Access to Compensation for Trafficked Persons in Canada

ABSTRACT

The article examines access to compensation for persons trafficked to and within Canada. It discusses the advantages and limitations as well as the interplay of four compensation mechanisms: restitution as a part of a criminal process, compensation from state victim funds, civil lawsuits for damages, and labor/human rights complaints. Neither of them has been specifically designed or subsequently modified to address the particular circumstances of trafficked persons, resulting in difficulties in access to and receipt of compensation by this group. Given the importance of compensation for achieving sustainable protection solutions for trafficked persons, a comprehensive study of the issue and strategic/policy action is necessary to improve access to compensation.

KEYWORDS:

• Human trafficking
• compensation
• restitution
• remedies
• labor complaints
• civil lawsuit
• state compensation schemes
• victims of crime
• human rights

Notes

¹ The terms ‘victim’ and ‘survivor’ will be used interchangeably in the present article. The author considers the term ‘survivor’ more appropriate in order to acknowledge both the experience of having been trafficked and the power of trafficked persons to overcome the challenges of that experience. However, Canadian legislation (Canadian Victims Bill of Rights as well as provincial legislation on compensation for victims of crime) as well as government policy documents on human trafficking use the term ‘victim.’ Hence, the article will use the term ‘victim’ when discussing that legislation and policies.

² There are two models of reception of international legal norms into domestic law: one posits that international norms do not have effect domestically, unless they are incorporated into domestic law by domestic legislation. The other views international and domestic systems as parts of a large whole, whereby international norms automatically become parts of domestic law. Canada follows the former approach in relation to treaties and the latter in relation to customary international law (Currie, 2008).

³ Compensation is distinguished from restitution, which is understood as restoration of the victim to their original position before the trafficking, except for the circumstances that made them vulnerable to trafficking. Restitution may include: restoration of human rights and liberty; voluntary return to the country of origin; return of property; restoration of employment; and assistance in social integration (UN Special Rapporteur on Trafficking in Persons, 2014).

⁴ Canada’s domestic terminology does not exactly mirror international bodies’ definition of restitution. As mentioned in preceding section, the Basic Principles on the Right to an Effective Remedy for Trafficked persons (UN Special Rapporteur on Trafficking in Persons, 2014) define restitution as restoration of the trafficked person to their original position (except for the circumstances that made them vulnerable to trafficking) and may include: restoration of human rights and liberty; voluntary return to the country of origin; return of property; restoration of employment; assistance in social integration (UN Special Rapporteur on Trafficking in Persons, 2014). In contrast, the Canadian Criminal Code uses the word ‘restitution’ when describing a court order to pay certain costs, including medical bills, lost wages, and replacement value of damaged property. Hence, what Canadian Criminal Code calls ‘restitution’ falls within the definition of compensation under the Basic Principles.

⁵ Several boolean searches were tried (without date restrictions): (1) “human trafficking” or “trafficking in persons”/p restitution/p sentence; (2) “human trafficking” or “trafficking in persons”/p restitution; (3) “human trafficking” or “trafficking in persons” and restitution; (4) “human trafficking” or “trafficking in persons” and restitution and “foreign national”; (5) restitution/p sentence and “foreign national.”

⁶ In Quebec, a victim can either apply for compensation or institute civil proceedings and needs to provide a notice of such election to the provincial authority (Crime Victims Compensation Act, s 8). If civil recovery falls short of what they would have received in compensation, they can claim the difference by applying for provincial compensation (s 8). In other provinces, no notice of election needs to be provided, but a provincial authority must be informed about the applicant’s civil lawsuit for damages (Crime Victim Assistance Act (BC), s 15; Victims’ Bill of Rights (Manitoba), s 57(1); Victims of Crime Act (Saskatchewan), s 20; Victims of Crime Act (PEI), s 32(4); Victims’ Rights and Services Act (Nova Scotia), s 11 N). If the applicant who received provincial compensation is subsequently awarded damages in a civil lawsuit, they must reimburse the province the amount of compensation received (Victims of Crime Act (Saskatchewan), s 19; Victims’ Bill of Rights (Manitoba), s 58(1)). An individual who decides to first pursue a civil lawsuit against the offender is not precluded from subsequently applying for compensation from a provincial victim fund, but compensation will be reduced by the amount of the award obtained in a civil suit (Victims’ Bill of Rights (Manitoba), s 56; Victims of Crime Act (Saskatchewan), s 17; Regulation 96–81 (New Brunswick), s 7; Victims of Crime Act (PEI), s 24; Victims’ Rights and Services Act (Nova Scotia), s 11E).

⁷ Not all workers have their permits tied to a particular employer. Persons who fall under the “International Mobility Program” (for example, working holiday participants from specified countries, international students on post-graduation work permits, refugees, and refugee claimants, and spouses of foreign-skilled workers or international students) can apply for an open work permit, which enables them to work for any employer and to change employers without the need to apply for a new work permit.

⁸ Although the bill repealing the Compensation for Victims of Crime Act became law on May 29, 2019, the Criminal Injuries Compensation Board continued operation until September 31, 2019. As of October 1, 2019, it was replaced with the Victim Quick Response Program+.

⁹ Under the new Victim Quick Response Program+, pain and suffering no longer appears as an eligible category (Government of Ontario, 2019b).

¹⁰ For example, the most serious injuries such as those to the spinal cord leading to the loss of motor or sensory function fall highest on the severity scale and can lead to an award of benefits between $45,000 and $110,000 (Regulation, 63/2004, Schedule 3). In contrast, minor injuries such as bruises, swelling, abrasions are among the lowest on the severity scale and qualify for no more than $500 in benefits (Regulation, 63/2004, Schedule 3).

¹¹ In New Brunswick, reporting and cooperation are preconditions for the award of compensation (Regulation 96–81 under the Victims Services Act, s 4). In PEI, a decision-maker may decline to recommend an award of compensation if the victim did not cooperate with the law enforcement or victim services (Victims of Crime Act (PEI), s 23(2)). In Ontario, following the changes mentioned in footnote 8, the requirement of reporting and cooperation appears to depend on the offense and it is not clear what the consequences of the lack of reporting/cooperation are. The only information currently available on the government website is as follows: “Depending on the crime, it must have been reported or disclosed to a police service, child protection authority domestic violence shelter, sexual assault centre, hospital, community agency or Indigenous organization that provides services to victims” (Government of Ontario, 2019b).

¹² The decision advised the applicant that they may contact the department to have the claim adjusted once the charges have been disposed of.

¹³ Until 2019, first instance decisions on compensation by victims of crime were made by the Criminal Injuries Compensation Board, which was part of the Social Justice Tribunals of Ontario. The 2019 legislative amendments changed the model of decision-making in Ontario whereby the responsibility for such decisions was transferred to the Victim Quick Response Program +. It is not clear how and in what detail statistics will be reported following this change.

¹⁴ Some research, however, suggests that despite being mandatory, such orders are not always made (Levy & Vandenberg, 2015; Sangalis, 2011).

¹⁵ In June 2019, a new provision of the Immigration and Refugee Protection Regulations came into force, allowing issuance of open work permits to migrant workers on employer-specific permits who are experiencing abuse, or who are at risk of abuse. An open work permit would allow the worker to leave the abusive employer and look for other employment while remaining in Canada. According to the IRCC, this new measure is intended to provide migrant workers with the means to leave an abusive employer, to facilitate their cooperation with the authorities without fear of retaliation from the employers, and to reduce the risk of workers engaging in unauthorized employment after leaving their abusive employer (Immigration Refugees and Citizenship Canada (IRCC), 2019). However, these open work permits are only a transitional measure and for survivors of human trafficking, a TRP route should be taken.