Human Trafficking in Canada: Examining Critical Perspectives
Centre for Research on Security Practices
INTERVIEWER: Avery Moore Kloss
PARTICIPANT[S]: Katrin Roots, Kamala Kempadoo, Alison Clancey and Shane Martinez
LENGTH OF INTERVIEW: approximately 57:06
Avery Moore Kloss 00:08
Welcome to CRSP talk, the podcast from the Centre for Research on Security Practices also known as CRSP. I am Avery Moore Kloss. Today on the podcast we are exploring a topic that is very often misunderstood and also one that is heavily policed, human trafficking, specifically anti-trafficking efforts that are intended to target exploitative conduct, but most often miss the mark according to our guests today. Our guide for this episode is none other than CRSP’s member Katrin Roots who joins me in person in studio today. Hi Katrin.
Katrin Roots 00:38
Hi, Avery.
Avery Moore Kloss 00:39
Thank you for being here.
Katrin Roots 00:41
Thanks for having me.
Avery Moore Kloss 00:42
So nice to have a co-host in person. Katrin is an associate professor in the Department of Criminology here at Wilfrid Laurier University. She's been researching human trafficking for over a decade. Katrin, can you give me some background on your work and where you focus?
Katrin Roots 00:59
Yes, so as you said, I've been researching trafficking for over a decade now in Canada specifically. And my research focuses on the criminal justice approach to trafficking, so how the police and prosecutors understand trafficking, how they determine what is a trafficking activity, what charges they lay, who gets charged and who are the victims, and how these cases move through the justice system.
Avery Moore Kloss 01:30
So, I think my first question is seemingly really obvious, but I think there was actually a really complicated answer to it that we explore in this episode. But what is human trafficking?
Katrin Roots 01:40
So, most people think about human trafficking as being the scenario from the movie Taken right, with Liam Neeson as women being kidnapped or given false promises and then transported across transnational boundaries to be exploited in brothels. But that's not what trafficking cases look like here in Canada. So compared to the United Nations Trafficking Protocol, which defines the offence as a combined process of recruitment, transportation and exploitation. Our Canadian laws on trafficking have defined the offence quite broadly. So, in Canada the offence basically comes down to exploitation, which enables a wide array of activities to be captured under this umbrella term, human trafficking. So in an attempt to narrow this definition, legislators have added a provision that said that the intent to exploit needs to take place in a way that would make a reasonable person fear for their safety, and so this fear safety includes physical, psychological or emotional safety. So, fear for their safety or the safety of their loved ones. But the law doesn't actually define what it means to fear for one's psychological or emotional safety. Interestingly, even though human trafficking laws are broad and applicable to any industry, most of the trafficking cases here in Canada are focused on the sex trade industry, which in practice makes the application of these laws narrow.
So very few trafficking cases deal with labour exploitation outside the sex trade, even though migrant labour organizations report significant exploitation issues with migrant laborers in certain industries like agriculture, particularly within the temporary foreign worker program. So, this focus on the sex trade happens because one, the sex trade is seen from certain perspectives as being inherently exploitative and so it can be easy enough to apply the trafficking label to sex word cases. Also, sex work is criminalised and so it's easy for police to justify surveillance of it. The third reason is because although migrant workers, especially those working within the temporary foreign worker program, experience a plethora of exploitative practices. The program is set up by the Canadian government and it's vital to Canada's economy and so, it's not scrutinized in the same way as the sex industry is.
Avery Moore Kloss 03:39
Yeah, and I think that's something that we're definitely going to talk about this episode and where we're going first is, for this episode I have interviewed 3, you know, experts in their field in different areas of this discussion. And I think, this definition of human trafficking is going to come up a lot. And I think where it's best to start is with Kamala Kempadoo. So, she is from York University. I'm actually going to let her introduce herself.
Kamala Kempadoo 04:28
Hello, my name is, Kamala Kempadoo. I'm a professor of social science at York University in Toronto and I have been working for many years, several decades in fact, on questions around the global sex trade and human trafficking and anti-trafficking globally, but also with a specific focus on the Caribbean.
Avery Moore Kloss 04:54
But the first thing I asked Professor Kempadoo to do is to layout for us the broader context of what you know, the impact of anti-trafficking framework. So, here's that interview.
Kamala Kempadoo 05:05
So, anti-trafficking has become a very popular term and idea around the world for and basically to cover a lot of things that we consider not right, particularly in the workforce and with people migrating. But unfortunately, it's become very… loose and used to cover a lot of things and almost become meaningless in my view. It's usually referring to forced labour and forced migration situations.
Avery Moore Kloss 05:45
Now, can you give me a sense how this concern for human trafficking has in some ways mobilized or been weaponized by politicians?
Kamala Kempadoo 05:54
The idea of human trafficking originally started around a concern for the movement around the world of white European women in the 19th century. But in 2000, or just before then it was expanded through the United Nations to incorporate exploitation in the labour force, forced labour and undocumented migration, forced migrations. So, the UN defined it in 2000 is a very broad category of wrongdoing. The way it is used particularly now is that U.S. government US State Department evaluates and monitors the world. So, they've taken on the role of sort of implementing a sort of monitoring system for the UN, if you like, and each year produces a report about how countries around the world are doing on what they consider to be standards of trafficking.
If we look at closely at that, we can see that who they put in the countries that are doing well on the scale of trafficking, anti-trafficking efforts and those who are not, are very much falling in line with how the United States stands in the world with regards to all... I can get into it. So, if we look at how the US state department monitors and evaluates countries around the world on how they're doing on anti-trafficking. What we see is that countries that are favorable in the US platform policy to the United States appear in top tier countries and then those that the US State Department or the US government has a poor relationship with such as China, Cuba, Venezuela, North Korea, Burma, Afghanistan, South Sudan, they appear consistently as those that are failing in combating human trafficking. I read this as a very political. You know, evaluation and it does not driven, doesn't seem to be driven by actual data or any real facts, but rather a political stance. And so, countries are being evaluated and monitored on with on this basis and are being pushed by the United States government to address trafficking and scrambling to try to meet these US standards. And to me, this is a wave of political act.
Avery Moore Kloss 09:05
Can you give me a sense of what the benefit is, to that approach for the US State Department to make it, you know, if it is in fact, political to almost target those countries that they don't have good relationships with, as, you know, rating poorly on human trafficking?
Kamala Kempadoo 09:22
It comes with economic sanctions and aid to those countries, so you know countries that you know, humanitarian aid particularly know, humanitarian aid particularly is affected or threatened if a country doesn't perform well on the human trafficking scale. According to the US State Department.
Avery Moore Kloss
Can you give me a sense of what the effective that is, for those countries, an end for human trafficking at large?
Kamala Kempadoo
Well, it undermines countries in the global south’s ability to support their populations, to provide healthcare, wealth, welfare to take care of their populations. So, the age from the global north is being halted and through these anti-trafficking policies. So, you know it's increasing the global inequality between global north and global south.
Avery Moore Kloss 10:21
You know the criminalization and policing of trafficking generally has kind of focused on individual wrongdoers or the traffickers. How effective do you think that approach is? And I mean, does that in some ways oversimplify the problem?
Kamala Kempadoo 10:37
It certainly oversimplifies it. It targets mostly non-white men as traffickers and you know poor women, young white, black, brown and black women as those who are victims of trafficking. And in doing that, individualizing it in that way it completely obscures those global relations of power that I just was talking about, and also obscures the way in which industries domestically… domestic household arrangements and so forth are dependent and relied upon very cheap labour. It also obscures completely disappears how we have, you know, whole sectors of the world who are having to work for minimum wages and unsafe conditions in mines and factories and households, restaurants, construction businesses. You know, and because of, you know, these large populations, needing work. They are able to… industries are able to keep wages for other people low. So, you know anti-trafficking, the focus on the individual traffic and traffic persons takes away our views of these larger structural inequalities.
Avery Moore Kloss 12:12
I wonder, do you have any sense of the way the public views human trafficking like, you know, we talk about obscuring. Obscuring global relations, obscuring, you know, these different sectors who are working for very low wages. Is there is there a sense from the public that, you know wrong or right about human trafficking that's also problematic here? I mean, or, or so whatever, I mean, I'm assuming that you know what they know is what they've seen. But I do kind of wonder if there's a disconnect on the public side, about what human trafficking is and how anti-trafficking should be handled.
Kamala Kempadoo 12:48
Well, the first thing that comes to mind when people generally hear about trafficking. Human trafficking is of a young woman being forced into prostitution. That's the common image of a trafficked person and that is something that immediately is sort of mobilized in the popular media to talk about human trafficking. So that immediately schools and sensationalize is an issue and it takes away any ability for us to see anything larger than that, except for the plight of, you know, a poor young woman being forced to have sex.
Avery Moore Kloss 13:36
I think often we hear, especially in this, in the study of human trafficking, we hear about human trafficking kind of labeled as modern-day slavery and compared with the transatlantic slave trade of black people and I wonder if you could give me a sense of like what the implications and assumptions of that comparison are and whether or not it's helpful.
Kamala Kempadoo 14:00
It's a slippery one, it's unhelpful I find, because it undermines the history of the transatlantic slave trade and the Sub treatment that were inflicted on people of African descent, black people. In that its claims that the situation today of modern circle modern day slavery or human trafficking is broader than larger than it was historically, right? So, it minimizes the transatlantic slave trade. But secondly, what we what is not seen very clearly is that the Transatlantic slave trade and historical slavery was actually premised on the legal ownership of people of another human being, and that actually is very, very, very, very rare today in around the world, in situations of forced labour, people have most part indebted. But they are free people, persons, and they are not legally or in any other way owned by another. And that conflation disappears the distinction between the transatlantic slavery and what we're dealing with today.
Avery Moore Kloss 15:28
Can you give me a sense when we're talking about the anti-trafficking framework and you know, you've talked about, you know, obscuring good relations and the way the US State Department evaluates and monitors the world and how political that is. The current anti-trafficking framework that we operate in, does that affect our ability, do you think, to address global inequality and exploitation? Like, is it holding us back from actually making any kind of change here or actually, you know, helping the people who are being exploited in these situations?
Kamala Kempadoo 15:59
I would say yes. I would say it's a very nice kind of diversion away from these larger inequalities that we have enormous amounts of wealth being accumulated in various parts of the world, particularly the global north and these large corporations. And you know, the poverty that was seen in other parts of the world, it obscures that, it prevents us from really doing anything about that. And it holds in places as I have written about it in various ways the, you know, the white supremacy, the, you know, the dominance of the, of the West and certain kind of paternalism that goes towards the global south.
Avery Moore Kloss 17:00
Okay, so obviously she's brilliant and that interview, I learned so much from that interview on the broader context and she does talk a lot about the US context. And so, I wonder, could you set up for me what efforts are in place to combat trafficking in Canada specifically?
Katrin Roots 17:20
For sure. So, there are a lot of policies and mandates and laws and so forth that have been put into place, particularly in the last decade on human trafficking. It's really expanded in the last decade. We've seen massive increases in anti-trafficking funding. The federal government for instance has invested heavily into this. They've in 2012 they put into place and National Action Plan to combat human trafficking and with it the federal government provided $25 million over 4 years to these anti-trafficking efforts. Then in 2019 to 2023 there's new national anti-trafficking strategy invested even more so this time $75 million into these efforts and then we've seen provinces like British Columbia, Manitoba, Ontario also follow suit with provincial-level efforts and dedicated funding. So, for example, we saw Ontario had the most substantial funding when they first allocated 75 million or $72 million in June of 2016 and then 307,000,000 over 5 years. Beginning in 2020. So, these are significant sums of money that are being put towards anti-trafficking efforts. A significant portion of that money goes towards policing of trafficking. We've seen, so we've seen the emergence of these specialized anti-trafficking units with police services across all levels. We've seen the emergence of Raid and Rescue operations targeted at the sex trade. We've also seen increases in surveillance of the sex trade, both online and in person. And again, a lot of these efforts are targeted at the sex trade as we talk about throughout. A lot of funding has also gone towards community organizations with strict parameters around who can access the services. And so, the pressure to engage in these anti-trafficking activities is also now extended to other industries, like the education, healthcare, hospitality, tourism and so on. So, workers in those industries are actually being trained, often by police officers to spot indicators of human trafficking and these signs of human trafficking are quite broad and then they're being told to report them to the police. So, there's a lot of activities being reported to the police as people suspect trafficking go be taking place.
Avery Moore Kloss 19:51
That's a good set up for the context in Canada. And so, I think the next thing I need you to set up just quickly is from here on out in the episode we hear, we're going to hear a lot about the trafficking protocol that was developed by the UN, also known as the Palermo Protocol. Can you give me a sense of how much impact that protocol that was you know created 20 years ago has it, has on how we talk about and deal with human trafficking now?
Katrin Roots 20:19
Yeah. So, the Trafficking Protocol is the full name of it, is the protocol to prevent, suppress and punish trafficking in persons, especially women and children which the UN developed in 2000, enacted in 2002 so in comparison to the there's been 5 reiterations of this. The trafficking protocol has been exceptionally well taken up in comparison to the previous ones. Canada was one of the first countries to ratify this protocol and so this protocol shifted the focus of the anti-trafficking efforts from a human rights focus of framework to a criminal justice framework or criminalization framework, so basically redirected the way that we aim to address the issue of human trafficking through a criminal justice framework and it has been a significant driving force behind these efforts that have followed over the past 20 years in domestic settings across the globe.
Avery Moore Kloss 21:15
Yeah. So, and you talk about criminal justice and obviously, we've talked a lot about, you know, the policing of human trafficking and specifically how that affects the sex trade. And so, our next interview is with Allison Clancey, and she works for one of those community organizations that we talked about earlier and so I’m going to let Allison just here tell us about herself, OK?
Alison Clancey 21:38
My name is Allison Clancey, I'm the Programs Director at SWAN Vancouver and SWAN promotes the rights, health and safety of newcomer, migrant and immigrant women engaged in indoor sex work through frontline service and systemic advocacy and I have been working in the area of trafficking policy and the harms of anti-trafficking initiatives and campaigns for about 15 years.
Avery Moore Kloss 22:08
So, with Allison, I started by asking her about that protocol we just talked about, to give me a sense of, you know what, 20, what the impact of 20 years of the Palermo Protocol has meant for specifically for the sex trade.
Alison Clancey 22:23
So, it's my understanding that the Palermo Protocol rose out of the international community’s need to address organized crime, which resulted in a strong law enforcement tool that was weaker on human rights protections and victim assistance. As such, the women who access SWAN services so migrant and immigrant sex workers they haven't experienced better conditions or protections to prevent trafficking when it comes to international migration or work, and I would say to the contrary, the strong criminal justice lens on trafficking prevails and this works to the detriment of migrant and immigrant sex workers.
But what I would say is what is more impactful on the women who access our services is Canada's anti-trafficking, immigration and sex work legislation, policies and practices, which are created based on a moral panic that trafficking is of epidemic proportions in Canada and its policy that's informed by trafficking rhetoric and so this was on full display recently with Canada's prostitution laws review, when a number of self-proclaimed trafficking experts provided non-evidence based information that was uncritically consumed by some members of the justice committee. Most disturbingly, I think these perspectives were given equal weight as sex workers' perspectives speaking to their lived experiences and or the sheer volume of empirical research that was presented.
So, the women who access SWAN services are anti-trafficked, meaning they bear the burden of harmful policies and practices that actually increase their vulnerability to trafficking.
Avery Moore Kloss 24:21
Yeah. I wonder if you can give me a sense of why that is, you know, like, why often these policies are shaped by, like you said, you know, “trafficking experts,” as opposed to, you know, really taking to heart what the women who actually work in this trade, say about how they feel it and how they like to be protected.
Alison Clancey 24:41
Yeah, I think morality clouds evidence in this dialogue and conversation. I think a lot of anti-sex work, anti-trafficking activists just really go back to their own moral, personal views and beliefs about the sex trade. And they present those under the guise of antitrafficking campaigns and initiatives and in the end, it just ends up just creating more systemic vulnerability to human trafficking, unfortunately.
Avery Moore Kloss 25:16
Yeah, I think one of the examples of this conversation you're talking about is, when people talk about Operation Northern Spotlight. So, you know, obviously police have continued to carry on, carry out various raids and rescue operations” and they're targeting the sex trade, like you say, in the name of like fighting human trafficking and so I wonder if you can tell me like projects like that, how are they impacting the migrant sex working communities that you work with it and what are kind of the repercussions of this kind of raid mentality with projects like that?
Alison Clancey 25:50
Yeah, I mean, I think it's important for the listeners to understand exactly what we're talking about when we refer to Raid And Rescue Operations. So, these are undercover sting operations whereby police catfish or pose as clients online on adult websites or carry a workplace rate on vocation where sex work occurs so to describe just how frightening or traumatic these are… Imagine you are sitting at your place of work, whatever that may be, you know, you may be working at home. You may be at your work site. You neither hate nor love your job. It pays the bills. It's an uneventful day. You may be thinking about what you're going to do when you get off work. Or perhaps you're thinking about the cost of living these days and how you're going to pay the bills at the end of the month and then suddenly, let's say 6 to 8 armed police officers stormed into your space. Sometimes they're in full SWAT gear. So, you can imagine how just traumatizing this would be.
So, what we've heard from the women who access SWAN services is they have a lot of confusion when this happens, fear, and in many cases, they thought that they were being robbed and so time and time again, we've heard that the women are more fearful of law enforcement than predators. So, this drives the sex industry underground and it creates insurmountable barriers to reporting violence and or trafficking if it actually does happen. Unfortunately, it creates adversarial relationships between police and those who are raided and as you can imagine, these women are not going to turn to the same police officers who traumatized them in raid and rescue operations in their actual time of need. So, it's just perplexing to us, at SWAN that the police continue to promote this as a trust and relationship-building exercise with the sex work community.
Avery Moore Kloss 27:55
Yeah, Allison, there's, there's obviously a big disconnect there like we've been talking about, you know, this, this disconnect between the moral panic and you know what actually, you know, these humans, how they would like to be treated and how they would like to be protected or, or what kind of services they would have liked to have available. And I wonder from you, you know, if, we're shaping policy based on what these women are actually asking for, how would that system look different? What are what are what are they hoping will change? And how could that system be better suited to actually protect their interests rather than traumatise them?
Alison Clancey 28:31
Yeah, I think there needs to be a lot of education and awareness done about what their actual needs are. So, to be clear, SWAN rarely encounters trafficking among immigrant and migrant sex workers, despite the widely held belief in society. But that's not to say that there isn't violence occurring, that there's not different forms of labour exploitation happening and from time to time there is trafficking happening. So, what the women would like to see, is to have their actual needs in addressing violence and increasing safety addressed. Not you know, the police chasing ghosts and always looking for this international human trafficking ring.
It is just a glaring indifference to the actual crimes that are perpetrated against sex workers when the police are always looking for human trafficking.
Avery Moore Kloss 29:33
So, Allison it’s essential, you know, what's called Rescue Industry has kind of developed out of concerns for tracking trafficking like we're talking about. And I just wonder, you know, where does your organization stand and in relation to that and how is SWAN doing things differently?
Alison Clancey 29:48
Yeah, I mean, SWAN has been a vocal critic of the rescue industry or mainstream anti-trafficking efforts and campaigns for quite a long time. Some of our early work in this area dates back to 2006 when law enforcement raids of 18 massage parlors were carried out in Greater Vancouver. And these raids at the time and still are, purportedly carried out to identify victims of human trafficking. So, they arrested 78 women. None of the women were trafficked during breach of immigration laws and none of the women accepted the victim services police offered. So, we, despite our size being a very tiny organization, we take on these very powerful stakeholders in the rescue industry and this is really serious business. In SWAN’s case for seeking accountability around the Vancouver Police Department's anti-trafficking enforcement in 2018, SWAN itself was threatened with obstruction of justice, criminal liability and one of the prostitution laws receiving material benefit for providing counselling and direction. So, we had to lawyer up and, in the end, no substantive investigation ensued, but it just demonstrated to us that critiquing Canada's anti-trafficking efforts is a very risky endeavour. Particularly for a tiny organization likes SWAN going up against these powerful stakeholders in the rescue industry.
So, I think what we're doing differently is we spend a lot of time raising awareness among the general public about the harms of mainstream anti-trafficking initiatives. So, I understand that more and more people are learning about human trafficking and feel compelled to do something about it, but unfortunately this desire to take action is not always expressed in productive ways. So, some campaigns are ineffective. Some campaigns are ineffective. Such as awareness-raising campaigns and some campaigns are just plain harmful and actually increased vulnerability to human trafficking.
We feel it's critical to get that message out to the general public is that yes, of course human trafficking needs to be addressed, but not in the way that it's currently being addressed in Canada.
Avery Moore Kloss
So, Allison, all that, all that said, you know, are there things that you think the public needs to know about the harms of, you know, dominant anti-trafficking messaging?
Alison Clancey 32:37
Yeah, I just encourage people to just do, due diligence when engaging with or sharing anti-trafficking information or participating in anti-trafficking initiatives. The messaging is often fear-mongering, its often viral scare lore and it's not informed by evidence. So, if people are concerned about women in the sex trade the best way to express that concern or act upon it is to reach out to your local sex work organization, not an anti-sex work anti-trafficking organization and if people are concerned about exploitation or trafficking and other sectors such as agriculture or domestic work, support your local migrant rights organization, this is where meaningful anti-trafficking prevention work is being done by trying to improve labour rights and protections, not in anti-trafficking organizations that are really working to eradicate the sex industry under the guise of anti-trafficking.
Avery Moore Kloss 33:49
We are super grateful for Allison, for being part of this because I think having her perspective as someone who works with people in the sex trade and has for many years, I think a lot of what she said is, is really important here and so I wonder, you know, we talk a lot about the sex trade when or, you know, you hear a lot about the sex trade when it comes to human trafficking, but where else is the exploitation happening?
Katrin Roots 34:13
Yeah. So, as you said, currently these efforts are primarily directed at the individual perpetrator, right, The bad man. The trafficker. The onus currently is being placed on the individual offender rather than tackling the systemic exploitation, which is so pervasive, particularly when we look at certain industries agricultural industry, restaurant industry, so forth and efforts are also, as we talked about throughout this podcast, focused on the sex trade rather than really looking at the exploitation in various other industries. So as Professor Kempadoo pointed out, the trafficking framework really kind of pigeonholes us into looking at exploitation in this very narrow way and often in a very misguided way. Rather than, you know, zooming out and examining the ways in which the capitalist system of governance really creates these inequalities and enables exploitation, and this is really the system that we need start unravelling.
Police here are focused on the sex trade because it is in the criminal justice system really are focused on sex trade because it's an industry that's already criminalised and it's easy to label sex for cases as trafficking because of the way in which the sex trade is deemed as already inherently exploitive. So, the police, as I've mentioned before, received significant funding in recent years to kind of proactively. Tackle the issue of trafficking. So, we've seen the rise of these specialized anti-trafficking units within provincial and municipal police services and these units really need to kind of justify their own existence, right, because they're being funded. So, in other words, they have to show that there is trafficking, trafficking is an issue in our society, and they are needed, their work is needed to tackle it. So, to do so, they have to show arrest numbers, right? On the other hand, it's much harder to address the stem of exploitation, which requires massive overhauls of current programs, policies and forms of governance.
Avery Moore Kloss 36:05
I think one part of what you said there is, is where we're going next, which is looking at a different industry that really deals with a lot of exploitation, which is the agriculture industry and migrant farm workers. And so the next interview you did was with defence lawyer Shane Martinez. He works with justice for migrant workers and so I'm just going to Shane introduced himself.
Shane Martinez 36:26
Hi, my name is Shane Martinez. I am a criminal defence lawyer in Toronto, I’ also an adjunct professor of prison law at York University, and I'm involved with justice for migrant workers.
Avery Moore Kloss 36:40
So, our first question for Shane was to give us a sense of, you know, we talk about this traffic in protocol. The Palermo protocol, we've talked about it under the heading of the sex work industry, so we ask Shane to give us a sense of how anti-trafficking measures are guiding how the Canadian Border Services Agency, polices the agriculture industry.
Shane Martinez 37:08
So the Canada Border Services Agency, CBSA, it frequently conducts raids on farms, greenhouses and other agriculture operations, so, for example, packing and processing facilities. Many times, migrant farm workers who have no status are shocked. As they were under the impression that they were legally working in Canada, they often pay thousands of dollars to recruiters to get into the country. They are provided with assurances that the operations they're working in are legit. Sometimes it provided with false paperwork that would lead them to have that belief. They could be forgiven, though, for being under this impression, because infact, the workplaces that trafficked workers are placed in, are sometimes indistinguishable in their conditions from workplaces which operate legally through the Temporary Foreign Worker program, the Seasonal Agricultural Worker program, and so on. And migrants who are detained by the CBSA are sometimes held in jails instead of in immigration detention centres pending removal. There have also been instances of racialized persons in rural communities, which are the communities which are most often policed in terms of agriculture by the CBSA, being targeted by the CBSA solely because of the colour of their skin. So, in other words, they're being profiled in suspected of being non-status workers because there are people of colour in predominantly white communities. Now while enforcement has interfered with some workplaces using undocumented workers and in some limited situations has actually rescued individuals from indentured labour, it has not done anything to address the root causes of exploitation and abuse. Instead, it's merely serving as really a reactionary measure, one which CBSA claims preserves the integrity of the legal Temporary Foreign Worker Program. This is not really surprising though, as exploitation and abuse are commonplace in Canada's seasonal Agricultural Worker program, a system which sees tens of thousands of individuals come here every year from Mexico and the Caribbean to work on Canadian farms and CBSA’s purported preservation of the integrity, as they say, of the legal farm work program is really in some ways about preserving market control and dominance. The widespread exclusion of migrant farm workers from workplace protections makes it evident that the rights and well-being of these workers is very much a secondary concern at best to the state. Enforcement action is really at its core about ensuring that the government and its corporate partners in the industry maintain order and exclusive benefit from their own programmes, which is to the tune of billions of dollars a year.
Avery Moore Kloss 39:59
Yeah, absolutely. I mean, I wonder with all that being said, are there ways that you think that those measures should be expanded to, to capture you know to focus more on migrant farm working situations or should we be leaning towards kind of like an alternative way of responding and understanding, you know, the conditions that are being addressed?
Shane Martinez 40:21
Right. Well, I suppose the fact of the matter is that if putting people in jail stopped crime, then we would not really have the system that we do. The prospect of incarceration or other punitive measures is simply not an effective deterrent. Off the state adopt alternative ways of approaching the issue? Yes, but whether that will actually happen is questionable in the context of migrant farm workers who are being trafficked, I think we need to ask ourselves, why these individuals are willing to take such extraordinary risks and endure such horrific conditions for an opportunity to make such little money in Canada.
The core reasons that Canada has a pool of racialized labour to draw from internationally are the same now as they were back when the Seasonal Agricultural Worker Program was first started in 1966. We have individuals seeking employment here, out of desperation in Mexico, Jamaica and elsewhere, where they contend with economic disparity. That is not infrequently influenced by structural adjustment programs and related pressures from Western countries, including Canada. So, what does what does that mean? Well, Canada and the Canadian agricultural industry is able to take enormous advantage of this. It really resonates with me, a quote from Michael Parenti actually in a general observation that he had about global capitalism, which is that, being poor means that you will work harder for less, and migrant workers here in Canada will do dangerous, exhausting work Canadians are unwilling to do themselves because their economic circumstances put them in a position where they're willing to work harder for less. Tens of thousands of migrant workers come here every year to keep our economy functional, particularly in the agricultural sector. Where would essentially collapse entirely if not for migrant labour. There is zero benefit to the Canadian state ameliorating conditions abroad that would reduce the flow of foreign workers to Canada. We must address how Canadian laws and policies both domestic and internationally impact the material circumstances and perpetuate disadvantage in the poorest countries in the world, because it is really this that contributes to the creation of a market for individuals to be trafficked.
Avery Moore Kloss 42:55
We were talking about the CBSA raids on the farms that are not regulated, that don't have a Temporary Foreign Worker Program. What happens to those migrant workers that are discovered there? Like are any of them labelled as trafficking victims because, if you think about the conditions of some of their employment, right? Their documents were taken away, their labour is exploited. There are a lot of components that would enable them to be categorized as trafficking victims. Do you see a lot of them being labelled that way, and if not, why do you think that is?
Shane Martinez 43:31
Very rarely. And it's an excellent question too. And I think we can kind of answer that by breaking down Section 279.01 of the Criminal Code. Again, that's the trafficking section, right? So first we have the portion that reads: every person who recruits, transports, receives, holds, conceals, or harbours a person. So, we know that employers in the agriculture industry, whether they have undocumented workers or workers who are working legally, that those employers, in consultation with Employment and Service Development Canada, routinely recruit people from abroad to labour here in Canada. The entire system is dependent on foreign workers being recruited to sustain Canadian farms. It then has organizations which it subcontracts with to transport workers to Canada from the global south. So, we know that that part of the law is satisfied, right?
Now, second, we have the part of the law which says: or exercises control, direction or influence over the movements of a person. Well, we also know that employers here again whether they're legal or not, and in fact the temporary foreign worker program itself, the seasonal agricultural program, exercises control and influence over the movements of migrant workers. It isolates them on remote farms where they have no access to transportation except for that which is provided by their employers. The seasonal agricultural worker program denies workers labour mobility. They're effectively tied to a single employer here in Canada. They can't go and work for someone else that severely controls and influences where they can go and when and their status in Canada is dependent on their obedience and satisfaction of the employer. So, we have that part of the law satisfied as well.
So, third, we have the portion of the law which reads: for the purpose of exploiting them or facilitating their exploitation. This is really what's key. So, this question of exploitation, well Black’s Law Dictionary which is the go-to source for lawyers looking to find legal meanings of words, defines exploitation as, “the act of taking advantage of something, especially the act of taking unjust advantage of another for one’s own benefit,”. So, let's see if Canada fits the bill for this well, migrant farm workers are among the most vulnerable and marginalized workers in the entire country, especially those in the seasonal program. They work for long hours, six days a week, making minimum wage, are provided with substandard, if any, health and safety training on the job. They’re denied the right to unionize in Ontario. They’re denied any opportunity to participate in the negotiations around their contracts and they must live in housing provided by their employers, and they are provided with cramped, sometimes dilapidated housing on farm property. It’s not in common for pesticides to be stored in or around the same buildings they live in, yet they are denied housing standards and protections that are afforded to others under Ontario's Residential Tenancies Act. They’re excluded from the protections of that act as well. They’re also forced to pay into the employment insurance system EI, but they're denied any opportunity to collect regular EI benefits. They’re denied the opportunity to have their families come to Canada with them and no matter how long they worked here for 10/15/2020, five years, they're denied any opportunity to make Canada their home and obtain permanent residence. And they also live in a constant state of fear, knowing that if they speak up and try to enforce the few rights that they have under the law, they can be removed from the country instantly if their employer chooses to fire and repatriate them. And really, this is just scratching the surface, and the question is this exploitation? I think that kind of it speaks for itself.
And that takes us to the fourth part, which is, the consequences for the offence, that someone is guilty of, of an indictable offence if they do this. Well, we have to pause there for a second. Because if we're to understand this in the way that we just reviewed it, that would mean that both employers of undocumented people and also employers of documented individuals would be guilty of this offence of trafficking. But this is kind of the odd thing, exploitation, and its section 27904 of the Criminal Code which is where things get tricky, which says that for the purpose of dealing with trafficking matters, a person exploits another person if they caused them to provide or offer to provide labour or a service by engaging in conduct that, in all circumstances, could reasonably be expected to cause the other person to believe that their safety, or the safety of a person known to them would be threatened if they failed to provide or offer to provide the labour or service.
So, the court looks at that and there's a number of factors that they that they consider in determining whether or not there was that fear. So, they look at whether or not there was coercion, deception, or abuses of power with the insertion of this standard where a person needs to fear for their safety or for that of another in order to meet the definition of being exploited. We see this march departure from regular plain language definitions of the word, the word exploitation and to what end really is this? Well, this heightened standard effectively excludes many undocumented workers from the definition of exploitation, which is the definition they would otherwise, fit. It really furthermore it protects a government sanction system which identifies destitute and impoverished individuals around the world, then recruits and transports them to Canada to labour in a system where the laws here have been designed to provide minimal protections to those workers. While at the same time being able to provide for maximum profits and workplace power for farming greenhouse owners.
Avery Moore Kloss 50:01
I just have one follow up question. I’ve been thinking about what you said about exploitation and how it's narrowed down to the fear of safety, safety or safety component. Could you make the argument that the migrant workers, if they are deported back to their home country and don't have as many of them, don't have employment, don't have ways to sustain themselves in their families. But there is a fear of safety in that.
Shane Martinez 50:27
I think that you could make a great argument there. I think there's room for some very interesting novel arguments around this. The way that this definition of exploitation is written is that essentially it requires that if the person who's providing the labour has to believe that their safety or the safety of another person known to them would be threatened, if they failed to provide or offer to provide the labour or service. I suppose, you know, we then have these questions about, you know, what is safety, right? Does it include danger that may come to a person as a result of economic precarity? It's hard to say, again, these sections are relatively new. I think there is some room to test things out in court, although I'd have to say as well that I'm really cautious with my expectations about how the court would interpret and apply this section. I believe that it would most likely be interpreted and applied to the continued exclusion of agricultural workers. I don't think that it would ever be applied in a way that would disrupt at its, at its base level, this arrangement that we have right now with foreign agricultural workers coming to Canada because it's just it's too essential to the operation of the Canadian state. But I think it's important though to at least make the argument and then to pass the ball essentially to the court to make that decision in, to lay things out clearly.
Avery Moore Kloss 52:12
Okay, so we’ve reached the end of the episode and I think my question for you here is, given all these problems with the anti-trafficking framework that we've talked about in their episode, is there a way to turn these efforts around to be more helpful for the communities that I mean, at least claims to assist?
Katrin Roots 52:35
Yeah. So, before I answer this question, there is a piece of our interview, the very last question that we asked Professor Kempadoo where she tells us, where she thinks this framework needs to go. So, I want to play this for the listener before I answer the question.
Kamala Kempadoo 52:45
What I'd like us to do is to get rid of this idea of human trafficking and actually talk about the conditions that people are facing in the workforce, right? Talking about conditions of forced labour, of indebted work labour, of undocumented migration, of the ways in which or, you know, immigration controls preventing people from being able to migrate and move for, you know, for their survival, for their livelihoods. And. So to actually talk directly about the conditions that we need to address and not through the lens of something called human trafficking, which really, as you know, we've been talking about, really takes away our ability to even see or understand these larger problems.
Katrin Roots 53:47
So as Professor Kempadoo noted the entire framework is a political one that focuses on exploitation in this specific way and kind of distracts from the broader exploitative practices that arise from the system of capitalism and global inequality. And so without changing the political motivation of this framework, there's only so much like we can do, like there's only limited change that we can bring about. But some of the changes that would be helpful would be to, for example, redirect funds currently given to the police to direct them directly to the folks on the ground who are experiencing marginalization exploitation. We can also think about refocusing on exploitation in other industries, right, particularly those that employ migrant workers, and in most cases, that means severely changing Temporary Migrant Worker Programs, which are at the core of these exploitive practices, and giving migrants status in Canada that allows them to be able to stand up for their employment standards in the first place.
Avery Moore Kloss 54:48
Again, I think that's a really good place to wrap it up. To have those recommendations and to have heard from Professor Kempadoo, which I think that's a really poignant place to leave it. And so, Katrin, thank you so much for leading this episode and sharing your work with us and setting up these interviews with these really good sources.
Katrin Roots 55:11
Thank you.
Avery Moore Kloss 55:18
We would like to thank our three quests today for their time and expertise.
Kamala Kempadoo is a professor in the Department of Social Science at York University in Toronto, with graduate appointments in gender, feminist and women studies, political science, social and political thought and development studies.
Allison Clancey is the program’s director at SWAN Vancouver, which promotes the rights to health and safety of newcomer migrant, an immigrant woman, women engaged in indoor sex work through frontline service and systemic advocacy. She also works in the area of trafficking policy and
Shane Martinez is a criminal defence lawyer in Toronto and an adjunct professor of prison law at York University. His work is involved with Justice for migrant workers. And of course, we'd like to thank you Katrin for leading this episode.
Katrin Roots is an assistant professor in the Department of Criminology at Wilfrid Laurier University. She's been researching the issue of human trafficking for over a decade. Her research examines the way in which international human trafficking laws are translated into Canada's legal contexts and are subsequently interpreted and enforced within the criminal legal system.
Also, would thank you too Carrie Sanders Sanders and Samantha Henderson for their help with this episode. You can find links to any of the research Katrin, or our guest mentioned in this episode in the show notes. CRSP Talk is a production from the Centre for Research on Security Practices at Wilfrid Laurier University.
For more research stories listen to past episodes of this podcast and for more information about the work we do at the Centre for Research and Security, practices please visit our website at CRSP.online.
Thank you for listening to CRSP talk, will be back again soon with more research to uncover.
I am Avery Moore Kloss.