. Women are typically offered jobs in the entertainment industry or as waitresses or nannies.[10]

There have been very few criminal forced labour decisions reported in the Canadian courts. Most involve male victims.[11] There is an illustrative Human Rights Tribunal case of forced domestic labour featuring actions that would constitute human trafficking under the Criminal Code.

The plaintiff was a Filipina woman, PN, who had worked as a domestic worker in Hong Kong, and moved to Canada with a family of recent immigrants.[12] PN was vulnerable to exploitation because she had gone to Hong Kong and followed her employers to Canada support her children and other family in the Philippines. They depended on her to maintain her employment. Her employer repeatedly reminded her of that. PN’s movements, her eating, and her activities were all controlled by her female employer. She was repeatedly sexually assaulted by her male employer. She slept on a couch in the living room where both could see her at night. She had no privacy. She was subject to humiliating and degrading comments and at least once to non-sexual physical violence.

Despite concerns about being able to send money back to her children, PN walked away. She brought forward a Human Rights complaint and was awarded significant damages. It is not clear why no criminal charges were brought.

4. Steps Taken in Canada to Address Human Trafficking

A.    Government of Canada Action Plan (2012)

In its National Action Plan, the government of Canada focuses on four core areas:

  • Prevention of human trafficking;
  • Protection and assistance for victims;
  • Detection, investigation and prosecution of offenders; and
  • National and international partnerships and knowledge sharing.

The prevention strategy is focused on training frontline workers, raising awareness in Canada and abroad, supporting communities to identify people and places most at risk, and strengthening the child protection systems in place.[13]

The protection strategy seeks to identify female immigrants aged 15-21 and female immigrants who arrive in Canada alone as targets of increased supports.[14] The Action Plan specifically discusses the Live-In Caregiver Program and commits to exploring improvements to employer monitoring and considering the need for further changes to the program. Another protection strategy seeks to better understand how trafficking plays out in Aboriginal communities. [15]

The prosecution strategy involves enhancing legal protections for victims of human trafficking, increasing the investigation and prosecution of traffickers, the inclusion of human trafficking training for justice system participants, dedicating investigative teams within law enforcement agencies, and improving the collection, coordination and collaboration of data.[16]

Partnerships include collaboration with provinces and territories in Canada, and international organizations and foreign governments, to prevent, identify and stop human trafficking.[17]

B.    Legislative Responses

i.               The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children

Canada recognizes the importance of consolidating international efforts to combat human trafficking and was among the first countries to ratify the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, General Assembly resolution 55/25 of 15 November 2000. The aims of the Protocol are to prevent and combat human trafficking, to protect and assist the victims of trafficking, and to promote cooperation among States to meet those objectives.

ii.              Criminal Code Changes

Before 2005, the Criminal Code contained no provisions specifically designed to prohibit trafficking in persons, although a number of offences – including kidnapping, uttering threats, sexual assault, criminal organization offences and extortion– played a role in targeting this crime.

In 2005, the Criminal Code was amended and four new indictable offences were added to address human trafficking:

1.     Section 279.01: Trafficking in persons: a global prohibition on trafficking in persons, (defined as the recruitment, transport, transfer, receipt, concealment or harbouring of a person, or the exercise of control, direction or influence over the movements of a person, for the purpose of exploitation).

2.     Section 279.011: Trafficking of a person under the age of eighteen years.

3.     Section 279.02: A legal prohibition against benefiting economically from trafficking.

4.     Section 279.03: Rendering the withholding or destroying identity, immigration, or travel documents to facilitate trafficking in persons a new crime.

New provisions also ensure that trafficking may form the basis of a warrant to intercept private communications and to take bodily samples for DNA analysis, and permit inclusion of the name of a human trafficking offender in the sex offender registry.

Canada may now prosecute Canadian citizens and permanent residents of Canada who commit trafficking offences outside of Canada.[18]

The Criminal Code also contains measures designed to make testifying less traumatic for victims and other vulnerable witnesses. Testimonial aids, such as a screen that prevents the witness from seeing the accused, the use of closed-circuit television that permits the witness to testify from outside the courtroom or the presence of support persons may be made available in appropriate circumstances. Other measures that may be available are publication bans on information that would identify a complainant or witness and, in some cases, orders excluding the public from the courtroom.

iii.            Proposed Changes to the Criminal Code

New legislation has been proposed to facilitate the prosecution of human trafficking and harden the punishment of human trafficking. The bill will,

·      Enact an evidentiary presumption to facilitate proving human trafficking offences (section 1);

·      Require the imposition of consecutive sentences where an offender is sentenced at the same time for a trafficking-in-persons offence (sections 279.01-279.03) and any other offence arising out of the same event(s) (section 3); and

·      Modify the provision that imposes a reverse onus for forfeiture of proceeds of crime for certain criminal organizations and drug offences to also apply to human trafficking offences (section 4).[19]

The harsher sentencing provisions will not come into force at the same time as the rest of the provisions because of concern that they are inconsistent with the Canadian constitution.[20]

iv.            Immigration Responses

Section 118 of the Immigration and Refugee Protection Act prohibits the bringing into Canada of persons by means of abduction, fraud, deception or use of threat of force or coercion. It carries a maximum penalty of a fine of up to $1 million and/or up to life imprisonment.

Canada now takes a more victim-centred approach to the immigration concerns of trafficking victims. In 2006, the Department of Citizenship and Immigration announced a policy of providing 180-day temporary resident permits to trafficked persons, without any fee, and allowing them to apply for a work permit in the interim, again without any fee.[21]

5. The Challenges Moving Forward

Access to justice: Traffickers need to know that they will be punished and victims need to know that they will be protected.

Mistrust of authorities: This complicates the law enforcement response to human trafficking.[22] Police agencies have begun to respond to this concern by taking a more victim-centred approach and addressing distrust by establishing better open lines of communication with sex workers and building relationships with support agencies but more work is needed in this area.[23]

Failure to acknowledge that human trafficking and sexual exploitation is a problem for some Aboriginal communities: It is difficult to bring educational programming to Indigenous communities – even communities in which the participants grew up – because the communities refuse to acknowledge the issue.[24]

Fear of coming forward: This is a challenge as those who were trafficked are usually alone, without family or a support system, and may be obstructed by language and economic barriers. Moreover, in most cases, they are skeptical of police and see very little value or nothing to gain from cooperating with police. There must be housing support for trafficked women and girls, services for mental health and addiction treatment, funding for legal clinics, education and income support for victims of trafficking, and more funding for prevention and awareness including Aboriginal-led funding initiatives.

Data management: It is important to standardize data collection and consolidate information to identify trends, possible solutions and to measure success.

Coordination of international efforts: More effort is needed to design programs to consider unsafe migration and human trafficking, to support international efforts such as CIDA-supported programs to target women and girls living in poverty, and to address the underlying causes of entry into human trafficking circumstances. It is also important to have ongoing training to identify and intercept traffickers and through international organizations, and to promote education on human trafficking to judicial partners.

                                                     Inside the Holocaust Museum in Washington
                                                     there is an inscription:

                                                     “Thou shalt not be a victim. Thou shalt not be
                                                      a perpetrator.
                                                      Above all, thou shalt not be a bystander.”

                                                      Let it be an inspiration to us all.

 

[1] Criminal Code, R.S.C. 1985, C-46, s. 279.01.
[2] Ibid s. 279.04.
[3] Native Women’s Association of Canada, Sexual Exploitation and Trafficking of Aboriginal Women and Girls: Literature Review and Key Informant Interviews: Final Report, (NWAC, October 2014) at p. 9, citing N.A. Barrett, An exploration of promising practices in response to human trafficking in Canada (Vancouver: International Centre for Criminal Law Reform and Criminal Justice Policy, 2010) at p. iii; Laura Barnett, Trafficking in Persons: Background Paper, Publication no. 2011-59-E, Parliamentary Information and Research Service, revised 15 January 2016 (Ottawa: Library of Parliament, 2016), at p. 3.
[4] Maisie Karam, “Trafficking in persons in Canada, 2014”, Statistics Canada, Juristat, Catalogue no. 85-002-X, (Ottawa: Minister of Industry, 2016).
[5] Deepa Mattoo, “Barriers and Challenges to Enhancing the Safety and Security of Marginalized Women” (June 9, 2017) Safety and Security of Women: A Joint CCIAWJ and NJI Program.
[6] Ibid.
[7] Yvonne Boyer & Peggy Kampouris, Trafficking of Aboriginal Women and Girls (Ottawa: Public Safety Canada, 2014) at pp. 8-11.
[8] Ibid at p. 2.
[9] Ibid at pp. 2-3 and 54.
[10] Laura Barnett, Trafficking in Persons: Background Paper, Publication no. 2011-59-E, Parliamentary Information and Research Service, revised 15 January 2016 (Ottawa: Library of Parliament, 2016), at p. 2.
[11] Adrian Morrow, “How Hungarian criminals built a slave trade in Ontario”, The Globe and Mail Online (April 2, 2012), online: theglobeandmail.com.
[12] P.N. v. F.R. and another (No. 2), 2015 BCHRT 60.
[13] National Action Plan at p. 12.
[14] National Action Plan at pp. 14-15.
[15] Ibid at p. 12; Yvonne Boyer & Peggy Kampouris, Trafficking of Aboriginal Women and Girls (Ottawa: Public Safety Canada, 2014) at p. 5.
[16] Ibid at p. 18.
[17] Ibid at p. 19.
[18] An Act to amend the Criminal Code (trafficking in persons), S.C. 2012, c-15.
[19] Canada, Department of Justice, “Bill C-38: An Act to amend the Criminal Code (exploitation and trafficking in persons) – Questions and Answers” (April 12, 2017) online: http://www.justice.gc.ca/eng/csj-sjc/pl/shtl/qa.html
[20] Canada, Library of Parliament, “Bill C-38: An Act to amend the Criminal Code (exploitation and trafficking in persons)” by Laura Barnett, Legislative Summary, Publication No. 42-1-C38-E, (Ottawa: LOP, 1 March 2017) at p. 5; Canada, Department of Justice, “Bill C-38: An Act to amend the Criminal Code (exploitation and trafficking in persons)” Explanatory Note, (February 10, 2017) online: http://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c38.html
[21] Laura Barnett, Trafficking in Persons: Background Paper, Publication no. 2011-59-E, Parliamentary Information and Research Service, revised 15 January 2016 (Ottawa: Library of Parliament, 2016), at p. 9.
[22] Ibid at p. 3.
[23] Ibid at p. 47.
[24] Ibid at p. 54.

 

 

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