Invisible Chains (21 page)

One tool that could help to dismantle human trafficking enterprises is existing legislation that authorizes the seizure and forfeiture of the proceeds of crime and unlawful activity. If pursued by prosecutors, convicted human traffickers would not only have to hand over profits earned from exploiting their victims, but also vehicles, residences, and other property used to commit the crime or purchased with money from the crime. Only in two of Canada's five human trafficking convictions to date was the seizure of proceeds and assets of the crime ordered. Such measures are critical in dismantling the infrastructure and financial incentive of traffickers, and could provide needed funds for victim support services.

Even if the police recommend human trafficking charges be laid, Canada does not have any Crown prosecutors dedicated to human trafficking cases, nor have prosecutors or judges received systematic training in the new area of human trafficking offences. The federal Department of Justice has distributed a two-page information circular for prosecutors and police that briefly summarizes the new offences. Much more is needed. Training and, in some instances, expert evidence may be required for those involved to fully understand the control exerted by traffickers and the behaviour of victims.

There appears to be little awareness in legal quarters of the horrendous nature of human trafficking and of the difficulties inherent in investigating and prosecuting the offence to secure convictions.

Treating victims with respect, not intimidation

Traffickers of foreign victims frequently employ the fear of prosecution and imprisonment as a means of controlling them.
Unfortunately, some procedures confirm the threats of the traffickers, making the victims feel as though they've been victimized twice—first by the traffickers and next by the Canadian legal system.

NGO representatives like Loly Rico, co-director of the FCJ Refugee Centre, argue that most law enforcement officers lack the understanding and sensitivity to encourage victims to feel comfortable telling their stories. In many cases, the victims themselves are criminalized for being found in a bawdy house, making the situation even worse. Rico says that potential trafficking victims should be entitled to have a lawyer or NGO representative accompany them whenever they meet with police and in all subsequent interviews with public officials.

Dr. Scharie Tavcer, a professor in the Justice Studies Department at Mount Royal University and the chair of the Calgary Network on Prostitution, agrees that police interviewing tactics with suspected trafficked or prostituted persons are often inadequate. “If you were a betting individual, you could say nine out of ten times that context will not permit compliance from these victims,” says Dr. Tavcer. “You need to have different sorts of agencies and individuals there to attempt relationship-building, and it's not going to happen the night of the bust, and it's certainly not going to happen when they're staying in a detention cell at some type of a correctional facility.”

The co-operation of victims with police is often critical in holding their exploiters accountable. However, it can be incredibly traumatic for victims to talk about the extent of their suffering—and terrifying when their traffickers have made threats against them or their loved ones. Victims may take some time before they are willing and able to share information about their exploitation with police, and they will do so only after their needs have been met and trust has been firmly established.

The Toronto Police Service, Special Victims Unit, takes a unique approach to policing by viewing prostituted women as victims of crime, not as criminals. The word on the street is that the SVU will not lay charges against prostituted persons who report experiences
of violence. This has resulted in several suspected foreign trafficked women having made contact.

Foreign victims may expect they will be deported, usually after having spent extensive time in an immigration detention facility or holding cell. However, there is now a better alternative. For victims, the preferred response from Citizenship and Immigration Canada is a Temporary Residence Permit (TRP) that allows them to legally remain in Canada for a fixed period.

A CIC officer can issue a short-term TRP allowing a victim to remain in Canada for up to one hundred and eighty days, with extensions possible. The TRP helps victims “escape the influence of traffickers so that they can make an informed decision” about whether to return home, seek to remain in Canada to recover from physical and/or mental trauma, or, if they are willing and able, assist in the investigation and prosecution of their trafficker. The TRP can also be issued “for any other purpose ... to facilitate the protection of vulnerable foreign nationals who are victims of human trafficking.”

CIC policy guidelines direct officials to consider “an assessment of credibility and whether the individual may have been trafficked,” including whether

•  the recruitment of the individual was fraudulent or coerced and for the purposes (actual or intended) of exploitation;

•  the individual was coerced into employment or other activity;

•  the conditions of employment or any other activity were exploitative;
or

•  the individual's freedom was restricted.

Trafficking victims are not required to pay the usual fee for a TRP, are eligible to receive coverage under the Interim Federal Health Program (IFHP) and emergency counselling services, and may apply for a fee-exempt work permit.

Once a TRP has been issued, the victim may seek to renew or extend it beyond the initial period. In reviewing applications,
immigration officials have been directed not to penalize trafficking victims for being illiterate, unskilled, or lacking support networks to help them integrate into Canadian society. Such liabilities often result from the victims' exploitation or facilitated their isolation.

When deciding whether to issue long-term TRPs, which have been approved for between thirty days and three years in individual cases, the immigration official will consider several additional factors:

•  whether it is reasonably safe and possible for the victims to return to and to re-establish a life in the country of origin or last permanent residence;

•  whether the victims are needed, and willing, to assist authorities in an investigation and/or in criminal proceedings of a trafficking offence;

•  any other reason the officer may judge relevant.

From May 2006 to November 2008, TRP applications and renewal requests for suspected trafficked persons grew significantly—from four in 2006 to nineteen in 2007, almost doubling to thirty-six in 2008. The majority of applicants were successful in their bids to stay in Canada. Unfortunately, higher rejection rates in 2006 and 2007 may have put some cold water on the program. The higher acceptance rate in 2008 is promising for victim advocates. In total, 42 percent of all TRPs issued were for sexual exploitation, 46 percent for forced labour, and the remainder for unspecified (perhaps mixed) forms of exploitation. Forty-six percent were issued in the Ontario Region, 42 percent in the Prairies/Northwest Territories Region, and 12 percent in the Quebec Region.

Beneath these favourable statistics, however, lurk some serious problems. The decision to grant a TRP rests with a single immigration official at the regional office where an application is made. The same official may not consider such applications each time, resulting in inconsistent and incorrect decisions. Additional training for officers,
and assigning complex cases to senior officials, would be a better approach for the immigration department to adopt.

In Alberta, NGOs have expressed concern about CIC's assessment of Thérèse, the long-term sex trafficking vicim whom we encountered in an earlier chapter. Thérèse was fortunate in eventually being granted a TRP based on evidence from the RCMP, but the majority of referrals from the RCMP nationwide did not result in immigration officials issuing such permits for the victims. The statistics are similar for referrals from local police agencies and from border guards. In some cases, applicants were granted other forms of immigration status (i.e., humanitarian and compassionate grounds or refugee status) or could have been ineligible because they held another immigration status. Multiple cases, however, suggest substantive disagreements between immigration authorities and the RCMP: the RCMP believed the individuals were trafficking victims, whereas the immigration officers did not.

In British Columbia, the B.C. Office to Combat Trafficking in Persons (OCTIP) is familiar with one such case. In 2008, a seventeen-year-old arrived at the Vancouver International Airport under suspicious circumstances. The minor was referred to the child protection system and the RCMP determined that this child was a victim of human trafficking. But an immigration officer disagreed, so no TRP was issued.

“The dilemma for me is when you've got evidence right in front of you of a child, and you've got law enforcement saying we totally agree with you based on our own investigation, and then having it denied by CIC,” says Robin Pike, executive director of OCTIP. “There's something very wrong with the system then.”

Similarly, in Ontario, Clara Ho, an immigration lawyer and human trafficking activist, has heard of cases where immigration officials decided to deport individuals after the police had identified them as trafficking victims. Moreover, an internal governmental email from the CIC regional program adviser for the Quebec Region noted that “miscommunication was a problem” between federal agencies.

Fortunately, immigration officials and the RCMP do sometimes co-operate in their efforts on behalf of trafficking victims. In June 2007, the RCMP interviewed a victim in hospital and gave the interview notes to an immigration official, who later met with the victim to confirm her story and provided the TRP, health care eligibility, and information about future immigration options. It's important for immigration officials to remember that police can greatly assist in making the preliminary verification of a trafficking victim, particularly given their knowledge of other aspects of the case and their investigative capacity, which CIC lacks. Re-interviewing an individual whom the police have already identified as a trafficking victim may do more harm than good—a fact that CIC recognizes in its own TRP guidelines.

Other concerns about the implementation of the TRP guidelines for trafficked persons also need to be addressed. Records released under the
Access to Information Act
revealed that at least one immigration officer has taken the position that a foreign trafficked child seeking a TRP is required to provide his or her own interpreter, something that is well beyond a child's ability to secure. The officer ultimately relented and arranged for a translator. Article 3(b) of the
Palermo Protocol
calls for victims to receive information about legal rights in a language that they can understand. Translation services for trafficked persons applying for a TRP clearly should be available.

Are trafficking victims refugees?

When law enforcement officials apprehend trafficked persons, the victims may attempt to claim refugee status, fearing they will be re-trafficked by the criminal groups that brought them to Canada if they return home.

In order to gain status as refugees or “protected persons” under the
Immigration and Refugee Protection Act,
claimants must establish several facts: They must demonstrate that they face persecution and violence in their home country; they must establish that this violence results from their membership in a social group that is “innate and
unchangeable”; and they must convince immigration officials that effective state protection is lacking in their country of origin. As a result of these rules, very few trafficked persons gain refugee status. While refugees in Canada suffered harm or threat of harm in their home countries, trafficked persons in Canada generally suffered harm here. As a result, most foreign trafficking victims cannot benefit from the protection given to those fleeing war or persecution abroad, unless they happen to be from such countries.

In one extremely unsettling decision made before the 2006 TRP system for trafficking victims was in place, the Immigration and Refugee Board accepted a claimant's evidence that she likely would be injured or killed upon returning home but refused to find that she conformed to a particular social group. An IRB adjudicator agreed that “the claimant has been victimized by ruthless members of what seems to be an organized crime [sic] specializing in the trafficking of women from the Third World to Canada, for the sake of sexual exploitation,” but denied her claim for protection because “victims of organized crimes [sic] do not constitute a particular social group.”

What is the federal immigration department's view on the subject? “While some victims of trafficking may be refugees, a refugee claim may not be the best course for all trafficking victims,” according to a senior policy analyst at the CIC headquarters in Ottawa. “Making a refugee claim is not a viable option for people who do not meet the definition of a Convention refugee.” Instead, immigration officials point out the merits of the TRP as a vehicle for trafficked persons to obtain legal status. Unfortunately, this message from the CIC headquarters in Ottawa has not always trickled down to immigration officials in various parts of the country.

Loly Rico of the FCJ Refugee Centre has dealt with six separate cases that she considered to involve foreign victims of human trafficking. Yet when she asked the local immigration official to consider TRPs for these women, often she was told to just apply for refugee status, a process ill-suited to the situation. These cases seem to expose a disconnect between policy at CIC's headquarters and
its interpretation among regional officials who implement the TRP guidelines for trafficked persons.

Giving victims hope to become survivors

Both foreign and domestic victims of human trafficking need the protection and assistance to which Canada committed when it signed the
Palermo Protocol
in 2000. A failure to provide essential care risks re-traumatizing victims, hampering their rehabilitation, and undermining chances of holding their exploiters accountable, while raising the prospect of their being re-trafficked. Although every victim is unique, many exhibit similar needs. These include the following services that should be provided by a combination of NGOs and governmental agencies: