Legal issues related to refugee and migrant women and girls in Canada who are victims of human trafficking: A crossover study in refugee law and criminal law

About the project

In Canada, women and girls make up 96% of human-trafficking victims. In the Americas, human trafficking is only getting worse, while at the border, there is a significant increase in applications for asylum. Applicants include women and girls who claim to be or can be identified as human‑trafficking victims and survivors. Other non-refugee migrants have experienced human trafficking and are working with criminal justice authorities to address the issue. These women and girls face an increased risk of violence due to the intersection of their gender and status as a migrant.

Since 2005, human trafficking has been both a crime under Canadian criminal law and grounds for refugee status under refugee law. Both legal frameworks are based on distinct principles, objectives, ideas and mechanisms. Compartmentalized legal consideration raises real issues related to identifying, protecting and supporting the victim, as well as the victim’s access to justice.

Consequently, this study examines the state of knowledge of human trafficking in Canada, as experienced by refugee and migrant women and girls, taking into account both refugee law and criminal law. A review of the legal literature and sources from executive, legislative and judicial bodies for the period of 2012 to 2022 was conducted. Our synthesis reveals opportunities for the applicable law to address these issues and failures of those laws to guarantee the protection of these women and girls.

Key findings

  • The majority of the research used in the literature review is published in 12 legal and multidisciplinary databases on human trafficking, refugees and migrants and adopt a compartmentalized approach, i.e., they address the issue through the lens of either criminal law or refugee protection.
  • Very little research addresses the intersection of violence experienced by migrant or asylum‑seeking women who are also human-trafficking survivors and victims.
  • In terms of criminal law, our review of the judicial and administrative decisions selected shows that:
    • Decisions rarely address the victim’s specific situation, except to note whether she is a minor
    • Decisions do not discuss the offence within its specific context of gender-based violence
    • Decisions do not specify a victim’s migrant status or her national or ethnic origin
    • Decisions focus on criminalizing the perpetrators of the violence, without taking into account the situation of the victim of gender-based violence
  • In terms of refugee law, our research into the decisions in our review shows that:
    • Being a human-trafficking victim or being at risk of human trafficking is very rarely the only reason for refugee status—it is a factor
    • When decision-makers refer to and use Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board (IRB)—both the previous version of the guideline and the July 2022 version—the victim, potential victim or survivor of human trafficking’s circumstances appear to be better recognized
    • Refugee protection is more easily granted to women and girls who have already been victim to trafficking than girls and women who are potential victims
  • As a result, administrative and judicial practices take a compartmentalized view, through the lens of either refugee or criminal law

Policy implications

A cross‑analytical perspective is key to identifying the specifics of the gender-based violence experienced by refugee and migrant women and girls, because the intersection of their experience of violence and their migrant status shapes their legal and support needs. A cross‑analytical perspective also appears to be the key to adequately identifying real and potential victims. Consequently, policies should adopt a cross‑analytical perspective in order to:

  • Identify the most relevant, useful practices to understand the specific reality of these victims and survivors
  • Adequately meet their needs
  • Overcome the multiple complex roadblocks to access to justice, by accounting for the unique challenges they face upon arriving in Canada

Lastly, this study demonstrates the need to publish all official decisions, in particular in refugee law. The fact that IRB decisions are not systematically published is a major methodological constraint on any research into real or potential human-trafficking victims who are migrants, asylum-seekers or refugees.

Further information

Read the full report

Contact the researchers

Kristine Plouffe-Malette, Principal Investigator, Assistant Professor, Faculty of Law, Université de Sherbrooke:

Vanessa Tanguay, doctoral candidate, Faculty of Law, McGill University:

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