Cnseil canadien pur les réfugiés Canadian Cuncil fr Refugees Trafficked Persns: Aviding Cllateral Harm A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk January 2018
Trafficked Persns: Aviding Cllateral Harm Table f Cntents I. Executive Summary... 3 2. Methdlgy... 5 3. Results... 7 3.2. Respnse and Legal Remedies... 11 3.3 Best Practices... 14 3.4 Opprtunities fr Engagement... 16 4. Resurces... 17 5. Fcus Grup Discussin... 18 6. Cnclusin... 20. 2
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk Over the last year, the CCR has been wrking n a prject t imprve access t legal services and t justice by building the capacity f refugee and immigratin lawyers acrss Canada t identify and prvide supprt t trafficked r ptentially trafficked nn-citizens. Twards these bjectives, the CCR cnducted a legal needs cnsultatin that included administering a questinnaire and cnducting a fcus grup discussin with immigratin and refugee lawyers. Respndents cmpleted the questinnaire directly r thrugh guided phne interviews. The fcus grup discussin tk place thrugh a virtual meeting platfrm. During the cnsultatin prcess, respndents named wrking with peple in three types f trafficking situatins: sex trafficking, labur trafficking, and frced marriage. The cnsultatin was valuable in generating knwledge abut legal challenges, gaps in services and legislatin, and prmising practices in representing trafficked and ptentially trafficked persns in Canada. It was als instrumental in guiding the develpment f a legal educatin methdlgy as well as resurce materials. Belw is a summary f the main themes and needs emerging frm the cnsultatin. Trafficking Assessment There is n ckie cutter apprach, assess based n the narrative prvided by persns with lived experience. Human trafficking needs t be understd and cnceptualized in a brader framewrk f explitatin, cercin and pwer imbalance. The cnceptual framewrk shuld als reflect the rle f the state in creating the cnditins fr trafficking (eg. the Temprary Freign Wrker Prgram TFWP) Tls and resurces are helpful fr creating a baseline f understanding and develping a mre systematic apprach t service prvisin. There is a service gap in accessing legal advice and assistance. In particular, There is a lack f resurces devted t labur trafficking cmpared t sex trafficking, this is especially s fr thse withut status r with precarius status. The service gap is a trust gap there is a lack f trust by cmmunities mst likely t be trafficked (eg. migrant wrkers, sex wrkers, undcumented wrkers, etc.); all service prviders shuld perate under the principle f access withut fear. The legal aid system acrss all prvinces needs prper funding fr recurses t supprt trafficked and ptentially trafficked persns (eg. Temprary Residence Permits -TRPs) currently there is uneven funding between prvinces. 3
Trafficked Persns: Aviding Cllateral Harm Legal Remedies and Respnses The criminalizatin and rescue framewrk f trafficking legislatin creates barriers t prtectin, it is nt rights-based. Immigratin laws and punitive criminal laws can create cllateral damage, place peple at risk. It is difficult t access legal remedies (whether TRPs, Humanitarian and Cmpassinate grunds, emplyment r human rights remedies), especially fr thse mst vulnerable, including migrant wrkers with precarius r undcumented status, indigenus wmen, and migrant sex wrkers. A discretinary apprach t federal recurses (pursuing TRPs r permanent immigratin pathways, pursuing trafficking ffences) as well as prvincial labur and human rights recurses is inadequate and can create harm need t be mre rights based. There is a discnnect between the issues and the respnse by authrities need t bring institutins up t speed abut explitatin and trafficking, make prcesses mre transparent and timely. Need t g beynd thinking abut criminal law and pay mre attentin t strengthening thse that fcus n reparatins fr the survivr, frm a rights-based perspective (eg. Human Rights and emplyment standards legislatin). Law refrm is needed in rder t remve barriers t justice. This includes refrm in the fllwing areas: Best Practices Refrm measures in the TFWP that create vulnerabilities and risks; Remve the criminalizatin f sex wrk, which puts peple at risk in many ways; Recnsider the fear fr safety requirement in trafficking legislatin, which makes the evidentiary burden t high; Ultimately need t have access t permanent status (eg. permanent residence upn arrival, Humanitarian and Cmpassinate branch fr trafficking); pen wrk permits such as thse intrduced in B.C. may be a gd intermediary measure this shuld als be intrduced in ther prvinces. Cnnect and cllabrate with cmmunity rganizatins, use a team apprach. Be creative and strategic abut gathering evidence/seeking remedies (smetimes seek ne remedy as a means twards gathering evidence fr anther remedy). Use trauma-infrmed practice t ensure the respect f survivrs, prvide realistic and infrmed ptins (disclse risks). 4
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk relatinship with assciatins f lawyers and ther rganizatins, we invited these grups t cllabrate in the needs cnsultatin by suggesting vehicles fr utreach t immigratin and refugee lawyers, by suggesting specific lawyers, r by taking part in the cnsultatin directly. An advisry grup als prvided input n utreach. A shrt-list f 30 immigratin and refugee lawyers were invited t respnd t the questinnaire directly r during a guided phne interview. The questinnaire was designed t gain insight n trafficking assessment, legal remedies and respnses, best practices, and pprtunities fr engagement. The criteria fr the selectin f lawyers: past experience with trafficking r labur explitatin, interest in trafficking, reginal representatin, cnnectin t ne f the utreach assciatins r advisry grup members. Seventeen lawyers respnded t the request t participate in the cnsultatin between March and Nvember 2017. The sample f respndents was relatively small but targeted in rder t slicit rbust respnses frm legal practitiners mst likely t have experience with trafficked r ptentially trafficked persns. This was an effective strategy. Selected Respndents Natalie Drlet, West Cast Dmestic Wrkers Assciatin, Vancuver, BC Devyn Cusineau, BC Human Rights Tribunal (frmerly f Cmmunity Legal Assistance Sciety), Vancuver, BC Anna Kuranicheva, Edmntn Cmmunity Legal Centre (ECLC), Edmntn, Alberta Dry Jade, Canadian Assciatin f Prfessinal Immigratin Cnsultants (CAPIC), Trnt, Ontari Shalini Knanur, Suth Asian Legal Clinic f Ontari, Trnt, Ontari Deepa Matt, Barbara Schilifer Clinic, Trnt, Ontari Jennifer Stne, Neighburhd Legal Services, Trnt, Ontari Fay Faraday, Trnt, Ontari Vincent Wan Shun Wng, Chinese and Sutheast Asian Legal Clinic, Trnt, Ontari Canadian Assciatin f Refugee Lawyers (CARL) Walter Chi Yan Tm, Mntreal, Quebec Marie-Andrée Fgg, Mntreal, Quebec *There were 17 respndents in ttal. Fur respndents did nt want t be listed as participants, ne did nt cmplete the cnsultatin prcess. 5
Trafficked Persns: Aviding Cllateral Harm Analysis f respndents Seventeen peple r 57% f thse slicited respnded t the needs cnsultatin: 6 interviews were cnducted by phne, 10 respnded t the questinnaire, 1 respnse remains incmplete. Furteen r 87.5% f respndents have directly prvided legal cunsel t trafficked r ptentially trafficked persns. One respndent was excluded frm the analysis since they described smuggling situatins rather than trafficking. Table 1: Respndents by City Respndents by City Trnt 7 Mntreal 4 Edmntn 2 Vancuver 3 Ottawa 1 Ttal 17 Table 2: Respndents by Prvince Respndents by Prvince Ontari 8 Quebec 4 Alberta 2 B.C. 3 Ttal 17 Table 3: Respndents by type f law Breakdwn by type f law Legal clinic 9 Private practice 6 Immigratin cnsultant 1 Human Rights Tribunal 1 6
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk The questinnaire and fcus grup discussin were designed t gain knwledge n trafficking assessment, legal respnses and remedies, barriers t prtectin and access t justice, best practices and challenges in representing trafficked and ptentially trafficking persns. The legal needs cnsultatin als sught input n legal training needs and pprtunities fr engagement. Belw are the results in each f these areas. 3.1. Trafficking Assessment What assessment prcedures r prtcls are fllwed? Tune-in t red flags Respndents said generally self-identify as trafficked. Rather, ne needs t listen t persn fr evidence r mentin f the fllwing, cnsidered t be red flags: Mvements cntrlled r mnitred; harburing/cnfinement/islatin/lack f chice (where they can wrk, wh they can talk t, access t utside wrld) Pr cnditins (wrk lng hurs fr little r n mney, n vertime, emplyer prvides husing/wns husing) Signs f neglect r abuse (identity dcuments taken frm them, misadvised abut Canadian immigratin laws, threats f harm f deprtatin, paid recruitment fees t get int Canada, debt bndage, signs f pr physical/mental health, lack f familial/scial ties Is part f vulnerable grup: has precarius immigratin status temprary r n status; sex wrkers, caregivers with clsed wrk permits, indigenus wmen Use apprpriate tls, resurces Respndents had varying levels f knwledge and experience with trafficking. One respndent (with first trafficking case) referred t natinal task frce n sex trafficking, media cverage n sex trafficking, UN Reprt n Human Trafficking, the UN Palerm Prtcl n Trafficking, and infrmatin frm nn-prfit rganizatin t understand and assess trafficking. Respndents with mre experience assess based n the narrative prvided by client Other resurces, tls mentined: CCR trafficking assessment tl, CCR webinar, RCMP resurces Respndents in Alberta indicated their prtcl is t refer peple t Actin Calitin n Human Trafficking Alberta (ACT Alberta) fr assessment 7
Trafficked Persns: Aviding Cllateral Harm Make distinctin between explitatin and trafficking Respndents rely n their previus experience t understand and cnceptualize experiential narratives. This includes learning t distinguish what sunds like trafficking versus ther frms f explitatin. Examples: We d nt have any specific prcedure r prtcl t determine if smene has (r is being) trafficked, but we frame the issue in terms f explitatin, cercin, and pwer imbalance - which situates human trafficking within a brader and mre useful framewrk fr understanding ppressin. Vincent Wng We g, map it nt the cntinuum f explitatin, and use experience t understand and cnceptualize things. Walter Tm In terms f the caregivers wh cme t the ffice, these are suspected cases f explitatin, but never flagged with a trafficking narrative. In several cases, the client endured awful years, was nt allwed t prepare fd in family hme r eat in family hme, wrked all hurs, but had n chice because had t put in tw years after which culd apply fr permanent residence under the live in care giver class. All cases were wmen. Annymus Gaps in services is an nging challenge fr sme respndents, especially prviding services fr vulnerable grups. Examples: I recgnize the serius immigratin service gap in Edmntn, when it cmes t nn-prfit rganizatins and settlement agencies accessing legal advice/assistance with applicatins fr peple f lw incme. Annymus A migrant wrkers needs assessment is being implemented in Alberta, including the need t understand immigratin law and pathways t citizenship, permanent residence. is being develped in Alberta. Respndents named wrking with peple in three types f trafficking situatins: sex trafficking, labur trafficking, and frced marriage. 8
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk Hw is a respnse plan determined? Interview Prcess Need t be sensitive t trauma, use a hlistic apprach (nt t much in ne sitting), take the time t build trust, disclse the risks assciated with legal respnses, prvide chices and ensure there is infrmed cnsent. Priritize Needs Respnse is based n needs and what the persn wants. These are priritized and distinguished t determine legal and ther service prvisin needs. The starting pint is determining the pers It is imprtant t delineate between explitative cnditins and the element f psychlgical r physical cercin that is necessary t classify an issue as that f trafficking. Explitative cnditins ccur in many different areas particularly where there are intersecting areas f marginalizatin (e.g. migrant wrkers, wmen, LGTBQ cmmunities, racialized individuals, etc.). Many f these cnditins are thse that we seek t alleviate, but are nt situatins f trafficking and service prviders (including lawyers) shuld be vary f imprperly treating them as such. If we d find that there is a situatin f cercin in additin t explitatin, we fcus n attempting t empwer that client with infrmatin and chices. In the case f sex trafficking, because the current Criminal Cde framewrk and Immigratin laws are s brad and punitive as t criminalize everything surrunding sex wrk, it is abslutely imperative that clients understand the risks f ptential arrest, detainment, and deprtatin and that service prviders ensure that clients are fully infrmed befre revealing themselves t law enfrcement. Vincent Wng Refer t legal and ther services Legal services (criminal, immigratin, emplyment) are prvided directly r as part f a team apprach. Mst mentined als referring a persn fr additinal supprts such as incme, cunselling, supprt in making an exit plan, husing and getting t safety (eg. safe huse, shelter). Tw specific prvincial netwrks were mentined as referrals fr assessment and/r multiple supprts: ACT Alberta and the Calitin québécise cntre la traite des persnnes (CQCTP). Example: The litigatin respnse is intertwined with cmmunity rganizing, and a cllective respnse. Smetimes it t ge Annymus One f the biggest challenges is crdinating different levels f services needed. Lawyers have t keep nging relatinships with service prviders and clients this is time cnsuming. Annymus 9
Trafficked Persns: Aviding Cllateral Harm Is legislatin cnsulted in guiding assessment r respnse? Lawyers variably rely n legislatin, an rganic interview prcess r an established assessment prtcl. It depends n the lawyer and their previus experience; there is n standard respnse. When legislatin was mentined as guiding assessment r legal respnses, lawyers refer t federal legislatin related t trafficking (IRPA and the Criminal Cde), and/r prvincial emplyment standards legislatin, human rights legislatin, civil remedies t different degrees. One staff immigratin lawyer mentined relying n IRCC guidelines n issuing TRPs fr victims f trafficking, and smetimes cnsulted the UN Trafficking Prtcl. Sme may have knwledge in many f these areas r refer t thers with mre expertise in specific areas. Challenges f legislatin Many challenges emerged related t current legislatin when cnsidering assessment r legal respnse. In particular the systemic barriers t prtectin fr peple with precarius status, especially migrant sex wrkers: Federal trafficking legislatin is seen as prblematic because it has a criminalizatin rescue framewrk (puts wmen at risk): Fr example: Characterizing peple as victims because systemic ppressin cnstrains ptins fr survival is a damaging framewrk. Annymus Federal prvisins under IRPA and the Criminal Cde are cnsidered useful in cases f labur trafficking, but may put thse with precarius immigratin status at risk, especially migrant sex wrkers. Fr example: Within the cntext f migrant sex wrk, use f IRPA s. 118 and/r Criminal Cde (CC) s. 279.01 can ften expse clients t increased risk f arrest, detentin, and deprtatin because f the extremely brad way in which trafficking ffenses are framed in the CC (withut an element f cercin necessary) and the criminalizatin f sex wrk as well as the tie between criminal ffenses and immigratin status within ss. 36 and 64 f the IRPA. Vincent Wng Emplyment and human rights prvisins may als put thse with precarius status at risk. Fr example: ESA and Cde prvisins can ptentially be helpful generally fr migrant wrkers, but they are dangerus fr thse ut f status because emplyer can ptentially tip ff CBSA if there are any physical hearings in which client participatin is necessary. Vincent Wng Fr sex wrkers, federal prvisins as well as prvincial emplyment standards and human rights remedies are nt cnsidered t prvide prtectin because f the criminalizatin f sex wrk. 10
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk Fr example: The criminal prvisins f sex wrk are als ften used t charge and arrest sex wrkers wh d nt identify as victims f trafficking fr prviding mutual help t each ther. Because f these prblematic macrbased issues, these criminal and quasi criminal ffenses are generally unsuited fr clients wh are migrant sex wrkers. Fr sex wrkers, generally ESA and Cde prvisins prvide de fact n prtectin because f the criminalizatin f sex wrk, fear f immigratin authrities, and the stigma f sex wrk nt really being treated as well. As a result, systemic and egregius emplyment standards and health and safety vilatins cannt be addressed because f the criminalizatin f sex wrk. Vincent Wng 3.2. Respnse and Legal Remedies Respndents indicated that their legal respnse depends n the situatin. Varius remedies are used fr prtectin either t regularize status r get redress fr discriminatin, explitatin: Temprary Residence Permit Humanitarian & Cmpassinate Grunds applicatins Emplyment standards branch cmplaints Small claims curt cases Refugee claims Spusal spnsrship Human rights cmplaints Open wrk permits Criminal injuries cmpensatin bard Applicatins fr welfare Unemplyment benefits Unpaid wages Labur Market Impact Assessment Legal services are usually successful if they cnsider the utcme the client is seeking, the ptins mst likely t succeed, and are prvided using creative evidence-gathering strategies. Fr example: Fr ne client, I had applied fr an unemplyment claim, and it wrked since the client had came in legally s was able t make an unemplyment claim. Emplyment insurance (EI) was used as a strategy in rder t prve H&C applicatin. Annymus 11
Trafficked Persns: Aviding Cllateral Harm Challenges Limits f prtectin Respndents indicated numerus shrtcmings in current legislatin: A discretinary apprach creates barriers t prtectin as human rights cnsideratins are nt priritized. Example: biggest challenge is nt limited t trafficking scenaris. If smene has fallen ut f status, the immigratin system sets up a discretinary Humanitarian & Cmpassinate grunds apprach, twinned with the admissibility, criminal mdel apprach where yu have t beg fr mercy t get arund it. Annymus In general, immigratin practitiners feel there are limited legal tls available and that existing categries are insufficient. Fr example: Clients never fit neatly int categry, and there are nt a lt f rights-based cnsideratins fr peple wh are ut f status and have been discriminated Annymus There is a lack f prtectin while waiting fr a respnse t a legal remedy. Examples: One respndent pinted ut that there is n stay f remval fr nn-cmpliance while waiting fr respnse fr a TRP r an H&C. In the meantime, the persn remains in a precarius situatin, withut cnsideratin f human rights issues (such as mental health, lack f safety). we succeeded in finding a safe space but then get int new situatin f ptential lack f safety. I wnder n a systemic level, if remedies are prviding enugh preventin frm getting back int trafficked situatin. Fr peple wh have been expsed t a cycle f psychlgical abuse, with blurred lines f healthy relatinships, this experience can make them targets again. Annymus There is a discnnect between the issues and the respnse by authrities, especially in cases where peple have precarius status. In particular, sme respndents pint t a heavy-handed apprach by the CBSA, lack f understanding arund explitatin by fficials, a bias twards assuming guilt, and a lack f empathy abut pwer imbalances. Examples: In ne case, a nn-status client was arrested, detained and transferred t maximum security prisn because admitted was depressed, CBSA cnsidered her a flight risk (may have killed herself) and prisn was cnsidered t have better mental health supprts then immigratin hlding centre. I d explitative situatins. Many enfrcement-riented fficers begin with an assumptin f culpability n the part f all nn-cmpliant freign natinals, and many are als surprisingly insensitive t pwer gradients inherent in many empl Vincent Wng 12
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk Sme peple in institutins have saviur cmplex (fr eg. plice, fficials, RCMP). As a result, fr clients, the jurney is nt empwering, they are kept ut f the lp, nt prvided with enugh cntext t explain why institutins are directing them ne way r anther. Annymus There is a lack f clarity arund prcedures. Fr example: One respndent said,. She smetimes received cntradictry infrmatin arund fees and ther things. In ne example, she had paid $600 in fees that were eventually reimbursed as the client turned ut t be exempted. Criteria used by IRCC is nt adequate t assess trafficking survivrs. The TRP Operatinal Guide states that whether r nt a victim lays charges shuld nt be a criteria fr TRPs but in practice, this seems t be the case. It is difficult t access remedies, whether TRPs, H&Cs, emplyment r human rights remedies. All require lengthy prcess, and even psitive judgements may be difficult t enfrce. Examples: VTIP TRPs are almst impssible t get, and judicial reviews f these negative decisins are als difficult t win. If the TRP is unsuccessful and the client is withut status, they have very limited ptins. H&Cs will nly be successful in very limited cases. Natalie Drlet In ne case, ur client was refused a TRP, lst a judicial review, and then wn the highest standing award at the BC Human Rights Tribunal against her emplyer. After this, she was successful with a subsequent TRP and H&C. We have t wnder if this was nly because CIC did nt want t risk embarrassment. Other clients were deprted fllwin Natalie Drlet One respndent said there are a lt f hps t jump thrugh t get a TRP: In a dmestic wrker trafficking case, used the credibility f the RCMP t enhance CBSA and CIC applicatin fr a TRP. The TRP was apprved. Later, applied fr an H&C but it was refused three mnths later. Als went t the labur bard and gt a judgement f $35,000 against the emplyer but there were difficulties enfrcing it. The emplyer disappeared after that. At least there is jurisprudence. Walter Tm Anther respndent said they wuld never start with a TRP because. The respndent pints t an example where a TRP was refused because the persn indicated they wanted t stay in Canada permanently. At the same time, H&Cs can take 6 mnths t 5 years fr a respnse. These are ften used in cases where peple cme frward having been undergrund fr many years. TRPs might be mre practical in cases where a client is facing imminent remval. 13
Trafficked Persns: Aviding Cllateral Harm Sme remedies are cnsidered prmising, including: The pen wrk permits fr clients wh have experienced explitatin under the new BC prject fr pen wrk permits fr temprary freign wrkers at risk. Using human rights cmplaints t make institutins libel, r t file human rights cmplaints if an individual is nt being treated prperly by authrities. 3.3 Best Practices The fllwing best practices have been identified: Use screening tls and d yur hmewrk. Screening tls are useful and necessary t assess different pieces f infrmatin, fr example: red flags, legal ptins, and levels f risk t determine apprpriate services. Read and becme familiar with relevant resurces and materials n trafficking (see page 18) Be creative abut evidence gathering: We have t be creative in the ways we prvide evidence. It can be difficult t prve that explitatin has taken place because ften there are n witnesses. We will almst always file a legal cmplaint in anther venue (emplyment standards, etc.) and then attach a cpy f the cmplaint as evidence with the immigratin applicatin. Annymus D cmmunity utreach, and use a multi-sectral, team apprach: Use a team apprach t prvide legal supprt as well as wrap-arund cllective supprt such as scial, psychlgical supprt, as well as ther pssible needs. This means practicing frm a cmmunity perspective (vs. traditinal legal practice) -- let migrant wrker cmmunities and shelters knw that yur service is available. Outreach t lawyers, and key service prviders that have training and knwledge base. If available, refer persn t lcal rganizatins wh many have special mandate and multifaceted capacity t assist trafficking survivrs, ACT Alberta fr example. Legal team apprach culd mean recruiting ther lawyers t assist survivrs with immigratin issues, either pr bn r sliding scale rates. It culd als mean getting law students invlved t assist lawyers with cmpiling and cmpleting immigratin applicatins. Seek help lawyers, law students, friends, family members, supprt wrkers frm lcal service prviders - - t fill ut applicatin frms, facilitate translatin f dcuments, and guide the client in btaining evidence frm verseas. The benefit f using this apprach: thse ging ut t d utreach, we are learning mre abut the realities f industries where cnditins are ripe fr trafficking and explitatin and by making changes t ur plicies, intakes, and cmmunity utreach and partnership strategies, we are getting mre and mre clients frm extremely Vincent Wng 14
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk Trauma-infrmed practice Legal supprt needs t be rted in trauma infrmed practice in rder t understand clients. Sme bservatins arund this include: the abuser. Need t understand hw trauma plays ut fr wmen r men wh are vulnerable because they have need t make peple happy, abusers prey n this vulnerability. Annymus hrnlgical way, instead it cmes ut in pieces. Need t listen carefully and take time when interviewing clients. Take the time t build trust. We try t ask pen-ended questins in rder t prvide space fr the client t tell their stry in a way that Annymus Need t manage expectatins, lawyers need t be aware that client has trust issues (due t trauma). Understand their realities and needs as they describe them t yu, analyze the situatin frm a rights-based apprach and anti-ppressin apprach. Understand and identify ptential intersecting issues such as language, legal systems, immigratin status, finances, health, safety, racism, sexism, and family. Understand that intake questins with respect t ccupatin and incme ften can islate migrant wrkers and survivrs f trafficking. Ask pen-ended, nn-judgmental questins. R. Ensure ptin fr annymus and cnfidential service. E they knw the limits f the service yu can prvide. Intrduce infrmatin and resurces that yu think are relevant and useful t them. Wrk t prvide practical and helpful ptins that can be assessed by the client. Prvide clear infrmatin n immigratin ptins, identify level f risk with each ptin, assessment shuld include next steps, ptential utcmes f different avenues. Understand ptential risks f disclsure f status/wrk as well as stigma in the case f sex wrk. One respndent shared that fr sme, sme cmfrts like a big huse, access t a car, etc. It is a big change t leave that cntext, it can lead t depressin, mental health issues. This adds t their trauma; lt f clients said if I knew it wuld take this Annymus Once red flags are identified during the screening prcess, it is cnsidered imprtant t fllw up with interviews, and t have gd ntetaking skills. 15
Trafficked Persns: Aviding Cllateral Harm 3.4 Opprtunities fr Engagement We need mre understanding f, and engagement with, the cmplex and intersecting realities f the cmmunities in which human trafficking raids and wrk is being dne t avid unintended harm t the individuals in thse cmmunities. Vincent Wng Respndents made many suggestins n what they wuld like t see in a legal training. These are rganized under three learning categries (building, applying and integrating knwledge): Knwledge-building What cnstitutes trafficking? What criteria t use t assess, hw t assess, what evidence is required Knwledge-applicatin An verview f human trafficking prvisins in IRPA and the Criminal Cde Legal infrmatin abut the varius remedies fr trafficked persns; why privilege ne apprach ver anther (fr example, H&C versus TRP) The basics n TRPs hw t apply, what yu need t knw, etc. Details n immigratin ptins What wuld be invlved fr a trafficked persn during a criminal prceeding Frm IRCC perspective - what grunds and what kind f evidence are required t apprve a TRP applicatin and an applicatin fr pen wrk permit frm a suspected (r cnfirmed) victim f trafficking. Case examples Knwledge-integratin Prfessinal ethics trauma-infrmed, hw t interview, etc. Hw t use a multi-sectral apprach t service respnse lawyers, cuncillrs, healthcare, etc. Details n wrking with plice Cnslidated infrmatin need it all in ne place 16
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk Engaging with institutins The interviews and questinnaire als gleaned a series f needs and recmmendatins fr engaging with institutins arund trafficking: Educate stakehlders n the definitin f trafficking and cntinuum f explitatin. Educate institutins (RCMP, authrities, Human Rights Cmmissins) n immigratin law, Temprary Freign Wrker Prgram (TFWP). Quick and timely access t smene with in-depth knwledge f hw determinatins n victims f trafficking are dne and what criteria are applied in Canada (r mre narrwly within IRCC), s that we can quickly determine whether a client is likely (r nt) t be a trafficking survivr. Access t the IRCC/CBSA fficers respnsible fr a particular client case, fr the purpses f exchanging infrmatin, making TRP applicatins, requesting pen wrk permits, asking t defer remval r refrain frm remval/enfrcement steps. Substantive criteria t assess and determine wh wuld be fund a survivr f trafficking (as applied in Canada by RCMP, lcal plice, and IRCC). Input frm IRCC abut what grunds and what kind f evidence they require t apprve a TRP applicatin and an applicatin fr pen wrk permit frm a suspected (r cnfirmed) victim f trafficking. Request extensin f time and deferral f remval frm the IRCC- CBSA ffices that are invlved in the case. Prvide list f fficials at IRCC that are respnsible fr trafficking s knw where t address questins. Faster respnses frm institutins. Respndents referred t a number f resurces in the curse f the cnsultatin: United Natins Human Trafficking Prtcl Temprary Resident Permits (TRPs): Cnsideratins specific t victims f human trafficking Handbk fr Criminal Justice Practitiners fr Trafficking in Persns Migrant and Asian Sex Wrkers Netwrk Legal Resurces fr Service Prviders MCIS Language Slutins Online Human Trafficking Training trafficking.ca (CCR trafficking website) CCR Natinal Human Trafficking Assessment Tl Thinking Outside the Bx: Develping Case Law n Trafficking CCR webinar presented by Crwn Prsecutr Michelle Fergusn 17
Trafficked Persns: Aviding Cllateral Harm In additin t the questinnaire administered t individual respndents, a fcus grup was held t discuss sme f key areas identified in the cnsultatin. The bjectives were t have an explratry discussin t validate sme f the key themes, identify themes that may nt have been captured in the cnsultatin with individual lawyers, and prvide an pprtunity fr lawyers t exchange challenges and prmising practices. Participants All f the individual participants in the legal needs cnsultatin were invited t participate. Eight expressed interest, and fur were actually available t take part in the discussin: Natalie Drlet, West Cast Dmestic Wrkers Assciatin, Vancuver, B.C. (she als c-mderated the discussin) Shalini Knanur, Suth Asian Legal Clinic f Ontari, Trnt, Ont. Walter Chi Yan Tm, PINAY, Mntreal, QC Vincent Wan Shun Wng, Chinese and Sutheast Asian Legal Clinic, Trnt, Ont. All participants have experience with cases f sex trafficking, labur trafficking, frced marriage r a cmbinatin f these. Three wrk fr direct service legal clinics. One is a lawyer and advcate with a dmestic wrker assciatin in Mntreal. The fcus grup discussin held n January 25, 2018 fcused n three areas: Results: Challenges arund legal services needs Challenges in framing the prblem (explitatin, trafficking) Challenges arund recurses and remedies The fllwing is a summary f the key pints emerging frm the discussin: There is a service gap when it cmes t addressing the legal needs f trafficked r ptentially trafficked persns. The resurces legal practitiners are able t prvide reflect a stp gap apprach (based n wh yu knw are able t cnnect with) rather than a systematic apprach t assessment and respnse. There is a lack f resurces devted t labur trafficking cmpared t sex trafficking, this is especially perceived t be the case in Quebec. The service gap is a trust gap there is a lack f trust by cmmunities mst likely t be trafficked; all service prviders shuld perate under the principle f access withut fear. It is primrdial fr lawyers t understand and disclse the risks f pursuing any legal recurse, especially fr peple with n status r precarius status. Need prper funding t the legal aid system acrss all prvinces fr recurses t supprt trafficked and ptentially trafficked persns (eg. TRPs) currently there 18
A Needs Cnsultatin n Access t Justice fr Trafficked Persns and Thse at Risk is uneven funding between prvinces. In B.C., the WCDWA is the nly rganizatin that is filing TRPs in the prvince, in Quebec there is a lack f funding fr cases f labur trafficking. The cnceptual framewrk fr understanding trafficking shuld als reflect the rle f the state in creating the cnditins fr trafficking (eg. the TFWP). It is telling that there has nly been ne successful cnvictin fr labur trafficking under the Criminal Cde, and n cnvictins fr labur trafficking under IRPA. There is a difference between laws that are punitive (eg. Criminal Cde) versus thse that fcus n reparatins fr the survivr (eg. Human Rights Tribunals, emplyment standards). Need t g beynd thinking abut criminal law - the latter takes a mre rights-based apprach with a fcus n the survivr. It is wrth advcating fr greater recgnitin f trafficking within human rights and labur cdes. Law refrm is needed in rder t remve barriers t justice. This includes refrm in the fllwing areas: Temprary Freign Wrker Prgram (TFWP) refrm measures that create vulnerabilities and risks Criminal Cde remve the criminalizatin f sex wrk, which puts peple at risk in many ways Criminal Cde The need t prve a persn fears fr their safety in rder fr their explitatin t be cnsidered trafficking is a stipulatin in Canadian law. This definitin is narrwer than in internatinal law. Althugh the pririty fr explited persns withut status is t regularize their status, there is still a place fr remedies under the Criminal Cde under a revised versin f the current legislatin. Remedies: ultimately need t advcate fr permanent status (eg. permanent residence upn arrival, Humanitarian and Cmpassinate branch fr trafficking), pen wrk permits may be a gd intermediary measure there are signs that the pen wrk permit mdel in B.C. is being pushed in Ontari, and ther prvinces. There needs t be mre clarity and transparency amng the institutins respnsible fr enfrcing legislatin. 19
Trafficked Persns: Aviding Cllateral Harm The cnsultatin was instrumental in guiding the develpment f a legal educatin methdlgy antitrafficking wrk t imprve access t legislative prtectin fr trafficked nn-citizens and ultimately eliminate plicy barriers. This research cntributes t building legal educatin n trafficking. It als cntributes t the bdy f knwledge n the scpe f human trafficking cases, rights issues faced by trafficked and ptentially trafficked nn-citizens, and recurses available t lawyers t vercme barriers. Cnseil canadien pur les réfugiés Canadian Cuncil fr Refugees ccrweb.ca January 2018