Over the next year, 4.9 million individuals are expected to lose their legal status to stay in Canada because of changing immigration programs and criteria. The women and children among them are more susceptible to falling prey to organized criminal groups and becoming victims of enslavement crimes like human trafficking. What complicates such cases is that, if such victims turn to policing stakeholders for help, those stakeholders are currently obligated to detain individuals who are in Canada without legal status and to turn them over to the CBSA for deportation purposes. No ifs, ands or buts.
With no legal precedents or policing policies related to how policing stakeholders are supposed to respond when victims who turn to police for help are individuals without legal status to stay in Canada, detaining such victims who turn to police for help may very well be a violation of the Canadian Charter of Rights and Freedoms, which guarantees protections to every single person in Canada regardless of their legal status. If such victims are unable to turn to policing stakeholders for help without it resulting in them getting detained and eventually deported, they are unlikely to turn to police for help at all, and it will create the conditions for a countless number of women and children to accept enslavement and for the rise of a new underground illegal economy.
High Payments for Bad Immigration
Most Canadians are likely to think of our immigration system in binary terms, “individuals leave their countries and come to Canada” and “individuals are no longer eligible to stay in Canada and have to return back to their countries”. They are likely to think of our immigration process as being entirely rooted in Canada and that our immigration system is impervious to any exploitation. When a process is exploited, then it is entirely the fault of those individuals who arrived here by breaking the rules. However, this oversimplified immigration explanation is an inaccurate portrayal of how the immigration system functions and how there are components to the immigration system that stretch into foreign countries, and it becomes a big problem when those countries struggle with corruption and have weak institutions.
Some parts of Canada’s immigration system are contracted out to private entities and third-party services including visa application centers (VACs) or passport processing and immigration consultants, and they operate overseas. VACs are private companies that Canada has partnered with to operate centers to facilitate the application of visa permits, to collect biometric information and provide other application services. Passport processing sometimes involves third-party contractors that assist in various operational aspects including application intake, processing, and distribution. Immigration consultants operate as private entities, who are required to be accredited, to assist individuals with their applications.
As these activities take place outside of Canada, the Canadian government has limited legal jurisdiction in other countries and enforcement comes down to local oversight. Any exploitive practices would need to be addressed with local oversight, and it is not uncommon in countries that struggle with corruption and have weak institutions for some elements of police to be involved. Sometimes if aspiring Canadian are brave enough and do reach out to local oversight those complaints may be disregarded. Other times those aspiring Canadians may end up being victims of violent attacks for reaching to local oversight. Nor is it uncommon for police to be complicit, or the benefactors of bribes stemming from organized criminal groups that have managed inject themselves into this process and are carrying out extortive criminal activities.
What further complicates the challenge is the reality that individuals who are working for these private entities and third-party services may be connected with organized criminal elements outside the workplace, who they may pass on information to. Then it is not uncommon for unregulated intermediaries to go and make false promises for expediting services, to make unfulfillable promises like guaranteed approvals and offer special treatments, or for aspiring Canadians to be threatened if they can see through the lies and call out the criminals for them. Most aspiring Canadians are likely to relent and pay the demands because they are afraid, institutions and police are incapable of protecting them or are weak and corrupt, and they are desperate for their new life.
Some aspiring Canadians who are successful at obtaining temporary work permits to come to Canada report having had to “pay” (extortion) between $10,000 to $40,000 USD to bad actors. For the large sums of money that these individuals pay, they have no possibility of earning nor saving that kind of money for the few years that they are going to be working in Canada. And by the time their work permit has these aspiring Canadians have likely lost more money than they are able to earn and save in their country of origin.
Extortion is not limited to the process of obtaining a temporary work permit. It is a problem that also troubles the process of obtaining a study permit, and some aspiring Canadian learners who want to study in Canada are being extorted for similar sums of money. Organizations in Canada that work with or serve temporary workers and international students are aware of the exploitive practices of this “open secret”, and many of their front-line workers know such victims. Like those victims, however, these organizations are also powerless to put a stop to those exploitive practices.
So, then comes the decision that no aspiring Canadians hopes will come, their visas do not get renewed like they had dreamed. So exploitation during the process for obtaining their visa results in a large cloud of debt hanging over their head, and they are financially worse off than before they had come to Canada. Do they leave Canada voluntarily, because it is almost certain that they will be unable to afford to go through the “process” again and because they are still in major debt? Or do they break the “rules” and overstay their permits in the hopes that they will be able to break even, accepting that they will get paid less than minimum wage and work years before that happens, and that everyone will be able to walk all over them because of their lack of legal status? I know that if I was in their position, I would absolutely break the “rules”, because if I cannot afford to go through the “process” again, then that is the same as getting banned from returning to Canada, even if it means I have to surrender my rights and freedoms.
Enslavement of those without Legal Status.
Policing stakeholders openly discuss how getting victims of human trafficking to come forward and to cooperate with police to secure criminal convictions against their victimizers is practically impossible. Imagine how much more difficult it is to get victims to come forward when those victims are without legal status to stay in Canada. For some of those victims, their exploitation can be the result of being promised a higher-earning opportunity through sex work and protection by criminals as long as they work for them. Then those same criminals turn on their victims and begin to take all their money, using the victims lack of legal status to exploit them. Being able to leverage an individual’s lack of status to coerce them is far more effective than using explicit photos or videos as blackmail, because those individuals cannot turn to the police as their detainment and deportation would take priority.
One relevant report published by The United Nations Office on Drugs and Crime (UNODC) is their Global Report on Trafficking in Persons 2024, and it provides some context around human trafficking, both globally and regionally. For Canada, one of the data tables breaks down the number of “detected victims” of trafficking by sex and age, from 2019 to 2023. And although the “detected victims” are likely small in comparison to the scale of the problem, the data indicates that women and children made up over 90% of the trafficking victims and around 30% of those victims were children.
All we need to know about the potential problems on the horizon related to women and children who lose their legal status to stay in Canada can be summed up by the key points in that UNODC’s trafficking report. Child victims are increasing. Women and children make up the majority of trafficking victims that are detected. Most of the trafficking of women and children is perpetrated by organized criminal groups. Criminal justice policies and responses are lagging.
In Canada, as it stands, the police are obligated to detain and hand those without legal status over to the CBSA, regardless of if they are victims of human trafficking, who then proceed to initiate the deportation process. So, there is no distinction between a police interaction that starts as a result of victims without legal status who reach out to the police for help and when a person without legal status breaks the law and the police get involved. Not only is that approach to policing and public safety a disaster recipe, but it may also actually constitute as being a violation of Canada’s Charter of Rights and Freedom.
The Charter Argument.
What makes the Canadian Charter of Rights and Freedoms, 1982 (Charter) one of the single-most effective guarantors of right and freedoms is that the legislation guarantees fundamental rights and freedoms to everyone in Canada, not limiting them to citizens or permanent residents. The Charter was the result of then-Prime Minister Pierre-Elliot Trudeau wanting to guarantee human rights beyond the federal statute of the time (Canadian Bill of Rights, 1960), which had limitations to it because it was not constitutional law and thus incapable of overriding conflicting provincial laws. The final product did not differentiate across lines of difference, it guaranteed fundamental rights and freedoms to every person who found themselves in Canada.
For millions of individuals who are set to lose their legal status to stay in Canada, those that may end up falling victim to crimes of enslavement like human trafficking, the current police approach to responding to such victims when they turn to police for help may be a violation of Section 7 and Section 15 of The Charter.
“Section 7 – Life, Liberty, and Security of Person”, stipulates, “7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
What makes Section 7 relevant is that it guarantees the life, liberty, and personal security of all people in Canada, and it also requires that governments respect the basic principles of justice whenever they intrude on those rights. Section 7 also requires government to take reasonable steps to protect people in Canada from harm, and exploitation and victimization.
“Section 15 – Equality before and under law and equal protection and benefit of law”, stipulates, “15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
What makes Section 15 of the Charter relevant is that it makes it clear that every individual in Canada – regardless of race, religion, national or ethnic origin, colour, religion, sex, age or mental or physical disability – is to be treated with the same respect, dignity, and consideration. This means that governments must not discriminate on any of these grounds in their laws or programs. The Supreme Court of Canada has also ruled that Section 15 also protects equality on the basis of other characteristics and that the purpose of Section 15 is to protect those groups who suffer social, political, and legal disadvantage in society.
For the nearly 5 million individuals who are set to lose their legal status to stay in Canada, The Charter accounts for them when it offers protection against the exploitation and abuse of any person in Canada. Although individuals who are without legal status to stay in Canada may face legal repercussions for overstaying their visas, their fundamental human rights under Canadian law remain protected. Yet, across all of Canada’s provinces, there is uniformity with current policing policies and approaches related to police interactions with individuals without legal status to stay in Canada, there is no distinction between interacting with a victim who reaches out to police for help and someone who commits a crime and the police get involved. So, those policies and approaches fail live up to The Charter’s standard of protecting all individuals on Canadian soil. Nor do they live up to the other international agreements that Canada happens to be a signatory to like the Universal Declaration of Human Rights and the UN Protocol to Prevent, Supress and Punish Trafficking in Persons.
Coming Up
This multi-part series will also aim to examine the dynamics of the situation from the perspective of different stakeholders including different levels of government, various policing and public safety stakeholders, provincial and federal political parties, and different organizations that operate in this unique intersection between immigration, policing, and human rights, and it will explore potential solutions to account for the technicalities that have cost individuals with great Canadian potential the opportunity to call Canada their forever home.
Preliminary discussions with some stakeholders indicate that this policy intersection has never been examined and that there may be a legal policy gap that requires clearer protections to ensure that such victims feel safe turning to the police for help, and that some safeguards against initiating the deportation of victims may be required. Whether or not there ends up being agreement on the necessary policing approach regarding victims who are without legal status to stay in Canada and who reach out to the police for help is something that remains to be seen.