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Human trafficking is a complex problem that is only beginning to be understood in Canada, and immigration lawyers can play a much greater role in responding to it. As cases continue to come forward, the courts are testing recent legal and policy measures designed to protect victims, prosecute traffickers and prevent this serious crime and human rights violation.

Protecting trafficked persons

In May 2006, Citizenship and Immigration Canada (CIC) first introduced measures to protect foreign victims of human trafficking by providing them with temporary residence permits (TRPs), administered with guidelines specifically addressed to the problem, along with access to interim federal healthcare. Subsequent improvements in 2007 increased the initial period for the TRPs to 180 days and the ability to obtain a work permit. Until recently, few details on the actual implementation of these measures have been made public.

Between May 2006 and May 2008, records released by CIC under the Access to Information Act revealed that immigration officials were notified of at least 31 foreign nationals who were potential human trafficking victims. Four of them were minors. Only a small handful of TRP applications were made with the assistance of legal counsel.

Romania, the Philippines, Moldova and China were the top four source countries for these human trafficking claimants. Of these individuals, 12 were granted TRPs, seven did not obtain TRPs, one victim’s TRP was cancelled and one victim did not appear for the interview. The 10 remaining individuals had their cases pending or obtained another form of immigration status.

These cases likely represent only a fraction of the actual number of human trafficking cases. Due to threats, violence or coercion, most trafficking victims are unable to come forward. In addition, these statistics do not include a growing number of domestic trafficking cases involving Canadian women and girls.

While it is helpful that immigration relief for trafficked persons was introduced as a ministerial policy measure to provide necessary flexibility, such measures should be legislated in the Immigration and Refugee Protection Act (IRPA) and related regulations once “lessons learned” have been incorporated. This would help assuage non-governmental organizations (NGOs) of their concerns on the lack of permanency to the current TRP system.

Trafficked persons also require a range of support services, including healthcare and counselling, housing, income or employment support, legal aid and translation services. Most of these social services fall within provincial responsibility. While some provincial governments like Alberta and B.C. have established lead agencies for trafficked persons to access such services, others like Ontario and Quebec have yet to take such action.

Prosecuting traffickers

Trafficking in persons only became a Criminal Code offence in November 2005. To date, convictions under this offence have involved victims who were Canadian women and girls subjected to sexual exploitation.

The lack of human trafficking prosecutions related to foreign victims is a startling gap in Canada’s efforts to combat this problem, particularly given that law enforcement agencies continue to bring forward such victims. While victim protection is paramount, only prosecuting their traffickers successfully confronts this problem.

There are signs that crimes involving the sexual exploitation of foreign nationals are being taken more seriously. In R. v. Ng, 2008 BCCA 535, the B.C. Court of Appeal decided  to increase Wai Chi (Michael) Ng’s sentence by one year, to a total of 27 months. While Ng’s acquittal on human trafficking charges under IRPA was upheld on evidentiary grounds, his sentence for prostitution-related convictions under the Code was found to be inadequate.

“Deterrence is a significant factor in sentencing for these offences. Because of the moral turpitude involved, denunciation is an equally significant factor. The sentences imposed for the prostitution offences do not adequately speak to these factors and are unfit,” wrote Justice Richard Low.

Preventing human trafficking

With evidence that Romania, the Philippines, Moldova and China have supplied the vast majority of human trafficking claimants discovered in Canada in recent years, immigration and border authorities should  enhance their efforts to proactively prevent the movement of suspected victims from these countries to Canada. Migration integrity officers should be more active in these jurisdictions to identify fraudulent documents, bogus offers of employment and the other indicators of suspected trafficking cases.

Canada needs to raise greater awareness of the reality of human trafficking. A recent positive development came on Jan. 15 when Minister of Public Safety Peter Van Loan announced that the Royal Canadian Mounted Police and the Canadian Crime Stoppers Association would be cooperating with his department to increase public awareness and report suspected cases of human trafficking.

Canada has been very late  in combating human trafficking and still lacks a national strategy to do so, despite the federal government’s promise of one for years. By comparison, the U.S. first enacted legislative measures to address this problem in 2000 and recently updated them in the William Wilberforce Trafficking Victims Protection Reauthorization Act.

Immigration lawyers can play a greater role in confronting this serious problem by assisting with law reform efforts, offering legal information and advice on immigration relief measures to local organizations that may come into contact with victims and making sure the issue remains high on the public policy agenda.

We all need to help keep Canada’s promise to newcomers as a just, democratic and vibrant society.

Benjamin Perrin is an assistant professor at the University of British Columbia, Faculty of Law and served as senior policy advisor to the Minister of Citizenship and Immigration in 2006.