The Canadian Human Rights Commission (The CHRC) is unable to accept human rights complaints from people who are without legal status to be in Canada. For such individuals, if any of their human rights, those enshrined under Canadian law, are violated, they are unlikely to be able to file a human rights complaint if they cannot afford to retain an immigration lawyer. So, this legal “blind spot” is not just the result of a lack of money to be made, but how public-serving oversight bodies have been created, restricting who can access human rights-related services.
The CHRC has advocated for changes to the Canadian Human Rights Act (The Act), which sets out who they can accept and investigate complaints from, excluding individuals without legal status to be in Canada even though they are accounted for in the Charter of Rights and Freedoms. Under Section 40(5)(a) of the Act, it states that “no complaint in relation to a discriminatory practice may be dealt with by The CHRC under this part unless the act or omission that constitutes the practice…occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, temporarily absent from Canada, entitled to return to Canada.” This is an example of the structural discrimination in policy. As a result, individuals without legal status to be in Canada are ineligible to file complaints with the CHRC.
To the CHRC’s credit, it has long advocated for the repeal or amendment of this provision to increase access to human rights justice for all people in Canada, in line with the principles responsible for the Charter of Rights and Freedoms. So, there are major implications regarding the various threats that migrants are facing in Canada because there are significant barriers preventing them from obtaining policing services, having their matters adjudicated by federal and provincial courts, and accessing other public-serving bodies that most Canadians take for granted, and it has created for a major public safety issue.
Revisiting A Previous Article
In a previous article, “Immigration Realities: Canada through Migrant Eyes”, what came as shock during my participation at a Canada-wide gathering of more than 400 different organizations that work with and serve refugees and migrants, was how organized criminal groups (including the Hells Angels) have managed to embed themselves into the immigration ecosystem (internationally and domestically). Three examples stuck out:
The first example saw a migrant who landed in Western Canada receive a message over a chat app that gave them specific instructions to arrive to their “workplace” in Quebec. They were told to take a Via Rail train to Montreal, and after arriving to Montreal they were told to take an Uber to a place 1.5 hours away from the train station. Upon arriving to the “new” workplace, they were told that they would only receive 20% of their agreed upon salary in Canadian Dollars and the other 80% would be paid in Mexican Pesos, to their family in Mexico, by someone who would be visiting their family in Mexico. Such arrangements were not said to be exceptions to the rule in places where organized criminal groups have embedded themselves.
The second example saw migrants turn to the RCMP (who were contracted for policing responsibilities in the area) to report kidnapping and extortion, and how the RCMP turned away those victims and suggested that they reach out to a different level of policing for support. In the end, all three levels of policing (municipal, provincial, federal) would offer similar responses for the victims by stating that their complaints were outside their scope and jurisdiction.
The third example saw organizations establishing early warning systems and enhanced safety measures for employees who had been targets of intimidation by organized criminal elements. As a result, out-of-city visits now require constant communication between staff, and organizations also collect identifying information on suspicious persons and vehicles and share that information with other local organizations due to not being able to rely on law enforcement.
Most of the participants at the three-day immigration summit had unfavorable views of police, and there were suggestions that insinuated Canada’s police were systemically racist and underprioritizing migrant-related matters. Even though such suggestions may have some truth, it is possible the turning away of such victims had something to do with the existence of high-level policing investigations and a need to preserve such investigations or perhaps these were cases where police felt there was a low likelihood of securing a criminal conviction against organized criminal elements and decided they were not worth investigating.
Both thoughts are disturbing, however, in that individuals who were victims of crime in Canada could get overlooked after turning to law enforcement. However, they also offer up deeper considerations into the world of policing, one that often revolves around police statements like, “we are unable to speak to the details of any specific case, or any potential criminal investigations”.
Canada’s Most Underprivileged and Disadvantaged
Based on preliminary discussions with a few municipal police officers thus far, it was explained that if a municipal police officer ever happens to deal with someone that they identify as being without legal status to be in Canada, then they must detain that person and notify the CBSA (police of jurisdiction). The reason given for that response was that anything having to do with immigration fell outside the jurisdiction of municipal policing responsibilities, and municipal police officers did not have room to apply discretion when dealing with victims of crime who were without legal status to be in Canada.
Policing and public safety stakeholders in Canada have gone on record stating that while police-reported incidents of human trafficking increase every year, the number of human trafficking related convictions remains relatively low. More so, they have stated how assessing the extent of human trafficking in Canada is difficult due to its clandestine nature and the reluctance of victims and witnesses to come forward to law enforcement, as well as challenges in identifying victims. Most cases of human trafficking are never reported to police due to threats from traffickers, fear, shame, and mistrust of authorities. So, all the current available data provides only a partial representation of the scope and scale of human trafficking in Canada, and practically none on migrants and individuals without legal status to be in Canada.
Steps have been taken to better equip law enforcement and prosecutors on the scope, scale and sensitivities around human trafficking to better identify cases and enhance the consistency in prosecution. As it pertains to migrants, Canada has also acted to better protect such individuals by investing $3.4 million over two years to establish, on a pilot basis, a migrant worker support network dealing with potential mistreatment or abuse, and even to propose recommendations that account for the migrant experience. Additional successes include the Government issuing 146 (January 2016-December 2018) temporary resident permits to victims of human trafficking and their dependents, but there are limitations. Getting migrant victims to turn to police for help and to want to help with criminal prosecutions requires establishing trust and is something money cannot buy.
Seeing how the Canadian Human Rights Commission is prohibited from accepting human rights complaints from individuals without legal status to be in Canada, the police response further complicates the issue of human rights as it pertains to migrants and others without legal status. Migrants and individuals without legal status who lack the financial means to retain a lawyer for a matter related to human rights, may find it worth connecting with civil rights organizations to see if they have experience dealing with such matters.
Canada’s approach to human trafficking has been guided by the United Nations Convention against Transnational Organized Crime and its supplementing Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and has been organized around four broad pillars (4Ps): the prevention of trafficking; the protection of victims; the prosecution of offenders; and working in partnership with others. There are more intersections to a complex issue than past policies have been capable of accounting for, which this series may succeed in highlighting.
In Comparison
Compared to the rest of the world, Canada does immigration better than practically every other country. Being better than others, however, is a low standard when being viewed as “better” overshadows bettering immigration-related gaps. Canada may be limited in what it can do about immigration-related exploitation that occurs outside of Canada, but we are in full control on how we respond to the exploitation of those who our current laws overlook and disregard.
When migrants lose their legal status to stay in Canada, that process is more complicated than is understood by people or has been described in the media. All of it can be chalked up to complex immigration processes, systemic flaws, and socio-economic factors. Additionally, factors related to language barriers, social isolation and the inability to access public services, and these are the vulnerabilities that traffickers aim to exploit. For those Canadians who are not that far removed from their “first step off the boat and onto Canadian soil”, or who have heard first-hand accounts about those “first steps” from family, today’s victims could be “us”.
