Who is a trafficked person?
Trafficked persons are people who are in a situation of exploitation, which
may be for forced labour or sexual exploitation. Traffickers use force,
fraud or the vulnerability of the trafficked persons to bring them and hold
them in the situation of exploitation. Trafficked persons may have been
brought across an international border, although this is not always the case.
Trafficked persons may be men, but most are women or children.
Some situations of trafficking in Canada:
- Filipina woman enters Canada as the
servant of an international student and his family. While in Canada, she
is not allowed out of the house and is not paid for her labour. She
is able to make contact with a community organization and leaves the family.
She then faces deportation from Canada. The intervention of a lawyer
is required to persuade an immigration officer to give her a short stay of
removal so that she can start legal proceedings to recover wages for the
work she did for the family. When the lawyer asks the immigration officer
whether she is going to take action against the employer (i.e. the person
who trafficked the woman), the officer responds, “That’s not my job.”
- An Ethiopian woman enters Canada as
a servant for a family visiting Canada. The family holds her passport
and keeps her under strict control. She manages to escape and relates
how she entered into a contract with an agent in her country to be a servant
to the family. She was severely mistreated by the family before coming
to Canada. Now that she has left her employer, the agent is threatening
to go after her family for breach of contract.
- Four Korean women and one man are arrested
in an alleged bawdy house. The man is allowed to return to Korea.
The women are put into detention and face deportation. They say that
they came to Canada under their own volition, but it is impossible to know
if the whole story is being told as long as they are not in a secure situation.
Under the current immigration law, even if they were being exploited, there
is no reason for them to speak openly about it, because they would still
be subject to detention and deportation.
- A Chinese youth has entered Canada
after traveling in a group of 15 people on a long journey through many countries
in Asia, Africa and South America. The circumstances of the case raise
suspicion of smuggling or trafficking. On this basis the youth is held
in detention. In its decision to maintain him in detention the Immigration
and Refugee Board states: “One has to bear in mind that it certainly cost
your family a lot to pay the organization for this kind of trip and in all
likelihood your family is indebted for many future years and I think that
on your part, if I were to order release, you would feel obligated to meet
your part of the deal and of the contract, so your family does not lose all
that money. I am also of the opinion that the smuggling organization
will remain around you, so to exercise control over you and influence you
in your decisions.” Detention is the only solution being offered by
the government to this apparent threat of control.
Trafficking and the Immigration and Refugee Protection Act
The only references to trafficking in Canada’s immigration legislation are
in an enforcement context. There are provisions to prosecute traffickers.
As for victims of traffickers, their status simply makes them more liable
to detention, because it is one of the factors to consider in decisions to
detain (Immigration and Refugee Protection Regulations, 245 (f)).
In the case of children, the law also promotes detention of victims of trafficking
by including in the special considerations for minors: “the risk of continued
control by the human smugglers or traffickers who brought the children to
Canada” (Immigration and Refugee Protection Regulations, 249 (c)).
The Immigration and Refugee Protection Act offers no measures of protection
specifically for trafficked persons. They may be able to make a refugee
claim, and some have received protection in that way. However, a refugee
claim will not necessarily help because the refugee definition focuses on
future risk in the country of origin, rather than harm experienced in Canada.
The risks faced by trafficked persons if deported to their home country are
often not well-documented. The CCR has raised with Citizenship and Immigration
Canada the need for urgent protection measures for trafficked persons but
has received no commitment to act.
Canada is a signatory to the Protocol to Prevent, Suppress and Punish Trafficking
in Persons, especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime (also known as the Palermo
Protocol). As suggested by its name, this instrument focuses on trafficking
as a crime, rather than as a human rights issues. As a result, the victims
of trafficking are neglected. Nevertheless, the Protocol contains Article
6: Assistance to and protection of victims of trafficking on persons (which
calls for measures to provide for the physical, psychological and social
recovery of victims of trafficking) and Article 7: Status of Victims of trafficking
in persons in receiving States (which calls for States to consider adopting
measures “that permit victims of trafficking in persons to remain in its
territory, temporarily or permanently, in appropriate cases.”)
Canada has human rights obligations towards
persons who are trafficked and particular obligations towards children, under
the Convention on the Rights of the Child.
Safe third country agreement
The governments of Canada and the USA signed a safe third country agreement
in December 2002 and its implementation is currently under preparation.
The agreement would, with some exceptions, deny refugees the right to make
a refugee claim in Canada if they are at the US-Canada border. Closing
this door to refugees is likely to force some into the hands of smugglers
and traffickers who will offer, for a price, irregular and potentially dangerous
ways to enter Canada to make a claim. The Standing Committee on Citizenship
and Immigration raised its concerns about this risk in its report on the safe
third country agreement in December 2002.
CCR trafficking project
The Canadian Council for Refugees launched its project in 2003 with the
goal of developing the capacity among Canadian NGOs to respond appropriately
to the needs of trafficked persons in Canada, especially women and girls,
and to work towards the eradication of forced labour in Canada. The project
organized a series of meetings, regionally and nationally, to consult, network
and develop recommendations. A report, Trafficking in Women and
Girls, Report of Meetings, was produced and is available at www.trafficking.ca. Since then,
the project has supported follow up meetings in the regions focusing on moving
forward with the recommendations, particularly with respect to raising public
awareness and advocating for measures to protect trafficked persons.