Uncovering Labour Trafficking in Canada Yvon Dandurand January 2015

Issue Labour trafficking has not received sufficient attention Very few cases of labour trafficking have been identified in Canada, although there have been a few more cases recently Victims of labour trafficking rarely report their experience to the authorities It is important to understand why labour trafficking victims do not seek the protection of the justice system Our knowledge on the prevalence of this crime in Canada is still very limited We need to better understand the challenges associated with the detection, investigation and prosecution of labour trafficking incidents.

The Project GOAL: To understand how to improve the way instances of labour trafficking are detected, investigated and prosecuted in Canada. METHOD: Combined “action research” with a “stakeholder engagement” exercise. RESULTS: A review of current challenges and proposed solutions based on the experiences of key stakeholders in four major Canadian cities, on other informal consultations and on a review of the literature.

Objectives of Four Roundtable Meetings Montreal – Toronto -Calgary - Vancouver A fact finding objective A didactic objective A professional networking objective The main objectives of the meetings were: A fact finding objective: Participants were asked to volunteer information, through discussions and by answering specific questions, about their experience with cases of suspected or confirmed labour trafficking and difficulties encountered, if any, in collaborating with other stakeholders to protect the victims and ensure a successful prosecution of the offenders. A didactic objective: Participants were made familiar with existing laws and their relevance to labour trafficking, with some of the issues involved in detecting and investigating instances of alleged or suspected labour trafficking, and some of the evidentiary requirements for a successful prosecution. A professional networking objective: The meetings facilitated new linkages, at the working level, among participants and help them develop a common understanding of the labour trafficking offences, under both IRPA and the Criminal Code, and explore how they may cooperate more closely with each other in the identification, investigation and prosecution of labour trafficking cases.

Questions addressed during meetings Existing cases: Have there been cases (or suspected cases) of labour trafficking in this region? What did these cases involve? How were they detected? Were they investigated – by whom? Did the investigation confirm that labour trafficking was involved? Challenges encountered: What challenges have participants already identified with respect to the detection, investigation and prosecution of labour trafficking cases? Improving reporting by victims: Can something be done to assist victims and persuade them somehow to come forward and seek the protection of the justice system? Role of labour inspectors and other regulatory agencies: What role, if any, did participants see regulatory agencies play in the detection of cases of labour trafficking? Are these regulatory agencies currently contributing to the detection of labour trafficking incidents? If yes, how do they so? If not, why not? Is it worth further exploring this potential role? What would be required to further develop this role? Improved Interagency Cooperation: How can we improve inter-agency cooperation in the detection, investigation and prosecution of labour trafficking cases? What are some of the best practices in that regard? Each one of the roundtable meetings included a presentation on the current laws concerning labour trafficking in Canada and some of the issues that had been identified thus far in the detection, investigation and prosecution of labour trafficking cases. In one case, Vancouver, other presentations were made about the situation the domestic workers and the prosecution of labour trafficking cases under the Immigration and Refugees Protection Act (IRPA). Meeting discussions were structured around the following four groups of questions:

The Findings Improved understanding of labour trafficking Improved prevention Improved detection and victim identification Improved investigations Improved prosecutions The findings were consistent from one meeting to the other and they also confirmed what has been uncovered in other recent research in Canada and abroad. The report contains a summary of the discussions that took place in each of the roundtable meetings. The findings will be presented here under the following five themes: Improved understanding of labour trafficking Improved prevention Improved detection and victim identification Improved investigations Improved prosecutions

Improved understanding

Understanding of the law There is still some confusion about the definitions of labour trafficking in IRPA and in the Criminal Code Mistaken emphasis of some agencies on trying to define what level of exploitation amounts to labour trafficking. Training on how to interpret the law still required The new FPT Working Group Handbook for Criminal Justice Practitioners on Human Trafficking will be helpful in that regard

Understanding labour trafficking as a process labour trafficking, forced labour and other forms of labour exploitation are all part of a continuum of exploitation and coercion, with clear cut labour cases at one end of that continuum and much more subtle forms of exploitation and coercion at the other end. labour trafficking primarily takes place in the context of the exploitation of migrant labour. It is crucial to better understand these patterns and their implications for regulators, investigators and prosecutors.

Understanding the vulnerability of migrant workers and undocumented workers Labour trafficking primarily takes place in the context of exploitation of migrant labour. Victims of forced labour or labour trafficking often do not see themselves as victims, but rather as workers in a difficult situation. Two main groups of immigrants at risk of being trafficked for the purpose of labour exploitation: undocumented migrant workers; Migrant workers who come to Canada legally under a TFW program. Both groups are very vulnerable to labour exploitation (isolation, cultural factors, fear of deportation, large debt contracted to come to Canada) Domestic workers and farm workers are particularly vulnerable due to the nature of their work, their working conditions, and their isolation.

Structural factors increase the vulnerability of migrant workers The role of intermediaries (e.g. recruitment agencies, brokers, etc.) and the lack of effective monitoring of their activities. Immigration policies (no path to regularization for undocumented workers) The structure of existing FTW Program E.g. Work permits attached to one employer instead of sector-wide permits

Understanding patterns of victim exploitation Forced labour is better understood as “a process and not as a static relationship between workers and employers”. Recent amendments to the Criminal Code have helped define what is meant by exploitation (section 279.04). It is also important to recognize that, although the law makes a distinction between labour trafficking and sexual trafficking, the reality of many victims is that they are subjected to both forms of exploitation. Some people complain that they are unfamiliar with what distinguishes violations of labour standards from labour trafficking. Exploitation however can be defined on a continuum and that it tends to evolve over time. It is the coercion and the deception which accounts for the difference between labour exploitation and labour trafficking. Otherwise, it would simply be a matter of what the workers are prepared to accept. It is also important to recognize that, although the law makes a distinction between trafficking for sexual exploitation and trafficking for labour exploitation, the reality of many victims is that they are subjected to both forms of exploitation. Participants in the roundtable meetings sometimes mentioned that they were unfamiliar with what distinguishes violations of labour standards from labour trafficking. However, they like others recognized that exploitation can be defined on a continuum and that it tends to evolve over time. It is a continuum and, in any event, it is the coercion and the deception which accounts for the difference between labour exploitation and labour trafficking. Otherwise, it would simply be a matter of what the workers are prepared to accept. What matters the most from the point of view of improving law enforcement is an ability to recognize the signs of coercion, physical and psychological, and deception.

Understanding patterns of control and coercion The methods of coercion and control used by labour traffickers tend to be poorly understood by law enforcement or criminal justice officials. It is important to understand the relationship between offenders and victims in order to improve current prevention and enforcement strategies. It is important to understand histories and relationships between offenders and victims and the situations that enable these relationships to be manipulated for criminal purposes. Non-physical methods of control over the victims are used depending on the victim’s susceptibility and context. Psychological coercion is subtle, effective, and difficult to prove The most important point made by stakeholders is perhaps that the methods of coercion and control used by labour traffickers tend to be poorly understood by law enforcement or criminal justice officials. Assumptions are sometimes made about the motivation and behaviour of victims which simply reflect a poor understanding of the methods of control and exploitation used by their abusers and the ways desperate victims have of coping as best as they can with the precarious and often dangerous situation they find themselves in.

IMPROVED PREVENTION

IMPROVED PREVENTION Labour trafficking is best addressed through preventative measures that tackle victimization before it occurs . Methods suggested: Improving the monitoring of the TFW Program; Improving employment standards, enhancing worker protection laws, and enhancing labour standards enforcement; Ensuring that intermediaries (agents, brokers) are effectively regulated and monitored; Providing information to employers; Providing information to workers.

Improved detection

Improved detection: Mitigating the risks associated with reporting By reporting their victimization to the police, victims of labour trafficking may be exposing themselves to a host of other risks, including retaliation by the offenders or their accomplices, deportation, penalties and even persecution in their own country upon their return. These other risks can be mitigated: Protective measures Facilitated access to TRP Regularization of immigration status Predictable and fair pathways to permanent resident status ON THE TRPs: According to Canada’s National Action Plan to Combat Human Trafficking, victims of trafficking are not required to testify against their trafficker to gain temporary or permanent resident status. However, the perception of the stakeholders consulted during the present project is quite different. The situation depicted by many of them is one in which the issuance of a TRP is in effect conditional on the victims accepting to cooperate with the authorities in relation to an investigation or a prosecution. The process of applying for a TRP was described as slow, inefficient, unpredictable and capricious. A determination of whether an applicant is indeed a victim of labour trafficking is a complicated, slow and uncertain one. It apparently does nothing to reassure labour trafficking victims and convince them to report their victimization to the authorities. The need to create some predictable and fair pathways to permanent resident status for labour trafficking victims has been identified as a priority for action. The fear of deportation and all its consequences is one of the greatest obstacles to the identification and protection of these victims.

Improved detection: Increased victim support and access to redress The success of a labour trafficking investigation and prosecution depends on the collaboration of victims. Victims with no viable alternatives to their situation are unlikely to report the crime. If the crime is being investigated, the investigation and prosecution process is often a long one and victims, typically irregular migrants or temporary foreign workers will have most likely lost the means to support themselves and will be totally dependent on support and assistance. Victims of labour trafficking have very few effective remedies available to them – for example, for regaining lost wages or obtaining compensation for injury. There are few incentives for them to report their victimization. ON THE TRPs: According to Canada’s National Action Plan to Combat Human Trafficking, victims of trafficking are not required to testify against their trafficker to gain temporary or permanent resident status. However, the perception of the stakeholders consulted during the present project is quite different. The situation depicted by many of them is one in which the issuance of a TRP is in effect conditional on the victims accepting to cooperate with the authorities in relation to an investigation or a prosecution. The process of applying for a TRP was described as slow, inefficient, unpredictable and capricious. A determination of whether an applicant is indeed a victim of labour trafficking is a complicated, slow and uncertain one. It apparently does nothing to reassure labour trafficking victims and convince them to report their victimization to the authorities. The need to create some predictable and fair pathways to permanent resident status for labour trafficking victims has been identified as a priority for action. The fear of deportation and all its consequences is one of the greatest obstacles to the identification and protection of these victims.

Improved detection: Improvements to the TFW Program It was also suggested that employers’ compliance with program conditions and standards should be more diligently monitored and enforced. Penalties and other consequences should be imposed on non- compliant employers and agencies.

Improved investigations

Investigations More proactive investigations Greater priority to be given to labour trafficking investigations Greater interagency cooperation required Collaboration with regulatory agencies Little collaboration so far General willingness to explore the possibility There will be some limits to the mode and scope of information exchanges between regulatory and law enforcement agencies Training will be required Formal protocols and information sharing agreements will be necessary Collaboration with managers of TFW Program will be required

Improved prosecutions Little experience to date Specialization of prosecutors is important Corroborating evidence is often difficult to produce Prosecution must work closely with victim assistance organizations

Conclusions The identification of victims of labour trafficking will likely continue to be problematic The consequences for victims of reporting their victimization are potentially huge and negative effects of the consequences must be mitigated It is important to understand the many ways in which migrant workers become vulnerable to labour trafficking – it is important to ensure that immigration policies, immigration law enforcement and TFW Program conditions do not further compound that vulnerability Some specific measures can be taken to improve victim reporting rates Proactive investigation is absolutely essential Proactive investigations can be facilitated by interagency collaboration and by linking some regulatory activities with law enforcement investigations

Yvon.Dandurand@ufv.ca International Centre for Criminal Law Reform and Criminal Justice Policy