Beyond Decriminalization: Sex-work, Human Rights and a New ...

PIVOT LEGAL SOCIETYwill affect whether or not she can be subject to removal from Canada for being convicted of criminalactivity within Canada. The right to remain in Canada will also be affected by the stage a sex workeris at in the immigration process. The following discussion provides a brief overview of a range ofpossible immigration scenarios, and discusses whether a criminal conviction can lead to removal ordeportation in each situation.First, a migrant sex worker may be in Canada without having adhered to the procedures set outin IRPA. In that case, she or he is in Canada illegally and can be detained and removed or deported atany time.Second, a migrant sex worker may come to Canada temporarily on a tourist, work or studentvisa, all of which provide them with permission to stay in Canada for a defined period. However,by committing a criminal offence in Canada, a sex worker or any other foreign national who is inCanada on a visa can be prosecuted, subject to enforcement action and required to leave the country. If a sex worker has applied to immigrate to Canada under one of the above-mentioned immigrantclasses and has been granted permanent resident status, she can be removed from Canada if foundto have engaged in “serious criminality.” “Serious criminality” is defined by IRPA as being convictedof an offence which is punishable by a maximum term of imprisonment of at least 10 years, or of anoffence for which a term of imprisonment of more than six months has been imposed. Therefore, a single conviction under the “communicating law” 10 or being found in a commonbawdy house, 11 will likely not result in removal from Canada because these offences carry a maximumsentence of six months imprisonment. 12 However, the sentence that may result from a convictionunder s. 210(1) of the Criminal Code, keeping a common bawdy house, 13 or s. 212 of the CriminalCode, procuring, 14 could meet the threshold for “serious criminality.” In either case, the fear thatdeportation may result from a criminal conviction will often have the effect of driving sex workersunderground.Refugee claimants can also be found to be inadmissible on the basis of “serious criminality.” 15 Ifthey are in the process of making a refugee claim and have yet to be granted permanent resident status,they can be found to be ineligible on the grounds of serious criminality. However, for refugees, “seriouscriminality” means having been convicted of an offence that is punishable by a maximum term ofimprisonment of at least 10 years and for which a sentence of at least two years was imposed. 16Migrant sex workers often fear arrest, detention and removal from Canada, and this fear can havethe effect of driving them underground, particularly when they are in Canada illegally or on temporaryvisas. While trying to hide from the authorities, migrant sex workers are often forced to workin very poor conditions, including dangerous and slavery-type conditions and may avoid seeking theassistance of law enforcement, emergency services, community organizations, and other social services.Human smuggling and traffickingDefinitions of trafficking in personsWhile the terms “smuggling” and “trafficking” are often used interchangeably, they are differentphenomena. The term “smuggling” is commonly employed to describe the movement of a personacross an international border in contravention of applicable immigration laws. Smuggling is as a IRPA, s. 36(2). IRPA, s. 36(1)(a).10 Criminal Code, s. 213.11 Criminal Code, s. 210(2)(b).12 Criminal Code, s. 787.13 Criminal Code, s. 210(1).14 Criminal Code, s. 212.15 IRPA, s. 101(1)(f).16 IRPA, s. 101(2)(a).198