"There are continual attempts by undesirables of alien and impoverished nationalities to enter Canada, but these attempts will be checkedas much as possible at their source." Canadian immigration official, 1923


In recent years there has developed an increasing international focus on combatting migrant smuggling and trafficking in persons. Among other regional and international initiatives, two of the first three protocols to the UN Convention against Transnational Organization Crime (TOC) currently being negotiated are on migrant smuggling and trafficking in persons (the third relates to firearms). This suggests the priority accorded to the issue by the international community.

Despite the fact that these discussions have an impact on refugees seeking asylum, refugee advocates have been largely absent. On the issue of trafficking, however, human rights and women's organizations have been very active.

This paper reviews the issues and particularly the draft protocols, from firstly a refugee perspective, and secondly a migrants' rights perspective, as they might apply in Canada and similarly situated countries. It also includes some recommendations for a Canadian response to trafficked persons.


Smuggling and trafficking have been distinguished, the first referring to illegal entry into a country, the second to some form of enslavement of exploitation of the person trafficked(1). There is far from unanimity on the definitions or the distinction, and the terms are often used interchangeably.

The UN draft protocols offer the following definitions:

"Smuggling of migrants"(2) refers to the intentional procurement for profit of the illegal entry of a person into and/or illegal residence of a person in a State of which the person is not a national or permanent resident.(3)

"Trafficking in persons" means the recruitment, transportation, transfer, harbouring or receipt of persons, either by the threat or use of abduction, force, fraud, deception or coercion, or by giving or receiving unlawful payments or benefits.(4)

Some commentators emphasize the notion of "voluntariness" to distinguish between people who are smuggled and people who are trafficked. While people who are smuggled are assumed to want entry into the other country, people who are trafficked are unwilling victims, who have been deceived or have been abducted by force.(5)

Some definitions of trafficking do not require crossing of an international border, but only that the person trafficked be moved from the home community. This is true of the definition used by the International Organization for Migration, for whom trafficking occurs when:

  • a migrant is illicitly engaged (recruited, kidnapped, sold, etc.) and/or moved, either within national or across international borders;
  • intermediaries (traffickers) during any part of this process obtain economic or other profit by means of deception, coercion and/or other forms of exploitation under conditions that violate the fundamental human rights of migrants.
The Organization for Security and Cooperation in Europe (OSCE) has defined trafficking in human beings as follows:
  • All acts involved in the recruitment, abduction, transport (within or across borders), sale, transfer, harbouring, or receipt of persons,
  • by the threat or use of force, deception, coercion (including abuse of authority), or debt bondage,
  • for the purpose of placing or holding such person, whether for pay or not, in involuntary servitude, forced or bonded labour, or in slavery-like conditions (including forced prostitution),
  • in a community other than the one in which the person lived at the time of the original deception, coercion or debt bondage.(6)

The US Government definition does not even seem to require displacement: "The term "trafficking" means recruiting or abducting, facilitation, transferring, harboring, or transporting a person by the threat or use of force, coercion, fraud or deception; or by the purchase, sale, trade, transfer, or receipt of a person for the purpose of subjecting that person to involuntary servitude, peonage, slavery, slavery-like practices, forced or bonded labor or services, or other criminal exploitation of workers. This definition includes cases of trafficking into the sex industry."(7) 

Historical background

According to the modern international régime, states have sovereignty to control who enters their territory. The right to freedom of movement between states is not internationally recognized, although Article 13 of the Universal Declaration of Human Rights recognizes everyone's right to leave any country, including their own.(8) Needless to say, large numbers of people nevertheless try to enter without authorization, for political, economic and personal reasons. The 1980s and 1990s saw Western and other countries putting increasing energy into stopping "irregular" or "illegal" migration, including in circumstances when it was clear that the migrants being interdicted were people seeking asylum from persecution. "Irregular movements" were identified as a threat to national stability, an issue of international crime along with money laundering, smuggling, drug trafficking, arms trafficking, mafia-type criminality and terrorism.(9) Migrants, including refugees, trying to cross borders came increasingly to be seen in the popular imagination as belonging to the undesirable and criminal class. Interdiction techniques widely used include visa requirements, reinforced border controls, carrier sanctions, immigration officials posted in foreign airports, surveillance at sea and interdiction of boats and cooperation agreements between countries.

The more states invest in measures to prevent "improperly documented arrivals", the more those seeking unauthorized entry must have recourse to smugglers (also known as "coyotes" and "passeurs") and the higher the price they are charged and the more dangerous the routes proposed to them.

Since interdiction measures have never been more than minimally successful in preventing the arrivals of undocumented migrants(10), governments have also relied heavily on techniques of deterrence, i.e. making the situation of those who do enter irregularly so unpleasant that others will be discouraged from following their example.

At the beginning of the 1990s, the more specific problem of trafficking began to attract increasing attention. Following the break-up of the former Soviet Union, large numbers of women and girls were trafficked to Western Europe, often to prostitution(11). Asia had already emerged as one of the most important source areas of trafficked women, who end up either within the region or elsewhere. Other regions of the world are also affected, as sources, points of transit and/or destination.

The US government estimates that there are 1-2 million women and children trafficked annually around the world and that approximately 50-100,000 women and children are trafficked into the U.S. each year, primarily from S.E. Asia and the former Soviet Union.(12)

Increasingly NGOs and then international institutions have been addressing the issue of human trafficking, and specifically trafficking in women. For example, in 1991 OSCE states committed themselves to "eliminate ... all forms of traffic in women ..." (Moscow Document) and later, in the Stockholm Declaration (1996) the OSCE Parliamentary Assembly expressed concern about trafficking and recognized its link to economic transition and the problem of organized crime.

In the Asia-Pacific region, an International Symposium on Migration in April 1999 developed the Bangkok Declaration on Irregular Migration, where the participating countries declared themselves "gravely concerned by the increasing activities of transnational organized criminal groups and others that profit from smuggling of and trafficking in human beings, especially women and children, without regard to dangerous and inhumane conditions..."

The International Organization for Migration (IOM) has involved itself in significant ways in combatting trafficking in migrants. It declares itself "particularly concerned about those migrants who are, or have been, deceived or coerced into situations of economic exploitation, which unfold through forced labour, forced servitude, coercion, debt bondage, or other violations of their fundamental human rights". In addition "the Organization is concerned about trafficking, as it poses a migration management problem to governments of sending countries as well as transit and receiving countries, because orderly migration and several types of national legislation, including migration legislation, are violated."(13)

The United Nations has also taken on the issue of trafficking with greater insistence. For example, in March 1994 the United Nations Commission on Human Rights adopted Resolution 1994/45 calling for the elimination of trafficking in women for the purposes of prostitution. The Beijing Platform for Action emphasized trafficking in women as one of the forms of violence against women needing to be addressed by the international community. The General Assembly adopted resolutions on traffic in women and girls on 12 December 1997 (52/98) and 1 February 1999 (53/116).

Formal UN negotiations on the protocols to the Convention Against Transnational Organized Crime began in January 1999 (although drafts had been discussed before that date).  


  • Relative evils
People smuggling is undeniably a nasty business. It costs untold numbers of people their lives (drowned, suffocated, shot, frozen or crushed to death). Many others are raped or suffer violence and traumatic experiences. People are routinely cheated out of thousands of dollars. After a painful journey, some find themselves detained and deported back home.

If smuggling is bad, trafficking is much worse. People, especially women and girls, are deceived or abducted, held in a form of modern slavery, forced into prostitution, intimidated and subjected to violence.

People smuggling, despite its evils, has also been life-giving. It has made it possible for significant numbers of people to flee persecution and reach a place of asylum when no government was willing or able to offer an escape route. It has allowed them to exercise their human right to seek and to enjoy in other countries asylum from persecution (Article 14, Universal Declaration of Human Rights). For others, smugglers have offered a way out of a situation of misery and an opportunity for a new life of dignity.

Even some of the people who are trafficked, knowing the wrongs of their situation of bondage, may still prefer it to what they left behind, either for themselves or for what it enables them to do for family members. This of course does not in any way justify the abuses perpetrated by the traffickers. But it is relevant to any discussion about solutions to the problem of trafficking.

  • Right to seek asylum
Article 14 of the Universal Declaration of Human Rights recognizes that "Everyone has the right to seek and to enjoy in other countries asylum from persecution." Unfortunately, neither international human rights instruments nor states' actions have done much to advance the right to seek asylum. People facing persecution face enormous obstacles in attempting to flee, both from their persecutors who may try to prevent them from leaving and from other states that are attempting to control their borders. Interdiction programs reinforce the barriers which the persecuted have to overcome to reach asylum. People smugglers and even traffickers are sometimes the only options left for desperate people trying to save their lives. Thus interdiction programs are one of the factors feeding the demand for people-smugglers. Yet states seem rarely if ever to discuss how their interdiction programs affect the rise in people smuggling. Nor do they address the question facing persecuted people: "How are they supposed to save their lives?"
  • Who is the victim?
There is a equivocation about who is the victim of the people smugglers and even of the human traffickers. Are the victims the people who are trafficked or the country into which they are being trafficked? Judging from the discourses of governments of the North, there is some confusion.

This uncertainty is illustrated in the case of Australia, which has been particularly energetic and outspoken on this issue. According to the Statement by the Australian Delegation at the Regional Tripartite Consultations on Resettlement, Auckland, 17-18 August 1999, "All of those who take advantage of what traffickers have to offer are vulnerable and open to blatant exploitation.... UNHCR is a key player in any partnership to address the protection needs of those who fall prey to traffickers". Later in the same speech, the emphasis is placed on trafficking as a problem for Australia: "Large scale people trafficking is a relatively recent phenomenon confronting developed countries in the international community".

The June 1999 Report of the Prime Minister's Coastal Surveillance Task Force addresses the problem of people smuggling and illegal immigration but does not mention trafficking: this perhaps suits the militaristic approach which requires an unambiguous enemy.(14) The report views people smuggling as a problem in which Australia is the victim. For example, paragraph 8 states that "[t]he level and geographic location of our representation overseas should be reviewed at regular intervals to meet the ever changing threat." (See also references to "the threat from west" (para. 28) and "the threats involved" (para. 29)).

When we look behind the rhetoric of concern for the migrants, we sometimes find little or no concrete action undertaken by governments on behalf of the victims of traffickers. Despite the Australian representative's words about the vulnerability of the trafficked and the need to ensure refugees are protected, where there is action it is action geared to protecting Australia. Migrants who arrive irregularly are detained. And, as part of its crackdown on "illegal immigration" and "people smuggling", Australia in October 1999 brought in a proposal to penalize refugees who arrive using false documentation by granting them only temporary protection (with probable deportation after three years).(15)

The United States and Canada have also pursued policies of detention in response to the arrivals by boat of Chinese, despite the fact that they are commonly described as being brought over by traffickers. Such a treatment not only penalizes the victims, but also reinforces in the public (and official) mind the notion that the trafficked persons are the criminals.

  • Distinguishing between people who are smuggled and people who are trafficked
As noted above, there has been increasing emphasis given to distinguishing between smuggling and trafficking. Those who are trafficked are being exploited in abhorrent ways and are deserving of protection. This is recognized by states participating in various regional and global agreements and action plans and in the draft UN Protocol on trafficking. These all call for measures of protection to be offered to victims of trafficking. Yet very little thought seems to have gone into how on the ground people who are being trafficked are to be identified. If authorities have no means of determining among the intercepted or arrested who is being trafficked, how do they propose to grant them the measures of protection they are committing themselves to?

Conversely, where states in fact use the fear of trafficking as a motivation for more punitive measures, it is those who are not being trafficked that have an interest in having the determination made. This is a real dilemma facing Chinese nationals in detention in Canada, where release is being denied based on the hypothesis that the individuals will disappear into the hands of their presumed traffickers if released (despite the fact that there is no specific evidence to show that the individuals were being trafficked). 

  • Focus on borders
In much of the Western discourse about the issues of people smuggling/trafficking, the major preoccupation centres on the "assault" on the borders and on actions to control the borders. The crossing of borders is, however, only one element of trafficking (and according to some definitions, not even a necessary one). Surely it is at least as important to address the trafficking at other elements in the process: within the source country and within the country of destination? As most states recognize, they will never achieve total control over their borders and unknown numbers of people enter undetected. Trafficking may also involve legal entry, for example on a visitor visa, on a work permit as a dancer (in Canada at least), or perhaps as a fiancée or spouse through a mail-order bride business.(16) For these reasons, trafficking needs to be addressed as a problem of slavery within the country. 
  • Questions about the well-foundedness of claims about the extent of the "problem" of people smuggling
In August 1998 the Solicitor General of Canada released highlights of an Organized Crime Impact Study (the full study was not made public). Migrant smuggling was one of the organized crime issues studied: the annual cost was estimated at $120-$400 million. The study contains a number of very basic errors in this section which puts into question their conclusions (and the expertise of the "experts" they used as sources). Even so, the financial costs they give for migrant smuggling are only a tiny fraction of the costs estimated for other areas of organized crime (e.g. money laundering = $5 - $17 billion a year). Despite this, media coverage of the study highlights focused overwhelmingly on migrant smuggling. This suggests that the significance accorded to the problem may be due to factors other than the objective scale of costs. 
  • Addressing root causes
As is widely recognized, the root causes of people smuggling and human trafficking lie in economic, political and social realities, and in the harsh inequalities of opportunity. People who use people smugglers or fall victim to traffickers left home for a reason: sending them back home will not change that reality. The root causes need to be addressed. Approaching the issue from an enforcement standpoint simply reinforces a divisive current reality, where a minority of the world's population (mostly white) has wide range of opportunities, including opportunities to move freely around the world, while a majority (mostly people of colour) are denied those opportunities. 


Negotiations began in April 1998 on the United Nations a Convention against Transnational Organized Crime (TOC)(17). Three protocols to the Convention are being developed concurrently: one on migrant smuggling, one on human trafficking and one on firearms. An objective of the end of the year 2000 has been set for the completion of negotiations.(18)

The draft protocols (and other information relevant to the negotiation process) are available on the internet here

Summaries of main provisions

The Protocol against the smuggling of migrants by land, air and sea: Austria and Italy have the lead role.

Purpose: to criminalize migrant smuggling and promote cooperation among states in actions against people smuggling. (Art. 3)

Criminalization: states will adopt legislation criminalizing people smuggling (but those being smuggled into a country are not criminalized) (Art. 4)

Refugee convention: provisions are without prejudice to state obligations under the Refugee Convention (Art. 5)

Measures against smuggling of migrants by sea: actions to inspect, board, exchange information about, etc, ships suspected of people smuggling (but actions to be in conformity with international law, environmentally sound and humane and safe). (Art. 7)

Information: states will do public information, exchange information among themselves. (Art. 10)

Prevention: states will take action to detect and prevent people smuggling between its territory and others. (Art. 11)

Control of documents: states will ensure quality of documents they issue. (Art. 12)

Training: states will provide specialized training for officials in preventing migrant smuggling (and on protecting the rights of victims). (Art. 14)

Return of smuggled migrants: states will accept back without delay nationals who have been smuggled. (Art. 15) 

The Protocol to prevent, suppress and punish trafficking in persons, especially women and children: USA and Argentina have the lead role.

Purpose: undecided (there are two options circulating, but both are basically about preventing, suppressing and punishing human trafficking). (Art. 1)

Criminalization: states will criminalize human trafficking. (Art. 3)

Protection of trafficked persons: states will provide various measures of protection for trafficked victims against their traffickers who are being prosecuted and opportunities of seeking damages from traffickers; states also to consider giving victims temporary or permanent permits, and consider their status from a humanitarian and compassionate viewpoint. (Art. 4-5)

Repatriation of victims: states will accept nationals back without delay. (Art. 6)

Law enforcement, border controls, travel documents: states will cooperate with each other, control their borders, ensure quality of documents. (Art. 7, 8, 9)

Savings clause: nothing in Protocol to affect rights and obligations under international law, especially the Refugee Convention, and measures must be non-discriminatory. (Art. 13) 


Smuggling protocol(19) 

A.    In the preamble, it is stated that "the smuggling of migrants may lead to the misuse of established procedures for immigration, including those for seeking asylum". Nowhere is it stated that for many fleeing persecution, smugglers offer their only opportunity to seek asylum from persecution.
Recommendation: make clear in the preamble that there is no necessary connection between using people smugglers and misuse of asylum procedures, and that many refugees have no choice but to use people smugglers to save their lives.

B.    Although the draft protocol in the preamble (j) speaks of the "need to provide humane treatment and protect the full human rights of migrants", the articles of the Protocol contain next to nothing to secure the protection of the migrants' rights (there is a reference to training of personnel on "recognizing the need to provide humane treatment and protect the human rights of migrants" (Art 14.2 (e)) but what more specifically those rights might be is not spelled out). As pointed out by the UN High Commissioner for Human Rights, "the vulnerability of migrants, in particular irregular or illegal migrants, as a result of their precarious situation in society often leads to violation of their most basic human rights ... any instrument dealing with [people smuggling] -- irrespective of its perspective -- must commit itself to preserving and protecting the fundamental rights to which all persons, including illegal migrants, are entitled."(20)

Recommendation: develop in the protocol the consideration of the rights of the migrants and states' obligations to protect them. This should include the right to make a refugee claim, as well as other rights under international human rights instruments.

C.    Interdiction measures frequently have a discriminatory impact, entailing inconvenience and humiliation or worse for some legitimate travellers, who are considered suspicious because of their ethnicity or the colour of their skin.

Recommendation: include a provision in the preamble articulating the principle of non-discrimination and an article in the protocol committing states to apply the protocol in a non-discriminatory manner and to monitor implementation in this regard.

D.    Article 5 states that the Protocol is without prejudice to obligations of states under the 1951 Convention and the 1967 Protocol. This leaves in question the obligations of states signatory to this Protocol but not to the Refugee Convention.

Recommendation: articulate the principle of non-refoulement as a principle of international law.

E.    Article 7 calls for states to cooperate "to the fullest extent possible to prevent and suppress the smuggling of migrants by sea". Although this is to be "in conformity with international law", the objective does not appear to be consistent with refugee obligations and goes beyond criminally organized smuggling. What about a boat whose passengers are refugees who have paid a sum to be taken to a country where they hope to receive asylum? Should that be prevented and suppressed?

Recommendation: Add the words "criminally organized" before "smuggling" and insert a specific reference to compliance with obligations under the 1951 Convention and 1967 Protocol.

F.    Article 7 ter requires that states "ensure the safety and the humane treatment of the persons on board" but makes no reference to protecting any refugees from refoulement.

Recommendation: include reference to non-refoulement obligations of states.

G.    Article 9 directs states to impose carrier sanctions. This goes beyond criminally organized smuggling, since carrier sanctions do not specifically deter criminally organized smugglers and may in fact force desperate people, including refugees, into the hands of the criminally organized. Carrier sanctions also often lead to discrimination against legitimate travellers.

Recommendation: delete reference to carrier sanctions. Or include imposition of a requirement on non-discrimination in the implementation of carrier sanctions.

H.    Article 10 calls for information measures to increase public awareness of the fact that the smuggling of migrants is a criminal activity ... and that it poses serious risks to the migrants involved." Since refugees may use people smugglers and the notion of criminality is frequently transferred in the public mind to refugees, it would be appropriate to take positive measures to rebut these misconceptions.

Recommendation: add reference to measures to increase public awareness that refugees may have no other options but to use people smugglers in order to escape persecution. More generally include reference to promoting public awareness of the need to protect the human rights of the migrants.

Trafficking protocol(21)

I.    This protocol is designed (according to the draft "purpose statement") in part to encourage states to ensure that the victims of trafficking, particularly women and children, receive protection. It never, however, addresses the question of how the victims of trafficking are to be identified. Without an effective mechanism for such identification it is not at all clear how trafficked persons will benefit from the protections recommended in the protocol.

Recommendation: include in the protocol provisions addressing the identification of trafficked persons.

J.    The protocol is intended, according to its title, to "prevent, suppress and punish trafficking in persons". In fact the protocol is minimally concerned with preventing trafficking (Article 10, which deals with prevention, is brief and extremely general). There is also relatively little in the protocol about punishing trafficking, beyond the obligation to criminalize trafficking offences (Article 3). The protocol seems to be largely concerned with trafficking at the point of border crossing. Focusing on this element on trafficking is not likely to be effective in combatting trafficking, since those caught will mostly be the trafficked persons themselves. This emphasis also neglects the root causes of trafficking, the "recruitment" (including possible purchase or abduction), and the exploitation of trafficked persons at the receiving end (should they successfully reach their destination). It also ignores the fact that trafficked persons may gain prima facie legal entry to another country.

Recommendation: address more equitably the full scope of trafficking, including in the countries of origin and the countries of destination (rather than treating it as simply a border crossing problem).

K.    Article 4 deals with assistance for and protection of victims of trafficking. The kinds of assistance to be given are very general and limited by reference to "in appropriate cases". Since the protocol never defines the appropriate cases these provisions may be virtually meaningless.

Recommendation: omit use of "appropriate" and replace with firm commitments for assistance. Specific reference should be made to access to NGO support and trafficked persons' right to receive full information about their situation and options. Their right to privacy should be fully protected. Special sections should address the needs of children and youth who are victims of trafficking, and the needs of women.

L.    Detention has often been used in response to the discovery of trafficked persons. This is not an appropriate way to treat people who have been victims of exploitation.

Recommendation: direct that persons who have been trafficked not be detained or charged under immigration laws (or for involvement in the sex industry).

M.    There is no mention under the section on protection of trafficked persons of their right to make a refugee claim.

Recommendation: include an explicit reference to states ensuring that trafficked persons have access to the refugee determination process.

N.    Article 5 proposes that victims of trafficking be allowed to stay in their territories temporarily or permanently "in appropriate cases". Again there is no clarification of what cases would be appropriate. Giving trafficked persons an alternative to immediate deportation is necessary to avoid further victimization.

Recommendation: direct states to give temporary permits in all cases and permanent permits in appropriate cases.

O.    "Repatriation of victims" is addressed in Article 6. The draft however contains no reference to voluntary repatriation, nor to safeguarding the protection or other interests of the returnees after their arrival. There are no measures to prevent revictimization of those returned. It is therefore not clear how what is proposed differs from "deportation of victims".

Recommendation: call for repatriation to be voluntary and for measures to ensure the protection of those repatriated on return.(22)

P.    States have particular obligations to ensure the protection of unaccompanied children and youth during repatriation. This has not been addressed.

Recommendation: introduce provisions ensuring that the best interests of the child are respected before, during and after repatriation.

Q.    Article 8 addresses border controls. As with the smuggling protocol, there needs to be attention to protecting freedom of movement and non-discrimination in the application of the measures to control borders.

Recommendation: include a reference to Article 13 of the Universal Declaration of Human Rights (the right to leave one's country), to the principle of non-discrimination and the need to protect freedom of movement.

R.    Article 10 on preventing trafficking and protecting trafficked persons lacks detail and force.

Recommendation: develop Article 10 to include specific measures to prevent trafficking and ensure that trafficked persons are protected.

S.    Trafficked persons are frequently the victims of xenophobic and ill-informed public opinion, who view them as perpetrators rather than victims of crime. This needs to be addressed through public information campaigns.

Recommendation: add an article calling for information and mass media campaigns to educate populations in receiving states about the realities of trafficking. 


The issue of trafficked (or potentially trafficked) persons in Canada has recently attracted enormous attention and considerable controversy, following the arrival in the summer of 1999 of several hundreds of Chinese people on the West Coast. These people are suspected of being trafficked persons, destined for some form of enslavement in North America, probably in the US.

How should Canada be dealing with such people?

Detention has been one of the primary responses of the Canadian government, with the result that hundreds of people have been detained for months, mostly in British Columbia but also elsewhere. The right to liberty is a fundamental right. It is not appropriate to add to the victimization of victims of traffickers by depriving them of their liberty. This is especially true in the case of minors or when the detention is long-term or in jails alongside criminals. (Detention, it is worth noting, is also a very expensive way to respond to the problem).

One of the concerns frequently raised in relation to arrivals of potentially trafficked people is abuse of the refugee claim process. Where significant numbers of people make refugee claims even though they do not have any fear of persecution, there is a burden placed on the refugee determination system. There is also frequently significant negative publicity about the movement. This is hurtful both to refugees, since public opinion often fails to distinguish between "bogus" and genuine, and to victims of traffickers, who are reviled as bogus claimants, rather than understood as people who have been exploited by criminals.

All trafficked persons must have access to the refugee claim process, and many may be Convention Refugees. For those who are not refugees, however, if making a refugee claim is the only option given to them, it is not surprising that they take it. People who have been trafficked need to be offered some chance of improving their situation. This does not necessarily mean that they should stay in Canada: it does mean offering them something other than indefinite detention followed by deportation to the situation they left behind.

Where trafficked persons are being sent back to their country of origin, there needs to be some effective mechanism to oversee the protection of their basic rights in the home country, likely through an international organization. This would include avoiding the "revolving door" potential, that is ensuring that people returned do not find themselves once again in the hands of the traffickers.

Canada should also avoid penalizing trafficked persons under immigration laws. For example, people who are deported from Canada are not allowed to re-enter Canada (unless they have permission from the Minister).

As noted by the United Nations High Commissioner for Human Rights in her informal note (AC.254/16, 1 June 1999), children have special rights under international law and child victims of trafficking have special needs that must be recognized and met by States parties. These needs are little developed in the international discussions and, given the numbers of minors suspected of being victims of traffickers currently in immigration processing in Canada, and the serious concerns about their treatment, it is particularly important that these issues be explored.

Women are among the prime targets of traffickers, frequently destined by them for sexual exploitation. Special measures need to be in place to respond to their situation.

Effective access to and services from non-governmental organizations, including groups from their own communities, should be assured for trafficked persons.

Appropriate health services should be made available, particularly taking into account the health risks associated with trafficking.

The privacy of trafficked persons should be respected. (In recent months, media interest in the Chinese in detention has been high and even minors have been exposed to cameras and their personal information made public).

In developing a response to trafficked persons, it is crucial that some mechanism be established for distinguishing the victims of traffickers. Currently, people in immigration processing are merely suspected of being trafficked, rather than being determined to be trafficked persons. (The suspicion has negative rather than positive consequences, as it leads to detention, frequently long-term).

International discussions about responding to trafficking have generated many recommendations that can be a useful guide for action here in Canada. They focus on:

  • preventing trafficking, including by addressing the economic and other causes.
  • prosecuting the traffickers.
  • protecting trafficked persons.
The last is particularly relevant for considering how Canada should be treating trafficked persons in Canada. Elements of the recommendations include:
  • developing a coordinated national strategy and ensure ongoing coordination between government departments and between government and NGOs.
  • offering victims of trafficking temporary or permanent permits as well as access to shelter, counselling, information, etc.
  • ensuring victims of trafficking have access to NGOs that can offer them assistance.
  • making available witness protection programs.
  • establishing policies and providing training to government officials.
Extracts from relevant international sources

UN General Assembly Resolution (A/RES/53/116 ) Traffic in women and girls, (1 February 1999), especially:

  • ... encourages Governments to intensify collaboration with non-governmental organizations to develop and implement programmes of effective counselling, training and reintegration into society of victims of trafficking, and programmes that provide shelter and helplines to victims or potential victims;
  • Invites Governments to take steps, including witness protection programmes, to enable women who are victims of trafficking to make complaints to the police and to be available when required by the criminal justice system and to ensure that during this time women have access to social, medical, financial and legal assistance, and protection, as appropriate;
  • Urges Governments to strengthen national programmes to combat trafficking in women and girls through sustained bilateral, regional and international cooperation, taking into account innovative approaches and best practices ...
  • Invites Governments, once again, with the support of the United Nations, to formulate training manuals for law enforcement and medical personnel and judicial officers who handle cases of trafficked women and girls, taking into account current research and materials on traumatic stress and gender-sensitive counselling techniques, with a view to sensitizing them to the special needs of victims.
Proposed Action Plan 2000 for activities to combat trafficking in human beings, OSCE ODIHR, November 1999

Action at the National Level, especially:

  • Develop a national strategy to combat trafficking, including measures to prevent trafficking, prosecute offenders, and protect the rights of trafficked persons;
  • Institute a coordinating mechanism on a national level to ensure effective coordination between different government authorities (and between government and NGOs) and to allow for a multi-disciplinary approach;
  • Establish social policies and programmes to prevent trafficking in human beings, including economic and legal measures in origin countries
  • Increase awareness about trafficking among police, judicial, immigration, and consular/embassy authorities, including the human rights aspects of trafficking and the obligation of State authorities to assist and protect trafficking victims;
  • Adopt policies and protocols to treat trafficked persons as victims of crime and potential witnesses, rather than as criminals;
  • Provide a temporary residence permit or stay of deportation (in destination or transit countries) to all victims of trafficking to enable victims to receive appropriate care and legal assistance. Permits should be extended if the trafficked person cooperates with law enforcement or if she would be endangered by repatriation;
  • Enact or strengthen laws or policies to protect trafficked persons, consistent with international human rights standards. Such measures should include shelter, physical protection, appropriate medical and legal assistance, procedural protections in criminal proceedings, access to legal redress and compensation, and return and reintegration assistance;
  • Provide resources to NGOs and social agencies providing services to trafficked persons. Take steps to identify and develop alternative sources of assistance where specialized trafficking NGOs or public funds are not available.
Informal Note by the United Nations High Commissioner for Human Rights (AC.254/16, 1 June 1999)

Re. Draft Trafficking Protocol

  • ... Assistance and protection provisions must, at a minimum, meet basic international human rights standards. From this perspective, special reference should be made to adequate housing, appropriate health care and other necessary support facilities.
  • Assistance and protection provisions should also take account of the fact that trafficked persons are usually in an extremely vulnerable situation and may be subject to reprisals from traffickers. In addition, it should be noted that trafficked persons are often subject to detention and prosecution for offences related to their status (including violation of immigration laws, prostitution, etc). States parties should be directed to refrain from detaining or prosecuting trafficked persons for such status-related offences.
  • The High Commissioner is of the view that safe and, as far as possible, voluntary return must be at the core of any credible protection strategy for trafficked persons. A failure to include provision for safe and (to the extent possible) voluntary return would amount to little more than an endorsement of the forced deportation and repatriation of victims of trafficking. When trafficking occurs in the context of organized crime, such an endorsement presents an unacceptable safety risk to victims.
  • At a very minimum, the identification of an individual as a trafficked person should be sufficient to ensure that immediate expulsion that goes against the will of the victim does not occur and that the expanded protection and assistance provisions of the Protocol suggested above become immediately applicable. The High Commissioner urges Member States to consider a provision whereby trafficked persons are provided with the option of at least temporary residence. In addition to providing a measure of safety, such a provision would encourage victims of trafficking to cooperate with the authorities and thereby contribute to achieving the law enforcement objectives of the Protocol. It is important in this context to note that victim protection must be considered separately from witness protection, as not all victims of trafficking will be selected by investigating and prosecuting agencies to act as witnesses in criminal proceedings.
  • ... The High Commissioner suggests the insertion of a provision to the effect that States Parties are to take steps (both individually and through international assistance and cooperation) to provide for the physical, psychological and social recovery of victims of trafficking.

United Nations Crime and Justice Information Network

Note by the United Nations High Commissioner for Human Rights, International Organization for Migration, United Nations High Commissioner for Refugees, and the United Nations Children's Fund on the Protocols concerning migrant smuggling and trafficking in persons

UN Global Programme against Trafficking in Human Beings

IOM site on trafficking

OSCE - ODIHR Office for Democratic Institutions and Human Rights

US Secretary of State

Australian Department of Immigration and Multicultural Affairs (DIMA)

The Prime Minister's Coastal Surveillance Task Force Report, Australia

Solicitor General of Canada, Organized Crime Impact Study

Minister of Citizenship and Immigration Canada, speech to CCR, 3 December 1999

Coalition to Abolish Slavery and Trafficking

Global Alliance against Traffic in Women

Trafficking in Human Beings, Australian Institute of Criminology

NGO Joint submission on Protocol against the Smuggling of Migrants by Land, Air and Sea ANDProtocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children

1. The Honourable Elinor Caplan, Minister of Citizenship and Immigration of Canada, has expressed the distinction between smuggling and trafficking in the following way:

"Human smuggling has been around for a while. It is a fee-for-service operation, involving simple payment for passage, and we all know that it is sometimes used by genuine refugees. Human trafficking, however, is more akin to human slavery. Its goal is profit from indentured human servitude. We know that organized criminals demand up to $50,000 dollars in unconditional debt from their naïve or misguided victims, in order to exploit their simple desire for a better life. This debt is typically repaid over a short and brutal lifetime of illicit activity, sexual exploitation and forced labour. The victims of human trafficking often have reason to fear for their lives, and the lives of their family members back home." (Address to the Canadian Council for Refugees, 3 December 1999.)

2. One of the hurdles identified by the drafters of the UN Protocols is the difficulty in finding equivalents in other languages for "smuggling", particularly in opposition to "trafficking". French, for example, would tend to use "trafic" for both.

3. Elements of this definition remain under discussion among states negotiating the protocol.

4. There is not yet agreement on the definition of trafficking. The definition cited comes from the preferred of two options being considered. Individual elements of the definition are also under discussion.

5. This distinction is not however a simple one, given the situations from which many of the smuggled/trafficked persons come.

6. Proposed Action Plan for Activities to combat Trafficking in Human Beings, Warsaw, November 1999.

7. http://secretary.state.gov/www/picw/trafficking/

8. This right is also guaranteed in Article 12 of the International Covenant on Civil and Political Rights: "Everyone shall be free to leave any country, including his own."

9. François Crépeau examines this phenomenon, particularly in the European context, in International Cooperation on Interdiction of Asylum-seekers: a Global Perspective, in Interdicting Refugees, Canadian Council for Refugees, May 1998.

10. Given the recent increase in boats of migrants from China arriving in North America, it is ironic to see the Houston Chronicle reporting on 31 October 1994 that discussions on human smuggling between China and the US "have been so productive that since June of this year U.S. officials have not detected one smuggling ship trying to bring Chinese immigrants to the United States".

11. According to the Office of Democratic Institutions and Human Rights (ODIHR) of the OSCE, in 1997 an estimated 175,000 women and girls were trafficked from Central and Eastern Europe and the Newly Independent States alone, mostly to other OSCE countries (OSCE, 1999).

12. US government web site on trafficking

13. IOM's Focus on Trafficking.

14. The report in fact calls for the Australian Defence Force to be involved in the defence of Australia's borders against illegal immigrants: it recommends, inter alia, that a uniformed Australian Defence Force officer fill the position of Director-General Coastwatch.

15. The Australian Minister for Immigration and Multicultural Affairs, Philip Ruddock, undertook in January 2000 an Overseas Anti-People Smuggling Mission, a highly publicized tour of Jordan, Syria, Turkey, Iran and Pakistan, in order "to learn more about the experiences these countries have had in dealing with people smugglers and to provide information on Australia's tough new stance to curb the flow of people arriving illegally." The Minister's media materials note that 1200 Iraqis and nearly 1100 Afghanis arrived in Australia in 1999. The likelihood of some or even most of these people being refugees is not mentioned.

16. A report by the US Immigration and Naturalization Service states that "[t]he information on trafficking suggests that mail-order brides may become victims of international trafficking in women and girls". News Release: INS Reports to Congress on "Mail-Order Bride" Businesses, 12 December 1999.

17. Negotiations are being conducted in Vienna under the auspices of the United Nations Centre for International Crime Prevention.

18. The European Union General Affairs Council recently (14-15 February 2000) authorized the EU Commission to negotiate the two Protocols, on behalf of the member states. This indicates that the members do not consider the protocols controversial.

19. Comments are with reference to the 27 December 1999 version of the protocol.

20. Informal Note, 1 June 1999.

21. Comments are with reference to the version of the draft protocol dated 1 January 2000.

22. An additional provision calling on receiving states to "provide necessary facilities for the return of victims" has been proposed by one state, ironically China. China has recently reportedly brought in penalties of one year's imprisonment for those leaving the country illegally.