A Response to Bill 96, the Anti-Human Trafficking Act, 2017 May 2017
Introduction This document is a submission of the Ontario Federation of Indigenous Friendship Centres to the Standing Committee on Social Policy regarding Bill 96, An Act to enact the Human Trafficking Awareness Day Act, 2017 and the Prevention of and Remedies for Human Trafficking Act, 2017 (The Act). This response considers the proposed legislation, making recommendations on needed revisions and to highlight issues within the proposed legislation. About the Ontario Federation of Indigenous Friendship Centres The Ontario Federation of Indigenous Friendship Centres (OFIFC) is a provincial Indigenous organisation representing the collective interests of twenty-eight member Friendship Centres located in towns and cities throughout Ontario. The vision of the Indigenous Friendship Centre Movement is to improve the quality of life for Indigenous people living in an urban environment by supporting self-determined activities which encourage equal access to, and participation in, Canadian society and which respects Indigenous cultural distinctiveness. The OFIFC administers wholistic, culture-based programs and initiatives which are delivered by local Friendship Centres in areas such as justice, children and youth, health, family support, long term care, healing and wellness, education, and employment and training. Recognized as hubs of the urban Indigenous community, Friendship Centres respond to the needs of tens of thousands of community members requiring culture-based and culturally-appropriate services every day. The Friendship Centres represent the most significant off-reserve Indigenous service infrastructure across Ontario and are dedicated to achieving greater participation of all urban Indigenous people in all facets of society, inclusive of First Nation Status/Non-Status, Métis, Inuit and all other people who identify as Indigenous to Turtle Island. The OFIFC assists the Friendship Centres through program delivery and community development support as well as advocacy. Through supporting self-determined activities that encourage equal access to and participation in Canadian society and which respect Indigenous cultural distinctiveness, the OFIFC works to improve the quality of life for Indigenous people living in an urban environment. As locally-driven organizations, Friendship Centres engage their urban Indigenous communities through culture-based programs and services that shape their cultural components based on their local communities, ensuring cultural efforts are always from and for that community. Ending violence against Indigenous women and girls is one of the key areas of advocacy and policy work undertaken by the OFIFC. Since 2007, the OFIFC has worked collaboratively with the Ontario Government and other Indigenous organizations to develop the Strategic Framework to End Violence Against Indigenous Women. To end violence, Indigenous women, families and communities must be able to develop 2
and maintain ways of existing that are distinct from the mainstream. Ongoing resistance to the timely reestablishment of social systems and ways of being distinct to Indigenous people reinforces colonial violence and the social and economic marginalization of Indigenous women. By developing and governing these mechanisms, Indigenous people are best able to overcome all forms of violence, including the ongoing social and economic disadvantage of Indigenous women, addressing the current impacts of this historical discrimination. From 2010-2016 the OFIFC served as co-chair of the Joint Working Group to End Violence Against Indigenous women, a multi-partner working group consisting of five province-wide Indigenous organizations and ten provincial ministries. The OFIFC is currently the Indigenous co-chair of the Executive Committee to End Violence Against Indigenous Women, a multi-partner committee consisting of seven Indigenous organizations and two provincial ministries, which oversee the implementation of Walking Together: Ontario s Long-Term Strategy to End Violence Against Indigenous Women. The Executive Committee provides accountability and oversight of actions outlined in Walking Together and provides a space for Indigenous organizations to recommend concrete and effective action that can be taken to remove systemic causes of violence and increase the safety of Indigenous women and girls in Ontario. The Executive Committee also works directly with newly formed Provincial Committees to End Violence Against Indigenous Women. The Provincial Committees address priority action areas within the following categories: Prevention and Awareness; Community Safety and Healing; Policing and Justice; Improved Data and Research; Human Trafficking; and Supporting Children, Youth and Families. With this distinct perspective, the OFIFC can provide evidence on policies and practices implemented by the OFIFC and member Friendship Centres in response to violence experienced by Indigenous women and girls in Ontario that have been effective in reducing violence and increasing safety. 3
Causes of Violence Against Indigenous Women and Girls The social, economic, political and physical marginalisation of Indigenous women, which is rooted in colonialism, has resulted in Indigenous women across Canada continuing to be more vulnerable to violence and less able to escape it. The violence, poverty, and the breakdown of social cohesion that Indigenous communities experience is the legacy of past policies and laws that systematically dispossessed Indigenous people of land, economic resources, culture, and the social and political institutions through which they took care of their own. The impact of colonial laws and policies, proliferation of sexual violence and imagery of sexualized violence, and all other factors that have caused the past and present structural inequalities have resulted in the murder and disappearance of so many Indigenous women and girls. But beyond these most heinous outcomes, racialized, sexualized and gendered violence persists in many communities and takes many forms, including commercial sexual exploitation and domestic human trafficking, relationship and intimate partner violence, sexual violence and harassment and homicide. Inadequate responses by police, prosecution and the inability to establish effective methods to prevent violence against Indigenous women and girls impacts all Indigenous people. Friendship Centres across Ontario support Indigenous women, girls and their families and are dedicated to supporting them where they live. Local solutions like The Strategic Framework to End Violence Against Aboriginal Women consider local and regional needs, as it was developed within Indigenous communities and is jointly endorsed by seven province-wide Indigenous organizations in Ontario and ten provincial ministries. These local solutions are necessary to ensure that alongside a national focus on ending systemic violence, that local needs and leadership are primary to the success of implementing strategies to end violence. To end violence, Indigenous women, families and communities must be able to develop and maintain ways of existing which are distinct from the mainstream. Ongoing resistance to the timely re-establishment of social systems and ways of being distinct to Indigenous people reinforces colonial violence and the social and economic marginalization of Indigenous women. By developing and governing these mechanisms, Indigenous people are best able to overcome all forms of violence, including the ongoing social and economic disadvantage of Indigenous women, addressing the current impacts of this historical discrimination. 4
Recommendations The mechanisms proposed in the Act do not address the specific racialized, sexualized violence that Indigenous women are vulnerable to, nor does it address the marginalization of Indigenous women and girls that is maintained by the legal system. The Act should establish a clear connection to existing culturally relevant supports so that Indigenous women and girls can access these supports. Upon review of the Bill 96, An Act to Enact the Human Trafficking Awareness Day Act, 2017 and the Prevention of and Remedies for Human Trafficking Act, 2017 (the Act), the OFIFC provides the following recommendations: 1. The provision of support contingent upon participation in the legal system will result in unintended negative consequences. Victims who have previous conflict with the law or who have engaged in sex work are criminalized under Canadian law. There is no assurance that the conflation of sex work with trafficking is mitigated through the Act. Requiring victims to rely on police who perpetuate violence 1 experienced by racialized people does not enhance the ability to access the provisions set out in the Act. Emphasis should be placed on access to agents who may present applications for restraining orders separate from police interventions. 2. Exploited individuals may not identify themselves as trafficked but are vulnerable to harms and in need of the protection provided under the Act by a restraining order. By identifying factors for consideration that are grievous, a victim should be able to apply for a restraining order that may not result in an offense of human trafficking as described in the Criminal Code of Canada. 3. The Act contains a factor to consider when granting a restraining order (3) 9. the provision to the victim of alcohol or of a controlled substance, as defined in the Controlled Drugs and Substances Act (Canada), by the respondent, in order to cause or compel the victim to provide labour or services, with no further protections of victims from being prosecuted from possession of controlled substance offenses under Part I of the Controlled Drugs and Substances Act (Canada). This disconnect between policy and prosecution must be addressed. 4. When providing a restraining order, the court should consider, along with the factors listed, circumstances where it may be advisable to withhold information from the respondent of the restraining order, specifically under section (4) (b) which states: 1 The Special Investigations Unit Annual Report for 2015-16 indicates that 13% of the complaints made against police in Ontario are for sexual assault allegations. Of all complaints made to the SIU only 5.9% resulted in charges being laid against offending officers. https://www.siu.on.ca/pdfs/siu_ar_2015-16_eng_ltr_f_online.pdf 5
prohibiting the respondent from attending at or within a specified distance from any place that the victim or specified person attends regularly, which may include a school, shelter, youth facility, place of residence, place of worship, place of employment or any other place where the victim or specified person is reasonably known by the respondent to be; Applicants for a restraining order, or those they may live with, including within a shelter or facility may be made safer by maintaining their locations unknown to the respondent. 5. Violation of a restraining order is a serious incident that requires a strong response. Victims have reported that police do not properly investigate or prosecute reports of restraining orders in place for domestic violence. It is not broadly accepted that restraining orders are an adequate tool to ensure the safety of women at risk of violence, and as a result, evidence of the violation of a restraining order must be able to be brought to the court by a victim or their agent, or another mechanism should be proposed to compel police to enforce restraining orders. 6. The Act must be amended to include penalties for failing to comply with a restraining order, including an escalation of penalty for multiple breaches of an order. 7. The OFIFC is concerned that the tort of human trafficking will be under utilised by victims due to fear of reprisal or retaliation. Adequate protections must exist within or alongside legislation to ensure that those who choose to access the legal system for remedy are able to do so free from risk of harm that may arise from being awarded damages. 8. Establish a mechanism for reporting on the usage of the mechanisms provided by the legislation to examine the efficacy of the tools provided, how they are being utilized and if, when implemented, they are relevant in different circumstances across the province. 6
Conclusion The mechanisms prescribed in the Act are two important tools that should be enacted, with revision, to enhance the safety and provide remedy to women and girls impacted by human trafficking. These provisions do not address the root causes of racialized and sexualized violence experienced by Indigenous women and girls. The necessary provision of wholistic, culturally relevant supports and services are not being enhanced by the legislation as it is written. The Act fails to provide further protections to those who may access these mechanisms. By failing to protect those who may utilize the tort of human trafficking from retaliation and reprisal, it is likely to be under utilized given the violent nature of human trafficking offenses. Additionally, the Act must include a punishment or consequence for people who may violate restraining orders. These issues may be addressed by following the recommendations we have provided. There is little data being collected on the prevalence or impact of human trafficking in Ontario. It is critical to establish culturally-responsive data collection mechanisms to track the use and access of these mechanisms. This data should include selfidentification options for Indigenous women and girls given their increased vulnerability to trafficking. The result of implementing these recommendations will be a more robust piece of legislation with a greater chance of leading to positive, concrete outcomes on the ground for victims of trafficking. 7