Status of Women Committee on Nov. 7th, 2006

[The Chair, Liberal, Judy Sgro]

Ms. Tie, I apologize for keeping you waiting. Welcome. We very much appreciate you being here.

Ms. Tie is a lawyer and she represents the National Association of Women and the Law. Thank you very much for coming. I will turn the floor over to you for a brief presentation, followed by questions and comments from our members.

[Chantal Tie, Lawyer, National Association of Women and the Law]

Thank you very much.

First, thank you very much for inviting us this morning. We appreciate the opportunity to appear before you.

The National Association of Women and the Law is a feminist, non-profit organization, and we've been working for women's equality rights since 1974. We're governed by a regionally representative steering committee, which is fully, directly elected by our membership. We work through law reform to achieve substantive equality and the realization of human rights for women and girls in Canada.

I'm a professor at the University of Ottawa law school, where I teach immigration and refugee law, and I chair the NAWL immigration working group at the present time.

I understand I have about ten minutes to make a presentation and then be open to questions.

In NAWL's opinion, and I think it's universally recognized, trafficking is a multi-dimensional problem. We are concerned, however, that of the three potential areas of focus that are outlined in the Palermo declaration, the government has so far fairly narrowly viewed their role as one of enforcement and criminalization of the problem.

NAWL is much more concerned at the present time with the human rights perspective of the victims of trafficking, and we have concerns that the current emphasis on prosecution is in fact indicative of an insufficient emphasis on human rights protection.

Trafficking is both a national and an international or global problem. We have an internal trafficking problem, principally the trafficking of aboriginal girls and women within Canada. It's also an international problem, but the common thread and the causes of it are poverty and inequality for women throughout. These are the root causes that make women so vulnerable to being both trafficked and exploited both in Canada and into Canada. Because of this, trafficked women need both protection and assistance. We need to develop a comprehensive system of supports and protection for the victims themselves.

The difficulty the criminal prosecution raises is that it ironically increases the vulnerability of the trafficked people themselves, because in many of the instances they're working in sex trade industries, and the criminal nature of the organizations that control the industries themselves put the workers themselves, the trafficked people, at greater risk, beyond the reach of important civil society organizations and governments that could protect their human rights. It increases the stigmatization that trafficked women already experience. It makes it that much harder for them to access protection and in many ways serves to re-victimize the victims of trafficking.

We currently have prostitution-related offences, documents offences, and illegal migration offences that have those consequences for trafficked women. Indeed, the traffickers themselves use the threat of exposure, either criminal or immigration exposure, as a means to enforce the control over their victims that they already have. So, ironically, the greater the control and enforcement mechanisms, the greater the prosecutions, the harder it is going to be to protect the victims themselves.

Importantly, the way to get around this is to prosecute the traffickers and not the trafficked persons themselves. They should be immune from prosecution. This removes a tool from the traffickers, it does not target the victims, and it does not allow the abuses to continue.

Both in Canada and into Canada, major contributing causes are poverty, abuse, social isolation, drug and alcohol problems within Canada, and gender inequality itself, which is manifest in an unequal distribution of power, money, and educational resources. The notion of consent and the distinctions made between trafficked and smuggled people are extremely tenuous categories.

We urge the government to look seriously at trafficking from a protection perspective and not just as enforcement. This means a number of things—both legislative and social supports for the people here in Canada.

There must be in place a regime of protection for the victims. When dealing with global trafficking, the current protection mechanisms are woefully inadequate, and I can talk about the pre-removal risk assessments. The PRRA in Immigration has an extremely low success rate. Refugee claims are sometimes not available to trafficked women, because once a removal order has been made, you have no access to the refugee division. If women receive no appropriate legal advice prior to Immigration's enforcement, they would have no access to the refugee division. And it's very problematic as well because of what qualifies as trafficking and because of notions of consent, even when consent is obtained fraudulently.

Humanitarian and compassionate applications are entirely inadequate. There is no stay of removal pending consideration of an H and C application. There are fees adhering to H and C applications that are beyond the resources of these women in many cases. The women would rarely qualify under the H and C criteria, sometimes for reasons related directly to their being trafficked, such as involvement in criminal activities, willingly or unwillingly, or inability to establish oneself within Canada if one has low skills. There is no access to legal advice for many of these types of applications. Some jurisdictions, such as British Columbia, that have decimated their legal aid schemes recently are particular cases in point.

There has to be training and sensitivity for front-line workers who come in direct contact with women who are or could be trafficked; that means police, immigration officials, immigration settlement workers, shelters, and women's groups. In particular, police and enforcement officers with Immigration need to be trained to view trafficking victims from a human rights and gender perspective and not from an enforcement perspective. They need to be aware of potential community links and legal resources, and they need to consider designating specifically trained immigration officers, hopefully women, who have the skills, training, and sensitivity to deal with trafficking cases.

It's of particular concern to us that Status of Women Canada has recently been cut, because it was taking the lead in this area in terms of social supports for female trafficking victims, funding national consultations through the CCR, and other important activities. So if you're looking at addressing trafficking, the cuts to Status of Women Canada are directly relevant to combatting the problem.

There's a specific recommendation as well: paragraph 245(f) of the regulations under the Immigration and Refugee Protection Act specifically provides a heightened risk of detention if there's a possibility you could be under the control of traffickers or organized crime. So what we have here is a provision that effectively mandates the incarceration of trafficked persons. This needs to be reviewed and changed.

There needs to be adequate funding for organizations that support trafficked persons, so they can provide appropriate gender-sensitive counselling and alternative employment assistance and upgrading to counter the inequality that leads these persons into being trafficked in the first place. These women and girls need real protection and real alternatives.

Then, as I have said, we need much more than a three-month temporary resident permit. That is an important first step, and we welcomed the announcement in May of the temporary resident permit, but it does not go far enough. There are lots of questions that need to be asked about that permit. We need to know specifically, how is the department defining real victims of trafficking? What does that mean? Does it include women who are in forced bondage, even if they may have thought they were consenting in the first place? We understand only one visa has been issued under the program. Have other applications been considered and refused? What is the channel and the path to long-term permanent status, not just temporary status? And what other supports and protection are being provided to those women? Is availability strictly contingent upon cooperation? We do not agree it should be. Those are some important questions that need to be asked.

Obviously, in the long term we clearly need to work for aboriginal women, for the improvement of options and opportunities within their communities. We have to address the racism and discrimination that underlies their social condition. In the international arena, we have to put more development resources into supporting efforts for gender equality and elimination of poverty. We need to support specific initiatives aimed at mobilizing women's communities to combat trafficking in their own communities. There are some very good examples of that. We need to strengthen women's legal, social, and economic positions worldwide. This is a global problem. And we need to work with trade and aid and make sure that trade and aid are subject to specific conditions that respect and promote women's equality.

I'd like to finish by making some comments about our military and peacekeeping obligations. Trafficking is also linked to civil war and conflict. Women are the main victims in many of those conflict areas. One of the major causes of the mass movement of people is armed conflict. Women are fleeing without family protection and they're left to fend for themselves. They're clearly targets of criminal traffickers.

Major assistance to trafficked women in conflict zones is required. Canada also needs to ensure that our troops serving as peacekeepers are protecting women and not using the services of trafficked women. We need to review our training and policies in this regard. We need to identify the gaps. We need to ensure that other peacekeeping forces we are operating with or that are operating under us are similarly intolerant of the practice.

It's widely known that UN peacekeeping troops are a magnet for traffickers. Those troops are supposed to be protecting human rights, not creating and participating in the violation of human rights. Military personnel contributing to trafficking or using the services of trafficked people must be brought to justice, so the climate of impunity overseas doesn't continue.

Thank you.

[The Chair, Liberal, Judy Sgro]

Thank you very much for an excellent presentation. You managed to cover so many different parts of this issue in that short ten minutes.

Thank you so very much.

Ms. Minna, first round, seven minutes.

[Maria Minna, Liberal, Beaches—East York, ON]

Thank you.

Yes, me too. That was a terrific presentation. You put in a tremendous amount of stuff.

I agree with you on a whole lot of things. I'm going to tell you some of the things I agree with and what we should do about them. Then I'll ask you questions on them, and then you can comment.

One of them is the root cause. Economics is a major cause, there's no question. The economic conditions of women, whether in Canada or abroad or in the developing world, the dire poverty that women live in, and their inability to access proper economic stability of any kind are major issues. In fact, this committee was to be looking at economic security for women before we started on this one. We thought we would do them both together. And it makes sense to do both together. Eventually, we'll get to that. I agree with you 100%. The root cause is economic, a vulnerability that women have.

I wanted to ask you a couple of things, some of which you alluded to. You said that the Status of Women was taking the lead in this area and was funding consultations. Other organizations have appeared before us, and advocacy groups have said the same thing--not on this, but that they themselves were doing some work.

Can you tell us a little more clearly how the cuts to Status of Women and the change of criteria will affect this kind of work, both from the Status of Women Canada and other NGOs on the ground?

[Chantal Tie]

I think Status of Women Canada would be able to tell you more specifically about how the cuts will affect it. All I can do is look at the work they've done to date and say that they are doing some of the most groundbreaking work. They've supported many of the NGOs that are now able to work in the field.

This whole round of support they provided to the Canadian Council for Refugees, and I participated on part of the national consultations, was pretty much groundbreaking. It was very important to get to all the service agencies to find out their experience on the ground and identify the areas they needed help with in order to combat trafficking. If those resources had not been there, I'm not sure who would have been able to do it.

My understanding is that the protection agenda has not been in the forefront with the government. Status of Women has been one of the few voices that has been looking at it from the perspective of the victims. It has promoted that view, both in the intergovernmental working group and by supporting the civil society organizations that do that work.

I have very grave concerns about the cuts to Status of Women and their ability to continue to work in this area, in juggling all their other mandates.

As I said, I think that's an indication. We really think this is not just a criminal enforcement agenda attacking trafficking. It is counterproductive not to deal with supporting and helping the victims. I think that's really an important point.

[Maria Minna, Liberal, Beaches—East York, ON]

Thank you.

I agree with you with respect to supporting the victims.

I want to go to the issue of immigration, which you mentioned. You referred to PRA, and the H and C not being an adequate tool. Of course, they can't even apply for PRA, I don't think, unless it's under the IRB. And they're not really qualified under the IRB.

I was suggesting something, and I need to know whether you think this would work. Instead of the three-month permit, which means they then need to leave after, what about giving an actual work permit--normally one to three years, I think--that allows people to then apply for landing, as opposed to the IRB process. The IRB process suggests that they're refugees, which then of course goes back to the Geneva...and then you have to deal with H and C. It gets complicated.

I want to know what you think of the work permit route.

[Chantal Tie]

There are a number of options open to the government. One option is to actually strengthen the PRA process and provide specific policy guidelines that trafficked persons do qualify as people who are at risk. That could be done.

We could also provide guidelines under the “person in need of protection” possibilities. That requires, as you said, going before the Immigration and Refugee Board that now has dual jurisdiction over refugee claims and persons in need of protection under section 107. That's a possibility.

I think, though, that the factual determination you need to make in terms of a trafficked person might not require the whole complexity of the Immigration and Refugee Board. Work permits are clearly one possibility.

Certainly, I think the three-month temporary resident permit is just not adequate. I think a program with specific guidelines that transparently sets out who's eligible for the work permit and under what basis, and the possibility that it could lead to permanent status in Canada would be very, very helpful.

One of the problems for trafficked persons, and particularly women, that the settlement agencies have documented is the social stigma attached with being a victim of trafficking. Return to their home country means not only an increased re-victimization and re-stigmatization because of being trafficked; it also sends them back to the conditions that created the trafficking in the first place. There's a dual problem, which in fact makes it worse to return the women. Ultimately, the women need to be given a real choice as to whether they are returned or not.

I think a work permit and some type of status that could eventually lead to permanent status in Canada is the way to protect the victims.

[The Chair, Liberal, Judy Sgro]

Thank you.

Ms. Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Madam Chair.

Thank you for agreeing to appear before the committee today.

You spoke about human trafficking in the context of war. That's a very interesting theme, one which we have not talked about a great deal thus far. In my opinion, the witnesses who appeared previously did not have enough information about this. You maintain that whether we like it or not, wars create a climate conducive to violating human rights. Indeed, war as such is a violation of human rights.

Can you tell me what kind of human trafficking occurs in times of war, when countries are destabilized? I'm especially interested in Afghanistan, since safeguarding women's rights was the stated reason for sending troops to this country. You say that wars, including the war in Afghanistan, represented fertile ground for trafficking in women, a clear violation of women's rights.

[Chantal Tie]

I do understand your question, but I will answer it in English.

I'd like to direct you.... There's an excellent report that Human Rights Watch prepared about the war in Bosnia and Herzegovina that I think sets out very clearly for you the conditions that civil conflict creates that make women particularly vulnerable.

What was interesting in Bosnia and Herzegovina and the UN troops is that the situation of civil war itself created certain conditions, but the massive presence of foreign troops caused the traffickers to bring in women from other areas to service the UN peacekeepers. There was documented evidence of a level of tolerance in the military for the use of these brothels with trafficked women in them, as well as documented evidence concerning the contractors that went in on the heels of the reconstruction effort--mainly American contractors--who also were using and purchasing the services of women, and in some cases were actually purchasing the women themselves for their own use while they were there.

There were a number of recommendations made. It's a November 2002 Human Rights Watch report. I can provide the site for it if you like. It's a very good example.

What is useful about the report is that it provides very specific recommendations to the U.S. government on the impunity with which their personnel, both civilian and military, operate overseas, because they cannot be prosecuted in the United States for using the services. It sets out the actions that both the U.S. and the UN need to take.

In the wake of Bosnia and Herzegovina, there were some efforts made and there have been some improvements. But I don't know the extent of the review of the Canadian military that's been done on this issue. I think it bears asking some questions about the protocols and policies that we have in place that permit this type of crime to continue. It's a sense that it's getting at the customers.

[Maria Mourani, Bloc, Ahuntsic, QC]

So then, from what you're saying, demand created a supply of trafficked women. The presence of the military in Bosnia -- and we won't get into what troops were doing in that country -- generated a demand situation.

[Chantal Tie]

Yes.

[Maria Mourani, Bloc, Ahuntsic, QC]

A demand for trafficked women.

[Chantal Tie]

That's correct.

[Maria Mourani, Bloc, Ahuntsic, QC]

Do you believe a similar situation exists in Afghanistan? Do you have any information on that subject?

[Chantal Tie]

I have no information whatsoever about Afghanistan.

[Maria Mourani, Bloc, Ahuntsic, QC]

And is that because no investigation or research has been done?

[Chantal Tie]

I don't know. I just don't know. I'm not familiar with any, but I could certainly get back to you if I can find....

[Maria Mourani, Bloc, Ahuntsic, QC]

Did the report's recommendations come about as a result of changes made by the US military? Is that in fact what you're saying?

[Chantal Tie]

Not exactly.

[Maria Mourani, Bloc, Ahuntsic, QC]

So nothing was done then?

[Chantal Tie]

No, I don't think so.

[Maria Mourani, Bloc, Ahuntsic, QC]

In your opinion, is what happened in Bosnia typical of what happens in general during times of war, or is each war different?

[Chantal Tie]

I think what's happened is that women's human rights violations have very rarely played an important part in any type of research or investigation. The Bosnia and Herzegovina study was one of the first done. I'd be very surprised if it was not typical of what happens when you have large concentrations of soldiers in particular areas. I would be very surprised if that was not typical.

[Maria Mourani, Bloc, Ahuntsic, QC]

But it's the only study of its kind ever done.