Library of Parliament Research Publications
41st Parliament, 1st Session
Legislative Summary of Bill C-10: 10 Amendments to the Immigration and Refugee Protection Act (Vulnerable Foreign Workers) [Bill C-10, Part 5, Clauses 205–208 (Formerly Bill C-56)] *
Publication Number 41-1-C10E PDF 1.2 MB, 158 pages
Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
- 10 Amendments to the Immigration and Refugee Protection Act (Vulnerable Foreign Workers) [Bill C-10, Part 5, Clauses 205–208 (Formerly Bill C-56)]
- 10.1 Background
- 10.2 Description and Analysis
- 10.2.1 Protecting Foreign Nationals from Exploitation
- 10.2.2 Public Health
- 10.2.3 Consequential Amendments
- 10.2.1 Protecting Foreign Nationals from Exploitation
- 10.1 Background
10 Amendments to the Immigration and Refugee Protection Act (Vulnerable Foreign Workers) [Bill C-10, Part 5, Clauses 205–208
(Formerly Bill C-56)]
Clauses 205–208 of Bill C-10 give immigration officers discretion to refuse to authorize foreign nationals to work in Canada if, in the opinion of the officers, the foreign nationals are at risk of being victims of exploitation or abuse.
Earlier versions of the bill were introduced on four occasions.
- The first was introduced in May 2007 during the 1st Session of the 39th Parliament as Bill C‑57 and died on the Order Paper when Parliament was prorogued in September 2007.
- The second was introduced in the fall of 2007 during the 2nd Session of the 39th Parliament as Bill C‑17 and was referred to the House of Commons Standing Committee on Citizenship and Immigration, which considered it on 30 January 2008 but did not report back to the House before the end of the session.
- The third was introduced in June 2009 during the 2nd Session of the 40th Parliament as Bill C‑45 and died on the Order Paper at the end of the session in December 2009.
- The fourth was introduced in November 2010 during the 3rd Session of the 40th Parliament as Bill C-56 and died on the Order Paper at the dissolution of Parliament in March 2011.
The present Part 5 of Bill C‑10 is identical in substance to the earlier versions.1
Sections 279.01 to 279.04 of the Code set out three prohibitions in relation to trafficking in persons.
- The first (section 279.01, and section 279.011 for persons under the age of 18 years) is a global prohibition on trafficking in persons, defined as recruiting, transporting, transferring, receiving, holding, concealing or harbouring a person or exercising control, direction or influence over the movements of a person, for the purpose of exploiting them.4 Key to this definition is the fact that trafficking in persons is considered a criminal offence even if it occurs entirely within the country, without movement across an international border. Any action in which a person is moved or concealed and is forced to provide or offer to provide labour, a service, or an organ or tissue is prohibited.
- Section 279.02 prohibits a person from benefiting economically from trafficking and carries a maximum penalty of 10 years’ imprisonment. It targets in particular those who harbour a trafficked person for remuneration.
- Section 279.03 outlaws the withholding or destroying of identity, immigration, or travel documents to facilitate trafficking in persons, and carries a maximum penalty of 5 years’ imprisonment.
A number of generic provisions in the Criminal Code are also used to combat trafficking in persons by targeting specific forms of exploitation and abuse that are inherent in trafficking. These include fraudulent documentation-related offences; prostitution-related offences; causing physical harm; abduction and confinement; intimidation; conspiracy; and organized crime.
The IRPA also addresses cross-border trafficking in persons.
- Under section 118 of the IRPA, anyone who knowingly organizes one or more persons to come into Canada by means of abduction, fraud, deception, or the use or threat of force or coercion is guilty of human trafficking. This offence includes the recruitment, transportation, receipt, and harbouring of such persons, and the maximum sentence is life imprisonment.
- Section 117 of the IRPA deals with smuggling. It states that it is illegal to knowingly organize the entry into Canada of one or more persons who do not have a valid travel document. The maximum sentence for organizing the illegal entry of fewer than 10 people is 14 years’ imprisonment, while that for organizing the illegal entry of 10 or more people is life imprisonment.
- Sections 122 and 123 create the additional offence of using travel documents to contravene the IRPA, as well as the selling or buying of such travel documents. The maximum sentence for these offences is 14 years’ imprisonment.
In May 2006, the Department of Citizenship and Immigration announced a new policy to provide temporary resident permits specifically for trafficked persons. This policy was updated in June 2007.5 Working within the existing legislative framework, immigration officers now have the ability to issue to trafficked persons temporary resident permits lasting up to 180 days. Recipients of such permits are exempt from the processing fee usually charged, may request a work permit and are eligible to receive health service benefits under the Interim Federal Health Program.
This approach has the following objectives:
- to provide victims of trafficking in persons with time to consider their options (such as returning home or assisting in the investigation of the smugglers or traffickers or in criminal proceedings against them);
- to allow them to recover from physical or mental trauma;
- to allow them to escape the influence of the smugglers or traffickers;
- to facilitate their participation in an investigation or prosecution; and
- for any other purpose the officer may find relevant.
There is no obligation for the trafficked person to assist with an investigation in exchange for a temporary resident permit.
A trafficked person may also be granted a permit for a longer period or a subsequent temporary resident permit once an immigration officer examines the relevant factors, such as whether it is possible for the individual to return and re-establish a life – under reasonably safe conditions – in his or her country of origin or last permanent residence, and whether the individual is needed and willing to assist the authorities in an investigation or a prosecution. After a certain period, it may be possible for the trafficked person to obtain permanent resident status.
A significant component of the Canadian approach to trafficking in persons is the federal Interdepartmental Working Group on Trafficking in Persons, which is co‑chaired by representatives from the departments of Justice and Public Safety and consists of a total of 17 federal departments and agencies. Its mission is to coordinate federal efforts to address trafficking in persons and to develop a federal strategy, in keeping with Canada’s international commitments. The working group reviews existing laws, policies and programs that may have an impact on trafficking with a view to identifying best practices and areas for improvement.6
Since September 2005, the Royal Canadian Mounted Police has headed the Human Trafficking National Coordination Centre. The centre is housed at the Immigration and Passport Branch and its role is to provide assistance to field investigators and develop education and awareness campaigns. In March 2010, the centre published a study conducted between 2005 and 2009 in a report entitled Human Trafficking in Canada. One of the first comments in the report is that human trafficking is a growing sector of organized crime worldwide.7
Two parliamentary committees have examined the issue of trafficking in persons in Canada.
In December 2006, the Subcommittee on Solicitation Laws of the House of Commons Standing Committee on Justice and Human Rights released its report, entitled The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws.8 In this broad study of Canada’s laws on prostitution, the subcommittee emphasized the fact that those who traffic in persons must be effectively prosecuted and that law enforcement officials must be provided with adequate resources and training, while victims must be provided with appropriate assistance and services.
In February 2007, the House of Commons Standing Committee on the Status of Women released its report, entitled Turning Outrage Into Action to Address Trafficking for the Purpose of Sexual Exploitation in Canada.9 This report highlighted the “three Ps” approach: protection of victims, prosecution of clients and traffickers, and prevention. The report’s recommendations focused on prevention measures, in particular the development of a strategy to address poverty (with particular emphasis on Aboriginal peoples), removing barriers to immigration, and raising the public’s awareness of the risks of being trafficked.
The committee also emphasized the importance of improving the protection of victims by providing them with support services and programs, including safe interim housing and access to counselling and legal advice, and by revising the temporary resident permit guidelines so that victims can apply for a work permit.
To coordinate Canada’s efforts, the committee proposed the creation of a Canadian Counter-Trafficking Office, through which stakeholders could share expertise and best practices to prevent trafficking, protect victims, and successfully prosecute those who exploit victims. The committee also proposed the establishment of a national rapporteur mandated to collect and analyze human trafficking data and report these annually to Parliament.
When announcing – along with Joy Smith, Member of Parliament for Kildonan–St. Paul – the introduction of Bill C-56 on behalf of the Minister of Citizenship, Immigration and Multiculturalism, the Honourable Rona Ambrose, Minister of Public Works and Government Services Canada and Minister for the Status of Women, said that the bill should help to preclude situations in which women might be exploited or become victims of human trafficking:
This legislation will introduce important legislative changes to help close the doors to the dangerous victimization of girls and women, and we urge Parliament to join us in this serious matter and support the bill. As Canadians, we believe women in all communities should be treated with the full respect and dignity they deserve and oppose situations in which women and girls face violence, abuse or exploitation.10
These situations include the ones experienced by foreign exotic dancers, who may apply for temporary work permits to alleviate a temporary shortage in the Canadian labour market.11 The terms on which exotic dancer visas are issued require that strip club owners have the job offer validated.12 In 2009, for Canada as a whole, this occupational group had the eighth highest incidence of validated offers. The group had a total of 1,836; each validated job offer might cover more than one position.13 As well, starting 11 January 2011, every contract between an employer and an exotic dancer who comes to work temporarily in Canada must contain two new clauses confirming that transportation costs and health care insurance costs are the employer’s responsibility.14
Although foreign exotic dancers had traditionally come to Canada from the United States, by the late 1990s, many more were from Eastern Europe. It was at that time that concerns about human trafficking began to emerge. For that reason, immigration officers working at foreign missions require applicants for exotic dancer visas to present a valid employment contract; they then verify that the employer is legitimate. The officers are trained to detect and screen out applicants who may be potential victims of human trafficking. They also apply health and safety criteria and ensure that arrangements have been made for the applicants to return to their country of origin once the visa has expired, as in the case of any other temporary worker.15
Between 2004 and 2007, the number of permits granted to foreign exotic dancers in Canada seems to have declined dramatically. According to information provided by the Department of Citizenship and Immigration, 342 work permits and work permit extensions were issued to foreign exotic dancers in 2004, but that number dropped to 17 in 200616 and stood at six in 2010.17
Clauses 206 and 207 of the bill amend the IRPA to allow immigration officers to refuse to authorize foreign nationals to work in Canada if they believe them to be at risk of exploitation.
Clause 206 of the bill adds a new provision to the IRPA. Section 30(1.1) states that an immigration officer “may” authorize a foreign national to come to work or study in Canada if the applicant meets the conditions set out in the regulations. This gives immigration officers discretion to refuse to authorize an applicant to work or study in Canada, even if the applicant meets the conditions set out in the regulations.
10.2.1.2 Limits on the Discretion: Public Policy Considerations, to Be Defined in Instructions Published in the Canada Gazette
Clause 206 also adds sections 30(1.2) to 30(1.7) to the IRPA.
Section 30(1.2) states that an officer must refuse to authorize a foreign national to work in Canada if he or she believes that the public policy considerations, set out in instructions from the minister, justify such a refusal. This discretionary power is somewhat limited by section 30(1.3), which states that any refusal to give authorization to work in Canada requires the concurrence of a second officer.
Section 30(1.4) states that the minister’s instructions will set out what constitutes the public policy considerations and that they will aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, particularly sexual exploitation.
Sections 30(1.5) to 30(1.7) state that the ministerial instructions will be published in the Canada Gazette. They will take effect on the day on which they are published (or on any later specified date). Once they are in force, they will also apply to all applications for work permits made before that day and for which a final decision has not been made. The instructions will cease to have effect when a notice of revocation is published in the Canada Gazette.
Clause 207 of the bill amends section 94(2) of the Act to require the minister of Citizenship, Immigration and Multiculturalism to include the ministerial instructions in the annual report to Parliament.
It is important to note that this is the only place in the IRPA where the ministerial instructions are referred to in this detailed manner. Although ministerial instructions on a variety of issues are referenced elsewhere, this is the only section to establish explicit and detailed requirements as to how those instructions must be published and included in the annual report. This amendment increases the accountability that comes with the implementation of the instructions and any potential refusal of temporary work permits based on an assessed risk of exploitation.
Clause 205 of the bill amends the objectives of the IRPA with respect to immigration by adding the word “public” to the reference to the protection of health and safety currently specified in section 3(1)(h) of the IRPA. The amended IRPA is intended to protect public health and safety and maintain the security of Canadian society in immigration matters.
Sections 31 and 33 of the Immigration and Refugee Protection Regulations 18 already used that terminology to explain potential dangers to public health if a foreign national suffered from a communicable disease and to public safety if a foreign national’s health made the person likely to engage in violent behaviour, for example.
It is important to note that Part 5 of Bill C-10 amends only section 3(1), which deals with the objectives of the IRPA with respect to immigration. Section 3(2), concerning the Act’s objectives with respect to refugees, and which states that it aims to “protect the health and safety of Canadians,” remains unchanged.
Clauses 149 and 150 of Bill C-10 relate to consequential amendments to the IRPA due to amendments made to the Criminal Records Act:
- Section 36(3)(b) of the IRPA is amended to state that inadmissibility to Canada cannot be based on an offence for which a record suspension has been ordered.
- Section 53(f) of the IRPA is amended to state that regulations under the IRPA may include provisions relating to the effect of a record suspension on the status of permanent residents and foreign nationals and removal orders made against them.
As already noted in section 7, “Amendments to the Criminal Records Act (Pardons),” in this legislative summary, Bill C-10 would amend the Criminal Records Act to increase the time that individuals who commit certain crimes would have to wait before being able to apply for a record suspension (formerly known as a pardon). The timelines proposed are 10 years for all indictable offences and five years for all summary offences.
In addition to its implications for Canadian citizens, this amendment would have a particular impact on permanent residents and foreign nationals who have committed crimes in Canada. Such individuals are subject to hearings regarding their admissibility to Canada which take place before the Immigration and Refugee Board of Canada, where they may be deemed inadmissible on the grounds of criminality (where a person has been convicted by way of indictment or has committed any two unrelated offences) or serious criminality (crimes that have a maximum term of 10 years’ imprisonment or more or for which the subject has received a sentence term of more than six months’ imprisonment).19 There is very little room for discretion at admissibility hearings – once the grounds for inadmissibility are documented, the tribunal must revoke permanent resident status and order the removal of the foreign national.20 This means that the amendments to the Criminal Records Act contained in Bill C‑10 will affect the ability of foreign nationals and permanent residents to obtain record suspensions. As a result, their ability to either stay in or re-enter the country could be hampered.
Foreign nationals with a criminal record who wish to enter Canada must apply from outside the country for rehabilitation (an evaluation of an individual’s criminal record to determine if that person still poses a threat to Canadian society).21 An individual with a background involving “serious criminality” must apply for rehabilitation to a Canadian visa office. This application can only be made if at least five years have elapsed since the completion of any sentence and the individual has not been convicted of an offence during that intervening period. Rehabilitation is currently dealt with by the IRPA regulations, which are likely to be modified by amendments made to section 53(f) of the IRPA contained in Bill C-10.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
- This section of this legislative summary is based largely on the legislative summary of Bill C-45, the version that preceded Bill C-56. See Daphne Keevil Harrold, Bill C-45: An Act to amend the Immigration and Refugee Protection Act, Publication no. LS-657E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 25 August 2009. [ Return to text ]
- Criminal Code [the Code], R.S.C. 1985, c. C-46. [ Return to text ]
- Immigration and Refugee Protection Act, S.C. 2001, c. 27. [ Return to text ]
- Section 279.01(1) of the Code reads as follows:
Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable
(a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for a term of not more than fourteen years in any other case. [ Return to text ]
- Citizenship and Immigration Canada, IP1 – Temporary Resident Permits (246 kB, 54 pages), Operational Manual (Inland Processing) IP 1, 19 June 2007, s. 16 and Appendices F–I. [ Return to text ]
- More information on the Interdepartmental Working Group on Trafficking in Persons is available ¸on the Justice Canada website. [ Return to text ]
- “At any given time, a country can be a source, destination or transit country, or all three.” (Royal Canadian Mounted Police, Project Seclusion, Human Trafficking in Canada (4.7 Mb, 54 pages), March 2010, p. 4). [ Return to text ]
- House of Commons, Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws, 1st Session, 39th Parliament, December 2006. [ Return to text ]
- House of Commons, Standing Committee on the Status of Women, Turning Outrage Into Action to Address Trafficking for the Purpose of Sexual Exploitation in Canada, 1st Session, 39th Parliament, February 2007. [ Return to text ]
- Citizenship and Immigration Canada, “Government of Canada introduces the Preventing Trafficking, Abuse and Exploitation of Vulnerable Immigrants Act,” News release, 19 November 2010. [ Return to text ]
- In a letter to the Standing Committee on Citizenship and Immigration dated 10 January 2008, the Adult Entertainment Association presented the following figures: about 23 million Canadians attend adult entertainment establishments every year; there are over 500 such establishments in Canada; and 40% of the association members hire foreign workers. [ Return to text ]
- Audrey Macklin, “Dancing Across Borders: ‘Exotic Dancers,’ Trafficking, and Canadian Immigration Policy,” International Migration Review, Vol. 37, No. 2, 2003, p. 474; and James Gordon, “Number of Strippers Coming to Canada Drops Dramatically,” National Post, 26 May 2006, p. A6. [ Return to text ]
- Human Resources and Skills Development Canada, Temporary Foreign Worker Program, Labour Market Opinion (LMO) Statistics, Annual Statistics 2007–2010, 30 June 2011. [ Return to text ]
- Human Resources and Skills Development Canada, “Notice for employers hiring temporary foreign workers to work as exotic dancers in Canada,” Temporary Foreign Worker Program, 1 December 2010. [ Return to text ]
- Senate, Standing Committee on Legal and Constitutional Affairs, Proceedings, 1st Session, 38th Parliament, 23 November 2005, p. 25:54 (Carole Morency, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada). [ Return to text ]
- Information provided by the Department of Citizenship and Immigration (CIC) on 11 June 2007. [ Return to text ]
- Information provided by the CIC on 4 July 2011. [ Return to text ]
- Immigration and Refugee Protection Regulations, SOR/2002-227. [ Return to text ]
- Immigration and Refugee Protection Act, s. 36. [ Return to text ]
- However, a person who was a refugee claimant prior to becoming a permanent resident will not be automatically removed unless a “danger opinion” has been obtained from the Minister of Citizenship, Immigration and Multiculturalism. Such opinions are based on case-by-case analyses to which the subject has the right to respond, where the person may present evidence showing that she or he does not pose a threat to Canadian society. [ Return to text ]
- Immigration and Refugee Protection Regulations, s. 18. [ Return to text ]