Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Introduced in the House of Commons on 17 June 2009, Bill C-45 proposes amendments to the Immigration and Refugee Protection Act to allow immigration officers the discretion to refuse to authorize foreign nationals to work in Canada if they are judged to be at risk of exploitation. Earlier versions of Bill C-45 were previously introduced on two occasions. The bill was first introduced in May 2007 in the 1st Session, 39th Parliament, as Bill C-57, which died on the Order Paper when Parliament was prorogued in September 2007. It was next introduced as Bill C-17 in the 2nd Session, 39th Parliament, in the fall of 2007 and was referred to the House of Commons Standing Committee on Citizenship and Immigration. The Committee considered the bill on 30 January 2008 but did not report it back to the House before the end of the session. The current Bill C-45 contains some minor changes but is in substance the same as its predecessors.
In Canada, a number of laws exist to combat and prevent trafficking in persons. With respect to criminal law, Bill C-49(1) came into force on 25 November 2005, adding sections 279.01 to 279.04 to the Criminal Code to specifically prohibit trafficking in persons in Canada by means of new provisions that outline three prohibitions.
The first of these is a global prohibition on trafficking in persons, defined as the recruitment, transport, transfer, receipt, holding, concealment or harbouring of a person, or the exercise of control, direction or influence over the movements of a person, for the purpose of exploitation.(2) Key to this definition is the fact that the criminal offence of trafficking in persons does not require movement across an international border to be triggered; rather, any action in which a person is moved or concealed and is forced to provide or offer to provide labour, a service, or an organ or tissue is prohibited.
Section 279.02 prohibits a person from benefiting economically from trafficking and carries a maximum penalty of 10 years’ imprisonment. For example, this offence covers those who harbour a victim of trafficking for a fee. Finally, section 279.03 outlaws the withholding or destroying of identity, immigration, or travel documents to facilitate trafficking in persons, and carries a maximum penalty of 5 years’ imprisonment.
Further, the amendments to the Criminal Code ensure that trafficking may form the basis of a warrant to intercept private communications and to take bodily samples for DNA analysis, and permit inclusion of the offender in the sex offender registry. Passage of Bill C-49 also expanded the ability of victims who are subjected to bodily or psychological harm to seek restitution.
A number of generic provisions in the Criminal Code are also used to combat trafficking in persons by targeting specific forms of exploitation and abuse that are inherent in trafficking. These include offences such as fraudulent documentation; prostitution-related offences; causing physical harm; abduction and confinement; intimidation; conspiracy; and organized crime.
Outside the Criminal Code, the Immigration and Refugee Protection Act (IRPA) targets cross-border trafficking in persons. Section 118 of the IRPA defines the offence of trafficking: to knowingly organize one or more persons to come into Canada by means of abduction, fraud, deception, or the use or threat of force or coercion. This offence includes the recruitment, transportation, receipt, and harbouring of such persons, and the maximum sentence is life imprisonment. Section 117 of the IRPA defines the offence of smuggling: to knowingly organize, induce, or assist one or more persons to enter Canada without a valid travel document. The maximum sentence for smuggling fewer than 10 people is 14 years’ imprisonment, while that for smuggling 10 or more people is life imprisonment. Sections 122 and 123 outline the additional offence of using travel documents to contravene the IRPA, as well as the buying or selling of such travel documents. The maximum sentence for these offences is 14 years’ imprisonment.
With respect to the policy framework, in May 2006 the Department of Citizenship and Immigration announced a new policy to provide temporary resident permits specifically for trafficked persons. This policy was updated in June 2007.(3) Working within the existing legislative framework, immigration officers now have the ability to issue temporary resident permits to trafficked persons for up to 180 days. Recipients of such permits are exempt from the processing fee usually charged and are eligible for essential medical care, social counselling assistance and other health service benefits under the Interim Federal Health Program. Recipients may also apply for a work permit at the same time, and are exempt from the processing fee usually charged.
The purpose of these permits is to provide trafficked persons with a reflection period to consider their options (such as returning home, or assisting in the investigation of or criminal proceedings against the traffickers); to allow them to recover from physical or mental trauma; to allow them to escape the influence of traffickers; to facilitate their participation in an investigation or prosecution; and to facilitate any other purpose the officer believes to be relevant. There is no obligation on the trafficked person to cooperate with an investigation in exchange for a temporary resident permit.
A trafficked person may also be granted a permit for a longer period or a subsequent temporary resident permit once an immigration officer examines the relevant factors, such as whether it is reasonably safe and possible for the individual to return and re-establish a life in his or her country of origin or last permanent residence, and whether the individual is needed and willing to assist the authorities in an investigation or a prosecution. After a certain period, it may be possible for the trafficked person to obtain permanent resident status.
A significant component of the Canadian approach to trafficking in persons is the federal Interdepartmental Working Group on Trafficking in Persons. This Working Group is co-chaired by the departments of Justice and Foreign Affairs and includes many other federal departments and agencies. Its mission is to coordinate federal efforts to address trafficking in persons and to develop a federal strategy, in keeping with Canada’s international commitments. The Working Group reviews existing laws, policies and programs that may have an impact on trafficking with a view to identifying best practices and areas for improvement.(4)
In addition, in September 2005 the RCMP established a Human Trafficking National Coordination Centre, which is staffed by two RCMP officers and one analyst and assisted by six regional RCMP coordinators dealing with human trafficking. Housed in the Immigration and Passport Branch, the Centre’s role is to provide assistance to field investigators and to develop education and awareness campaigns.
Finally, two parliamentary committees have examined the issue of trafficking in persons. In December 2006, the Subcommittee on Solicitation Laws of the House of Commons Standing Committee on Justice and Human Rights released its report, entitled The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws.(5) In its broad study of Canada’s laws on prostitution, this report emphasized the fact that trafficking in persons must be effectively prosecuted and that law enforcement officials should be provided with adequate resources and training, while victims should be provided with adequate assistance and services.
In February 2007, the House of Commons Standing Committee on the Status of Women released its report, entitled Turning Outrage Into Action to Address Trafficking for the Purpose of Sexual Exploitation in Canada.(6) This report highlighted the “three Ps” approach: protection of victims, prosecution of clients and traffickers, and prevention. The report’s recommendations focused on prevention measures, including the establishment of a strategy to address poverty (with particular emphasis on Aboriginal peoples), removing barriers to immigration, and raising awareness of the risks of being trafficked. The Committee also emphasized the importance of improving the protection of victims by providing them with support services and programs, including safe interim housing and access to counselling and legal advice, and by revising the temporary resident permit guidelines so that victims can apply for a work permit. To coordinate Canada’s efforts, the Committee proposed the creation of a Canadian Counter-Trafficking Office, through which stakeholders can share expertise and best practices to prevent trafficking, protect victims, and successfully prosecute those who exploit victims. The Committee also proposed the establishment of a National Rapporteur mandated to collect and analyze trafficking data and report these annually to Parliament.
Although this was not explicitly stated in Bill C-57, the former Minister of Citizenship and Immigration, the Hon. Diane Finley, made it clear that the bill was introduced to preclude situations in which temporary workers, particularly exotic dancers, may be exploited or become victims of human trafficking.
Currently, foreign exotic dancers may apply for temporary work permits to fill temporary shortages in the Canadian labour market. Historically, to fill this shortage, the applications of foreign exotic dancers were “fast-tracked” without the case-by-case confirmation required of most temporary foreign workers. Foreign exotic dancers with job offers from Canadian employers could apply for and receive their work permit at a port of entry without detailed scrutiny of the circumstances underlying the demand for services or the labour shortage. Strip club owners did not need to seek job validations under the terms of the exotic dancer visa.(7)
Although foreign exotic dancers had traditionally come to Canada from the United States, by the late 1990s, when far greater numbers were arriving from Eastern Europe, concerns about human trafficking began to emerge. In 1997, the federal government announced its intention to revoke the labour validation exemption for exotic dancer visas. However, the Department of Human Resources Development issued a letter stating that employment opportunities for Canadians and permanent residents would not be adversely affected by the current level of foreign exotic dancers entering the country on a temporary basis. At the same time, the Department of Citizenship and Immigration implemented a number of unofficial measures to ensure that few applicants for exotic dancer visas were actually accepted. These measures included refusing visas because of lack of work experience and also because it was found that applicants were unlikely to return home after their visa expired.(8)
The issue came to a head in 2004, when former Minister of Citizenship and Immigration Judy Sgro resigned amid accusations that she had granted a visa extension to a Romanian exotic dancer who had worked on her election campaign. Ms. Sgro was cleared of all conflict-of-interest allegations by the then Ethics Commissioner,(9) but the policy allowing the fast-tracking of visas for foreign exotic dancers was abolished in December 2004, when the Department of Human Resources and Social Development rescinded its positive labour-market opinion of the exotic dancer industry. Since then, applications submitted by exotic dancers have been processed on a case-by-case basis. Immigration officials working at foreign missions require applicants for exotic dancer visas to present a valid work contract; the officials then verify that the employer is legitimate. They are trained to detect and screen out applicants who may be potential victims of trafficking. The officials also apply health and security criteria and ensure that arrangements have been made for the applicants to return to their country of origin once the visa has expired.(10)
Since 2004, the number of permits granted to foreign exotic dancers has declined dramatically. According to information provided by the Department of Citizenship and Immigration, 423 work permits and work permit extensions were issued to foreign exotic dancers in 2004, but this number had dropped to 17 by 2006(11) and stood at 21 in 2007.(12)
Clauses 2 and 3 of Bill C-45 amend the Immigration and Refugee Protection Act to allow immigration officers to refuse to authorize foreign nationals to work in Canada if they are deemed to be at risk of exploitation.
Clause 2 adds a new section 30(1.1) to the Act. Section 30(1.1) states that an immigration officer “may” authorize an applicant foreign national to come to work or study in Canada if the applicant meets the conditions set out in the regulations. By contrast, the wording in Bill C-17 of section 30(1.1) stated that an officer “shall” authorize an applicant to come to work or study in Canada if the applicant meets the conditions set out in the regulations. This change from “shall” in C-17 to “may” in the current bill provides the immigration officer with the discretion to refuse to authorize an applicant to come to work or study in Canada even if the applicant meets the conditions set out in the regulations.
Clause 2 also adds new sections 30(1.2) to 30(1.7) to the Act. Section 30(1.2) states that an officer must refuse to authorize a foreign national to work in Canada if, in the officer’s discretionary opinion, public policy considerations specified in instructions from the Minister justify such a refusal. This discretionary opinion is somewhat curtailed by section 30(1.3), which states that any refusal to give authorization to work in Canada requires a second officer to concur. Section 30(1.4) states that the Minister’s instructions will prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation. Sections 30(1.5) to (1.7) state that these ministerial instructions will be published in the Canada Gazette and shall apply to all applications for authorization to work, including applications already filed that are still awaiting a final decision.
In providing a rationale for the new section 30(1.2), the Department of Citizenship and Immigration indicates that, currently, immigration officials have little discretion to refuse a work permit to an individual who may fit the technical requirements of the Act, even though there may be a public policy reason – such as fear of human trafficking – to refuse admittance. Bill C-45 explicitly provides the Minister and immigration officials with such discretion. The bill does not specify what will be contained in the ministerial instructions, but the Department indicates that these instructions could help identify individuals who may be vulnerable to human trafficking.(13) At second reading of the predecessor Bill C-17 in the House of Commons, the Parliamentary Secretary to the Minister of Citizenship and Immigration stated that such decisions “will be based on a nexus between the occupation that is proposed and the potential for abuse, the potential for degradation, and the potential for humiliating treatment. That will be shown to exist by a causal connection.”(14) Mr. Les Linklater, Director General of the Immigration Branch of the Department of Citizenship and Immigration, stated that ministerial guidelines for Bill C-17 (which was nearly identical to Bill C-45) would be based on objective evidence, notably peer-reviewed research, and would aim to identify individuals at risk of exploitation through risk factors such as: an inability to speak either official language; lack of support networks or financial resources in Canada; and a record of personal experiences heightening the risk of exploitation, such as fear of police or authorities.(15)
The ministerial instructions will be published in the Canada Gazette and come into effect on the day they are published (or any later day specified in the instructions) and will apply to all applications for work permits filed before that day, for which a final decision has not been made. The instructions will cease to have effect when a notice of revocation is published in the Canada Gazette. Clause 3 amends section 94(2) of the Act to require reference to the ministerial instructions in the Minister of Citizenship, Immigration and Multiculturalism’s annual report to Parliament.
It is important to note that this detailed reference to the ministerial instructions is unique in the Immigration and Refugee Protection Act. Although ministerial instructions are referenced elsewhere, this is the only section to establish explicit and detailed requirements as to how those instructions must be published and included in the annual report. This amendment brings an enhanced sense of accountability to the implementation of the instructions and future refusal of temporary work permits based on a risk of exploitation.
Clause 1 of Bill C-45 amends the objectives of the Immigration and Refugee Protection Act with respect to immigration to add the word “public” to the reference to the protection of health and safety currently specified in section 3(1)(h) of the Act. The amended Act will, in the context of immigration, aim to protect public health and safety and to maintain the security of Canadian society.
No information from either the Minister or the Department of Citizenship and Immigration provides background for the rationale behind this change, although it is a significant one, given that health and safety form part of the criteria against which applicants for temporary work permits are assessed and the Department has stated that ministerial instructions must support the objectives of the Act.(16)
It is important to note that Bill C-45 amends only section 3(1), on the objectives of the Act with respect to immigration, which will now refer to “public” health. The bill does not amend section 3(2), on the objectives of the Act with respect to refugees, which will continue to refer to “the health and safety of Canadians.”
The following commentary reflects public response to Bill C-45’s most recent predecessor, Bill C-17. As these bills are substantively similar, the same issues are likely to be raised with regard to Bill C-45.
Anti-trafficking organizations such as the Canadian Centre for Abuse Awareness, the Stop the Trafficking Coalition and the Future Group expressed support for the predecessor Bill C-17 as one of a number of measures preventing trafficking in Canada – in the case of this bill, by deterring at-risk individuals from leaving their country of origin.
The Canadian Bar Association’s Citizenship and Immigration Section (CBA), however, expressed concerns with Bill C-17, arguing that the bill’s broad focus allowed refusal of work permits to any worker in any occupation. The CBA also pointed out that the scope of the ministerial instructions is unknown, and that the bill entrenched broad ministerial authority to issue unreviewable instructions not subject to the public and parliamentary review process that regulations undergo.(17) The CBA emphasized that the bill established no standard of evidence upon which an officer could base his or her decision, other than the officer’s “opinion.” The CBA further argued that enforcement dependent on prediction is inherently fallible, and it criticized the bill’s attempt to predict abusive conduct; instead, it urged stricter enforcement of laws relating to work conditions and exploitation in Canada. Finally, with regard to the fact that the only right of appeal would be a judicial review before the Federal Court, the CBA noted that few leaves to appeal to the Federal Court are granted, the employer would have no standing, no new evidence could be brought forward, and such judicial reviews are costly and time-consuming.
A number of migrant and exotic dancer advocacy groups also expressed concern with the proposed amendments. The Canadian Council for Refugees, the Adult Entertainment Association of Canada, Dancers’ Equal Rights Association, Stella, Exotic Dancers Association, and NakedTruth.ca argued that Bill C-17 might harm the very people it was trying to help by driving foreign exotic dancers into underground establishments where they would be beyond the reach of those monitoring workplace health and safety standards or who are on the alert for other forms of exploitation. University of Toronto law professor Audrey Macklin asserted that it was unreasonable to suppose that Bill C-17 would effectively prevent individuals from entering Canada;(18) and University of New Brunswick history and politics professor Leslie Ann Jeffrey argued that it would actually encourage trafficking by increasing barriers to migration.(19)
Advocacy groups argued that to combat exploitation in strip clubs more effectively, the government should focus on ensuring health and safety standards in such establishments, investigate conditions in clubs that sponsor foreign exotic dancers, and carefully examine the reasons behind the apparent lack of Canadian women applying for such positions.(20) They stated that the government should target exploitation in strip clubs by improving workplace standards in those environments rather than targeting the women who apply for those jobs; the outcome of the government’s approach, they argued, would be to relegate Canadians to the jobs that are considered too exploitative for foreign workers.(21)
The Canadian Council for Refugees also argued that having immigration officers decide that women should be kept out of Canada for their own good is paternalistic, and that women should have the freedom to make their own choices about their lives. Professor Jeffrey expressed concern that poor women might be discriminated against under the regulations accompanying the predecessor Bill C-17.(22) Other commentators asserted that keeping vulnerable people out of Canada is not the best approach to combat trafficking; rather, the government should focus on initiatives to help and empower vulnerable individuals who are already in Canada.(23)
Finally, strip club owners and the Adult Entertainment Association of Canada expressed frustration with Bill C-17 and its predecessor, Bill C-57, claiming that it is difficult to find Canadian exotic dancers and that, if the bills were passed, they would challenge the amendments in court on the grounds of discrimination.(24)
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
This publication is based in large part on a Legislative Summary of a previous version of Bill C-45; see Laura Barnett, Bill C-17: An Act to amend the Immigration and Refugee Protection Act, LS-571E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 2 November 2007.
(1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable
(a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for a term of not more than fourteen years in any other case.
© Library of Parliament
