Labour Trafficking—Even in Canada

In February of 2019, 43 Mexican migrant workers who were survivors of labour trafficking were freed when the Ontario Provincial Police and the Canada Border Services Agency conducted a raid in Barrie and Wasaga Beach. A recruiter had promised them a lot of money, legal immigration documents and good living and working conditions in Canada. The migrants were required to pay 25,000 - 60,000 pesos (about $2800 Canadian dollars) plus their airline tickets. They were also charged $400 per month for rent, to live in a house with 28 other people in terrible living conditions. On top of that, they had to pay $17 per day to have their names added to a waiting list for jobs. After paying various fees they were often left with less than 50 dollars a month.

These women and men were fearful to leave their job locations in Collingwood, Innisfil, Oro-Medonte and Cornwall in Ontario because their employer and landlord controlled everything and threatened to call Canadian law enforcement officers to have them deported. Later, 14 of the workers escaped or received support through the FCJ Refugee Centre and the Legal Assistance of Windsor. These workers were granted Temporary Resident Permits for Victims of Human Trafficking, Open Work Permits, and Interim Federal Health coverage. Due to the abusive situation, six people left their residences before the police raid in February. As a result, these victims were considered ineligible to receive Temporary Residence Permits (TRPs) and remain in Canada in limbo. Since the other workers agreed to cooperate with the ongoing criminal investigation, they were granted subsequent one-year TRPs. To stabilize their situation, they are applying for permanent status on humanitarian and compassionate grounds. Four people have been arrested and have been charged with running a criminal organization for human trafficking. The case has yet to go to trial, and restitution to the survivors remains unclear.

Growing Public Awareness

The problem of human trafficking in Canada, especially related to migrant workers, is gradually making its way into public consciousness. There have been increasingly strident calls by workers and NGOs for reform of the laws to provide migrant workers with proper access to adequate protection and permanent immigration status. Sayed Hussan, the executive director of the Migrant Workers Alliance for Change argued that Canada's immigration policy is the root cause of the crisis with migrant workers. The Canadian government typically responds by expressing its condolences to the victims and their families but leaves further investigations to the provinces.

In a further response to public concerns about the frequent and systemic exploitation of migrant workers, the federal government stated that “the COVID-19 pandemic has highlighted the need for further action by the Government and its partners to improve the protection of temporary foreign workers”. The Minister of Employment, Workforce Development and Disability Inclusion, Carla Qualtrough, and the former Minister of Immigration, Refugees and Citizenship, Marco Mendicino, outlined 14 regulatory amendments to the Immigration and Refugee Protection Regulations (Temporary Foreign Workers), with the objectives of improving protections for temporary foreign workers in Canada.

These regulatory changes, however, stop short of addressing the fundamental issues surrounding labour trafficking, which are:

• the better synchronization of provincial and federal laws and policies.
• adjusting the labour market impact assessment systems and work-permit regimes.
• the creation of pathways to permanent residence, and improved access to social security.
• improved regulation of recruiters and recruitment agencies.

Before laying out the solutions for addressing the growing problem of human trafficking, we need to better understand the current legal and policy setting in Canada.

The Canadian Legal and Policy Landscape

In keeping with its international obligations, Canada enacted Bill C-423, which prohibits modern slavery. Despite this, no existing legislation directly prohibits forced labour. Canada therefore relies on its human trafficking and labour laws to address labour exploitation. The legal and regulatory framework that governs and protects migrant workers in Canada includes the Criminal Code; the Immigration & Refugee Protection Act (IRPA); the Temporary Foreign Workers Program (TFWP); and various other labour laws. Successful prosecution of traffickers and employers has proven to be highly problematic due to legislative gaps and jurisdictional issues. Additionally, while key laws and initiatives may be in place, the enforcement of these laws, both by law enforcement and labour inspectorates, is also a significant cause of the inefficiency in the criminal justice system. In 2022, the US Department of State Trafficking in Persons Report reported that “Canada’s government’s efforts to identify victims and provide protections to all victims—particularly forced labor victims—and to investigate and to prosecute forced labor crimes, remained inadequate”.

The Criminal Code. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime does not provide States with a definition for labour trafficking. In Canada, labour trafficking is defined as “a form of human trafficking that can happen in many different industries and it involves recruiting, moving, or holding victims to coerce them into doing any kind of work.”

Four offences in the Criminal Code specifically address human trafficking.

1. Trafficking in Persons (section 279.01) carries a maximum penalty of life imprisonment and a mandatory minimum penalty of 5 years where the offence involves kidnapping, aggravated assault, aggravated sexual assault or death, and a maximum penalty of 14 years and a mandatory minimum penalty of 4 years in all other cases.
2. Trafficking of a person under the age of eighteen years (section 279.011) carries a maximum penalty of life imprisonment and a mandatory minimum penalty of 6 years where the offence involves kidnapping, aggravated assault, aggravated sexual assault or death, and a maximum penalty of 14 years and a mandatory minimum penalty of 5 years in all other cases.
3. Receiving a Financial or Other Material Benefit to commit or facilitate trafficking in an adult (subsection 279.02(1)) carries a maximum penalty of 10 years imprisonment; for a child (subsection 279.02(2)) this offence carries a maximum penalty of 14 years imprisonment and a mandatory minimum penalty of 2 years.
4. Withholding or Destroying a Person's Identity Documents (for example, a passport) to commit or facilitate trafficking of an adult (subsection 279.03(1)) carries a maximum penalty of 5 years imprisonment; for a child (subsection 279.03(2)) this offence carries a maximum penalty of 10 years imprisonment and a mandatory minimum penalty of 1 year.

For trafficking offences, the Criminal Code states that a person exploits another person if they:

1. cause someone to provide, or offer to provide, labour or service by engaging in conduct that, in all the circumstances, 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 offer to provide, the labour or service.
2. cause a person, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed - (section 279.04).

Consent of a victim is no defence to a human trafficking charge. No one can legally consent to being exploited in Canada.

The Legislative Dilemma. The Criminal Code provides a specific definition of “exploitation” for human trafficking offences in section 279.04. For human trafficking crimes, “exploitation” means:

“Causing someone to provide, or offer to provide, labour or a service by engaging in conduct that could reasonably be expected to cause that person to believe that their safety, or the safety of a person they know, would be threatened if they failed to do so.”

When looking at the issue of exploitation, the Court can also consider whether the accused used or threatened to use force or another form of coercion, employed deception (lying or tricking), or abused a position of trust, power, or authority. Proving exploitation requires proof that shows objectively that a reasonable person would be afraid—if they were afraid and the fear was considered by the Court as reasonable, it represents their strongest evidence.^..

The Criminal Code’s requirement that the “fear for safety” be present is problematic. When considered, this factor makes the offence of human trafficking difficult to prove. It therefore provides a plausible reason as to why human trafficking charges are often dropped or why traffickers are often charged under related crimes, such as forcible confinement, extortion, etc. Legislative reform is needed, to remove or widen the narrow scope of the “fear for safety” element for a case to qualify as one of labour trafficking.

The Immigration and Refugee Protection Act. Human trafficking is a federal immigration offence in the Immigration and Refugee Protection Act (IRPA). Section 118 of IRPA states that “it is against the law to recruit or bring someone to Canada by taking them against their will, through the use of fraud, deception, threats or force” It is also against the law to keep someone in Canada against their will or control their movements by using those methods. It is an indictable offence liable to a fine of up to 1 million dollars, life imprisonment or both”.

For a case to be considered one of trafficking the IRPA requires that a victim must be transported in some capacity by the perpetrators. The restrictive interpretations by the Courts may often result in acquittals or the cases being considered as simply labour law violations or exploitation which does not involve labour trafficking, or as issues of illegal immigration despite the presence of the elements of coercion and exploitation.

Amendments to the existing trafficking legislation to take into consideration the specific nuances of labour trafficking and reducing the emphasis on transportation of the victim will make it easier for law enforcement to lay charges for labour trafficking, and makes it easier for court prosecutors and judges to determine that labour trafficking has occurred in a wider range of cases.

Judicial Responses. The identification of cases and evidence gathering as well as the lack of awareness on the part of criminal justice authorities and labour inspectorates have emerged as a problem, and consequently successful prosecution of traffickers has proven to be highly problematic. In addition, several shortcomings exist in the judicial system due to:

1. the lack of procedural uniformity e.g collection and use of digital evidence;
2. the legal contentions surrounding inter-provincial movement and whether a court in one province has jurisdiction to try a case where a trafficking offence has been committed “exclusively” within another province;
3. the general lack of resources;
4. delays in processing cases before courts;
5. insufficient training of criminal justice professionals regarding the appropriate management of victims;
6. the extended length of trials and the failure to secure convictions for labour trafficking.

If traffickers are to be deterred and the public’s trust in the justice system maintained, the constraints in the Court system will have to be addressed at the both the federal and provincial levels.

Existing Gaps in the Immigration Framework

The various elements of Canada’s immigration system also reveal some gaps which allow the human traffickers to accomplish their objectives.

The Temporary Foreign Workers Program. The policy framework for temporary migration is heavily shaped by the Temporary Foreign Workers Program, which itself is divided into high-skilled and low-skilled categories. The various programs include the Live-in Caregiver Program, the Seasonal Agricultural Worker Program, the Pilot Project for Occupations Requiring Lower Levels of Formal Training, and the Agricultural Stream of this Pilot Project.

Workers under four of the lower-skilled labour migration programs are on “employer-tied” work permits—they can work only for the specified employer, doing the specified job, in the location specified on the permit, and for the period authorized on the permit. Often when Labour Market Impact Assessments and work permits are suspended or revoked in response to an employer’s violation of the regulations, workers will suddenly find themselves without legal status in Canada, through no fault of their own. In recent times several victims have benefited from the Canadian government’s Temporary Resident Permit program which enables certain individuals without legal status to stay in Canada for 180 days.

In such circumstances, the Temporary Resident Permit (TRP) is the only available option available for the protection of trafficked workers in Canada. A person without legal immigration status in Canada may apply to Immigration, Refugees and Citizenship Canada (IRCC) for a TRP. This is not without challenges. It is often difficult for foreign victims of trafficking to come forward because of language barriers, fear of the traffickers, barriers to accessing information and legal services, and mistrust of law enforcement.

It is in the low-skilled category that labour exploitation appears to occur most often. Temporary migration programs play a significant role in Canada’s economic growth, yet these workers remain vulnerable and insufficiently protected by current immigration laws and policies. This problem needs urgent attention. Targeted prevention efforts and services for migrant workers are the keys to protecting their rights and eradicating the phenomenon from the outset.

Recruitment Agencies and Agents. Migrant workers are often confused about their immigration status, entitlements, and their rights—making it easier for unscrupulous recruiters and employers to take advantage. Labour trafficking frequently occurs in legal employment sectors, and abuse by recruiters starts in the migrant worker's country of origin. Migrant workers are often extorted, paying thousands of dollars in recruitment fees. How persons are recruited and by whom warrants the inclusion of recruitment agencies and agents in the anti-human trafficking and labour legislation. The regulation of private recruiters is largely undertaken through a division of responsibilities between the federal and provincial governments. Recruitment agency licensing or registration regulations are generally determined by provinces, while immigration and labour regulations about migrants, including temporary migrant workers, are primarily issued at the federal level.

While some provinces make legal provisions to protect persons being recruited through various bilateral agreements, the federal government has announced measures aimed at ensuring that employers do not exploit the workers. There are still gaps to be filled in this area, as noted by the Canadian Council for Refugees in their urging of the federal government to take responsibility for curtailing predatory recruitment practices.

The Labour Market. The labour ministries at the provincial and federal levels in Canada are tasked with monitoring labour conditions and ensuring compliance with existing labour standards and laws. They therefore can significantly contribute to national efforts to combat labour trafficking. While they may often come across trafficking situations before law enforcement, addressing trafficking for labour exploitation is not necessarily a core part of their mandate; nor are they sufficiently trained to identify such situations. The fact that the detection of trafficking is only a sidebar of routine activities means that such a narrow focus allows for labour trafficking to often go undetected.

Labour market regulations serve to ensure decent working conditions, including by protecting workers from abusive and fraudulent recruitment practices. Relatedly, Canada has taken some steps towards the regulation of recruitment agencies and agents, although much more needs to be done. In 2008, Manitoba’s Worker Recruitment and Protection Act (WRAPA) was passed, and this marked substantial progress towards licensing systems for agencies recruiting foreign workers.

Under the WRAPA, recruiters are prohibited from charging fees to foreign workers and employers are not allowed to recover recruitment fees from workers. New and updated licensing regulations have been adopted in several Canadian provinces, including Nova Scotia in 2011, Alberta in 2012, Saskatchewan in 2013, and New Brunswick in 2014. All provinces should be urged to secure bilateral agreements and government should have in place a federal-level agency that would provide over-arching oversight of the agreements.

Policy Recommendations

In Canada, a multidimensional approach to combatting labour trafficking is needed which requires federal and provincial levels of collaboration. The range of policy actions required includes legal reform, adjustments to the work permit regimes, creation of pathways to permanent residence, access to justice, social security access, improved regulation of recruiters and recruitment agencies, and the recognition of migrant workers’ fundamental human rights.

While the following list of recommendations is not exhaustive, they can go a long way towards improving the current state of affairs.

• Canada should promote and protect human rights, giving priority to victim identification, protection, and support in a way that avoids secondary victimization.

• Legislative reform should be undertaken to include a clear legal definition of labour trafficking.

• Clear information should be provided to migrant workers early in the immigration process, including providing them with tips on how to protect themselves from deceptive recruiters, and where to seek assistance when they need it.

• Removing the limitation that a foreign worker is tied to a single employer could be a progressive step, as would be giving workers faster access to permanent residency. Such changes would make it easier for victims to leave exploitative employers.

• At the federal and provincial levels, Canada should address the resource capacity issues, including the shortcomings in the response of the justice system to the exploitation of migrant workers. In addition, the inadequate coordination between the federal and provincial levels should be addressed.

• Canada should enhance the awareness-raising and capacity-building activities of labour inspectorates, police, immigration, prosecutors, and judges to detect and respond to indications of abuse, exploitation, and trafficking of migrants.

• Canada should establish a specialised unit within the provincial and federal ministries of labour that focus exclusively on labour trafficking.

• Labour inspecting authorities should use targeted approaches and focus on the sectors that are especially prone to exploitative practices—agriculture, manufacturing, and tourism—without losing sight of their central mandate.

Conclusion

Labour trafficking is an offence against a person and the State. It is also a crime that is rooted in the socioeconomic context of globalisation, deregulation and forced migration with the situation further exacerbated by the effects of the COVID-19 pandemic and climate change. Current immigration and criminal laws often exclude victims of labour trafficking from governmental protection and assistance, allowing traffickers to have greater control over their victims due to fears of incarceration or deportation. Documentation of the labour trafficking phenomenon in Canada is still rather unsatisfactory. This is a consequence of not only a lack of knowledge about the issue but of the unwillingness of both victims and the public to report trafficking cases, due to the low levels of trust in the institutions, authorities, and service providers.

When legislation is passed, it is often assumed to reflect a government’s response to solving a particular problem. In the case of labour trafficking in Canada, it might be inferred that the existence of legislation confirms the reality of labour trafficking as merely a discrete problem. However, viewing the problem through a policymaking lens offers up a more nuanced picture. The limited knowledge of human trafficking during the earlier years of policy development provided the context against which labour trafficking was problematised. Current anti-trafficking policy responses have therefore been built upon previous partial solutions, that ran ahead of research and that is tilted in favour of sex trafficking.

As Fay Farraday sums it up, “Migrant workers’ insecurity is a product of choices that federal and provincial governments have made in developing the legal and policy systems that govern these workers’ labour migration journey”. The recommendations above represent significant steps Canada can and should take towards safeguarding the lives of the migrant workers it relies upon for its economic growth and sustainability.

About the Author

Olivia Smith is the McConnell Visiting Scholar for 2022-2023. She was the 2021 O’Brien Fellow in Residence and Affiliate with the Oppenheimer Chair in Public International Law held by Professor François Crépeau. She is also a consultant on labour migration and human trafficking and the Executive Director of the Caribbean Anti Human Trafficking Foundation, a member of the Working Group of Experts on Human Trafficking, Recruitment Agencies, Agents for The Commonwealth Parliamentary Association, London, UK, and a Gender Rights Specialized Team member, Amnesty International (Canada).