Trafficked Persons: Avoiding Collateral Harm

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Over the last year, the CCR has been working to build the capacity of refugee and immigration lawyers across Canada to identify and respond to the needs of trafficked persons and vulnerable migrants. This is part of a project to improve access to legal services and to justice for trafficked or potentially trafficked non-citizens.

Towards these objectives, the CCR conducted a legal needs consultation that included administering a questionnaire and conducting a focus group discussion with immigration and refugee lawyers. Respondents completed the questionnaire directly or through guided phone interviews. The focus group discussion took place through a virtual meeting platform.

During the consultation process, respondents named working with people in three types of trafficking situations: sex trafficking, labour trafficking, and forced marriage. The consultation was valuable in generating knowledge about legal challenges, gaps in services and legislation, and promising practices in representing trafficked and potentially trafficked persons in Canada. It was also instrumental in guiding the development of a legal education methodology as well as resource materials.

Below is a summary of the main themes and needs emerging from the consultation.

Trafficking Assessment

  • There is no cookie cutter approach, assess based on the narrative provided by persons with lived experience.
  • Human trafficking needs to be understood and conceptualized in a broader framework of exploitation, coercion and power imbalance. The conceptual framework should also reflect the role of the state in creating the conditions for trafficking (eg. the Temporary Foreign Worker Program –TFWP).
  • Tools and resources are helpful for creating a baseline of understanding and developing a more systematic approach to service provision.
  • There is a service gap in accessing legal advice and assistance. In particular:
    • There is a lack of resources devoted to labour trafficking compared to sex trafficking, this is especially so for those without status or with precarious status.
    • The service gap is a trust gap – there is a lack of trust by communities most likely to be trafficked (eg. migrant workers, sex workers, undocumented workers, etc.); all service providers should operate under the principle of access without fear.
    • The legal aid system across all provinces needs proper funding for recourses to support trafficked and potentially trafficked persons (e.g. Temporary Residence Permits -TRPs) – currently there is uneven funding between province

Legal Remedies and Responses

  • The criminalization and rescue framework of trafficking legislation creates barriers to protection, it is not rights-based.
  • Immigration laws and punitive criminal laws can create collateral damage, place people at risk.
  • It is difficult to access legal remedies (whether TRPs, Humantiarian and Compassionate grounds, employment or human rights remedies), especially for those most vulnerable, including migrant workers with precarious or undocumented status, indigenous women, and migrant sex workers.
  • A discretionary approach to federal recourses (pursuing TRPs or permanent immigration pathways, pursuing trafficking offences) as well as provincial labour and human rights recourses is inadequate and can create harm – need to be more rights based.
  • There is a disconnect between the issues and the response by authorities – need to bring institutions up to speed about exploitation and trafficking, make processes more transparent and timely.
  • Need to go beyond thinking about criminal law and pay more attention to strengthening those that focus on reparations for the survivor, from a rights-based perspective (eg. Human Rights and employment standards legislation).
  • Law reform is needed in order to remove barriers to justice. This includes reform in the following areas:
    • Reform measures in the TFWP that create vulnerabilities and risks;
    • Remove the criminalization of sex work, which puts people at risk in many ways;
    • Reconsider the fear for safety requirement in trafficking legislation, which makes the evidentiary burden too high;
    • Ultimately need to have access to permanent status (eg. permanent residence upon arrival, Humanitarian and Compassionate branch for trafficking); open work permits such as those introduced in B.C. may be a good intermediary measure – this should also be introduced in other provinces.

Best Practices

  • Connect and collaborate with community organizations, use a team approach.
  • Be creative and strategic about gathering evidence/seeking remedies (sometimes seek one remedy as a means towards gathering evidence for another remedy).
  • Use trauma-informed practice to ensure the respect of survivors, provide realistic and informed options (disclose risks).

Read the full report on Trafficked Persons: Avoiding Collateral Harm - A Needs Consultation on Access to Justice for Trafficked Persons and Those at Risk.

Also read the resource guide: Human Trafficking and the Law: How to Protect Trafficked Persons