RECASTING THE TEMPORARY FOREIGN WORKER PROGRAM TO PUT CANADIANS FIRST
The Temporary Foreign Worker Program has come under fire from the Canadian public over the past few years for allowing employers to hire migrant workers when Canadian workers are available and facilitating the exploitation of migrant workers by Canadian employers. Addressing the injustice to both Canadians and migrant workers that arise when employers abuse the TFWP is necessary to uphold core Canadian values of equality and respect for diversity, history of multiculturalism, and commitment to social justice.
Yet, the changes to the TFWP primarily address the need to protect Canadians. Specifically, the Government of Canada has sent a clear message to employers: put Canadians first. The Government needs to broaden this message to ensure that Canadian employers who use the TFWP respect the human rights and dignity of migrant workers.
Why did the Canadian Government change the TFWP?
The Government of Canada recently announced a series of reforms to the Temporary Foreign Worker Program (TFWP). This follows widespread complaints that the program has caused distortions in the labour market, frozen wages at unrealistic levels, undermined efforts to improve employment rates among Canadian citizens, and enabled employers to abuse migrants.
The central purpose of the TFWP is to fill gaps in the Canadian labour market by allowing employers to hire foreign nationals as a ‘last and limited resort’ when no Canadians are available for a position. However, in an era of high unemployment among Canadians, the increased use of temporary foreign workers by Canadian employers over time has fuelled concerns that employers are abusing the program or using it in a way that was not intended by policy makers. A major concern for the Government is a “growing practice of employers building their business model on access to the TFWP”[1] – that is, employers abusing the TFWP to maximize their profits and becoming increasingly dependent on migrant workers, rather than providing employment opportunities and training to Canadian citizens.
While employers who use the TFWP have certainly hired an increasing number of migrant workers over time, the extent to which Canadian employers have hired migrant workers instead of available unemployed or underemployed Canadian citizens is unclear. A handful of Canadians have made allegations that their employer have laid off Canadian workers to hire foreign employees who are willing to work for lower wages or under conditions that fail to meet a minimum standard of acceptance among the Canadian workforce.
Stories of Canadians negatively affected by the TFWP have garnered weeks of media attention and public outrage. For instance, consider the story of a 58-year-old Saskatchewan waitress who lost her job at a Brothers Classic Grill and Pizza to a foreign worker after 28 years of loyalty to the company.[2] Another story that was discussed at length in the media concerned three McDonald’s franchises, with a pattern of giving temporary foreign workers more shifts and Canadians fewer shifts.[3]
In addition to public attention directed to the injustices felt by Canadians, stories that highlight the equally unfair treatment of migrant workers who come to Canada through the TFWP have sparked public debate. A notable example is the discrimination, harassment, and bullying temporary foreign workers suffered at the hands of a Tim Hortons franchise in British Columbia.[4]
However, last week, Jason Kenny, Minister of Employment and the Minister of Multiculturalism, was interrupted by protesters seconds into a speech on the changes to TFWP at a skills summit. The protesters expressed their disapproval of the TFWP and their opinion that the recent changes to the program are unacceptable, claiming that the Minister has: “entrenched a revolving door immigration system where migrants in low-skilled occupations come to the country, are exploited and then kicked out and replaced."[5]
What are the key Changes to the TFWP?
Nearly all of the changes to the TFWP that are effective immediately make it harder for employers to hire temporary foreign workers, particularly for low-wage positions. For example, it is now basically impossible for an employer to hire a temporary foreign worker as a cashier at a fast food restaurant.
Employers seeking to hire a temporary foreign worker must now complete a Labour Market Impact Assessment (LMIA) that replaces the Labour Market Opinion (LMO), required under the previous regime. This assessment is more comprehensive and rigorous than the LMO and requires the employer to provide specific data to show that a Canadian citizen is not available for the position, such as the number of Canadians who applied for the position, the number of Canadians interviewed for the position and an explanation of why the employer did not hire available Canadians.
Employment and Social Development Canada (ESDC), the government department responsible for processing LMIAs, will now refuse to process a LMIA for low-wage positions that require little education or training of applicants (such as food counter attendants, kitchen helpers, and grocery clerks) in economic regions where the unemployment rate is at or above 6 percent.
The fee of $1,000 CA that is charged by the government to process a new LMIA (per position) is prohibitive and likely to make employers think twice about hiring temporary foreign workers. Under the previous regime, the fee for a LMO was $275. The impact of this significant fee increase is further heightened for employers seeking to hire temporary foreign workers for low-wage positions. Under the new regime, the duration of low-wage work permits is a one year term. Under the old regime, all LMOs were valid for a period of two years.
Interestingly, farming or agricultural positions, such as those that fall within the Seasonal Agricultural Worker Program, are exempt from a LMIA fee. A possible explanation for this exemption is that few Canadians are willing to take positions in the farming and agricultural sector as a result of the harsh working conditions and low-wages.
Even if the more rigorous LMIA requirements and the higher fee do not dissuade employers from seeking to hire temporary foreign workers, a new cap will limit the number of low-wage temporary foreign workers an employer can hire. For employers with 10 or more employees, no more than 10 percent of their low-wage workforce can be temporary foreign workers. This cap does not apply to live-in caregivers who are typically employed by individuals or families to attend to the caregiving needs of elderly family members or young children. The likelihood that these employers will have more than 10 employees is small. Farming or agricultural positions are also exempt from this cap, a consideration that is likely due to the dearth of Canadians willing to perform this type of work.
Generally, employers seeking to hire temporary foreign workers for high-wage positions will face fewer barriers than those seeking to hire temporary foreign workers for low-wage positions. For the highest-paid positions, ESDC will actually make it easier for employers by introducing a 10-day service standard for processing LMIAs. While the LMIA fee is the same for low-wage and high-wage positions, the duration of the LMIA is two years for high-wage positions rather than the reduced duration of one year for low-wage positions. Unlike for low-wage positions, there is also no cap on the number of high-wage foreign workers an employer can hire.
However, employers seeking to hire high-wage temporary foreign workers face the additional requirement to submit a transition plan with their LMIA that explains the steps taken to reduce their reliance on access to the TFWP. This requirement aims to ensure Canadian employers engage in broad recruitment activities within Canada that involve reaching out to groups traditionally marginalized by society and under-represented in the workforce such as new immigrants, Aboriginal youth, and Canadians with disabilities.
With a view to reducing the risk that employers will abuse the TFWP, the Government expanded its inspection regime with enhanced enforcement mechanisms. Notably, the number of inspections of TFWP employers will increase such that one in four will be inspected per year. The Government will perform inspections randomly as well as in response to tips of employers abusing the TFWP. To increase the detection of abuse in the TFWP setting, the Government launched a confidential tip line as well as a Complaints Web page.
Moreover, the Government announced a commitment to increasing criminal investigations with a view in the TFWP setting. Criminal offenses set out in the IRPA include: employing a foreign national that is not authorized to work in Canada; counseling misrepresentation on immigration applications, and misrepresentation on immigration applications. Employers found in breach of these criminal offenses will face hefty fines up to $50,000 CA and imprisonment for up to two years. Employers found guilty of human trafficking may face fines up to $1 million CA and life imprisonment. Canada Boarder Services Agency (CBSA) will receive greater financial resources to investigate reports of suspected criminal activity.
What about the protection of migrant workers?
With the exception of measures that aim to crack down on human trafficking in the TFWP context, few changes to the TFWP address the need to ensure meaningful protection for the rights and dignity of migrant workers. While a confidential tip line exists for reporting abuse of the TFWP, this tip line is unlikely to adequately protect against the mistreatment of temporary foreign workers by employers. In many situations, migrant workers whose economic well-being depends on working in Canada, through the TFWP, will be unlikely to report abuse or mistreatment by their employer unless the Government of Canada offers such employees another avenue to continue working in Canada. Many important questions remain unanswered, such as: what measures will ensure the protection of migrant employees if their employer is the subject of a confidential tip or criminal investigation?
Conclusion
A stronger commitment to ensuring the rights and dignity of migrant workers who come to Canada through the TFWP is necessary. While “putting Canadians first” may appease the primary concerns of the Canadian public, ensuring fairness and appropriate standards for migrants working in Canada is equally important.
[1] Government of Canada, Overhauling the Temporary Foreign Worker Program: Putting Canadians First (June 25, 2014) at page 9, available online: http://publications.gc.ca/collections/collection_2015/edsc-esdc/Em4-1-2015-eng.pdf
[2] CBC News, Waitresses in Saskatchewan lose jobs to foreign workers (April 22, 2014), available online:http://www.cbc.ca/news/canada/saskatchewan/waitresses-in-saskatchewan-lose-jobs-to-foreign-workers-1.2615157
[3] CBC News, McDonald’s accused of favouring foreign workers (April 14, 2014), available online:http://www.cbc.ca/news/canada/british-columbia/mcdonald-s-accused-of-favouring-foreign-workers-1.2598684
[4] Vancouver Sun, Tim Hortons, McDonald’s face criticism over foreign worker program (April 24, 2014) available online:http://www.vancouversun.com/life/Hortons+McDonald+face+criticism+over+foreign+worker+program/9768838/story.html; Huffington Post, Who’s Looking Out For Time Hortons’ Temporary Foreign Workers? (December 13, 2012), available online: http://www.huffingtonpost.ca/2012/12/12/whos-looking-out-for-tim_n_2283042.html
[5] CBC News, Shortage of skilled workers could jeopardize the economy (June 26, 2014), available online at http://www.cbc.ca/news/politics/shortage-of-skilled-workers-could-jeopardize-the-economy-1.2687365
Refugees at Risk: Canada Prioritizes the Removal of Refugees
A recent initiative by the Canada Border Services Agency (CBSA) embodies a problematic approach to the treatment of refugees. This initiative prioritizes the “cessation” and “vacation” of refugee protection – that is, mechanisms for rejecting a refugee claim and issuing a removal order to a refugee, even to a refugee who has lived in Canada for several years and is a permanent resident. Specifically, CBSA can apply to “cease” a person’s refugee status – that is, strip a person of refugee status - where it believes that person has “voluntarily reavailed” himself or herself of the protection of their country of origin, or has become “re-established” in their country of origin or their country of nationality.[1] The scope of what constitutes reavailing oneself of protection or reestablishing oneself in a country of origin is unclear. Janet Dench, executive dieasrector of the Canadian Council for Refugees, notes a cessation case where a refugee lost her status because she returned to her country of origin (Iran) “briefly to care for a sick relative”.[2] This suggests the scope is unduly wide. CBSA can apply to “vacate” a past decision by the Immigration and Refugee Board (IRB) that was favorable to a refugee where it believes “the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter”.[3] The Refugee Protection Division of the IRB decides whether to allow applications by the CBSA. If the IRB allows an application, the person at issue will lose their refugee status and receive a removal order. CBSA aims to refer a “minimum of 875 cases” to the IRB for cessation or vacation this year.[4] This target is significantly higher than the number of such cases referred to the IRB in past year: for example, 192 cases were referred last year and 115 in 2011.[5]
This effort to boost the cessation and vacation of refugee status, particularly in combination with recent changes to the refugee system that place tight timeframes on refugee claimants, will have profound negative effects on the lives of many genuine refugees. Life is complex, particularly for persons who flee their country of origin as a result of persecution. Persons who claim refugee status immediately upon arrival to Canada must file initial documents within 15 days of their arrival.[6] Providing a succinct, coherent and comprehensive narrative to immigration officers who enforce space and time limits is a challenge. Language barriers and a rational fear or mistrust of authorities exacerbates this challenge. As Catherine Dauvergne (Law Professor, University of British Columbia) notes, completing the initial paperwork for a refugee claim within 15 days is “not possible”:
Forms will be incomplete and inaccurate. Vital supporting material will be unavailable. Decision makers will have to rely on less information than ever before. This will lead to more mistakes. In the refugee decision making, errors cost lives.[7]
Such errors will certainly result in harsh consequences for persons who are found to have misrepresented or withheld information in their refugee claim.
Sharry Aiken (Law Professor, Queen’s University) highlights that efforts to increase the cessation and vacation of refugee status is in line with the string of recent changes to the Canadian refugee system, all of which demonstrate the Canadian government is “keen on rescinding the welcome mat for refugees”.[8] She also notes that such quotas raise questions about the extent to which the IRB (a “quasi-judicial” body) is impervious to political interference and whether recent reforms achieve the key underlying objective of maintaining the integrity of the refugee system. Notably, if CBSA quadruples the number of cessation and vacation applications, it will result in “serious backlogs” for the IRB.[9] Delays do not reconcile with government rhetoric that asserts an ambition to achieve a faster and fairer refugee system. Delays also do not serve the interests of refugees who seek safety in Canada and, thus, undermine the Canadian “humanitarian tradition” and historical “openness towards refugees”.[10]
Moreover, this initiative is inconsistent with the spirit of international law, namely the UN Refugee Convention to which Canada is a Contracting State.[11] Under the Refugee Convention a refugee is any person who, “as a result of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country … [and] return to it”.[12] Canadian law defines a refugee in a similar way.[13] The Refugee Convention permits Contracting States to expel a refugee from their territory in exceptional situations on grounds of national security or public order. Where a Contracting State seeks to expel a refugee, it must provide the refugee an opportunity to “submit evidence to clear himself [or herself] and to appeal to and be represented for the purpose before the competent authority”.[14] The Contracting State must also allow such a refugee a reasonable period of time “to seek legal admission into another country”.[15] States cannot return a refugee to another State where “his [or her] life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion”, regardless of national security or public order concerns.[16] This prohibition against returning a person to a risk of facing torture is commonly referred to as the principle of non-refoulement. In comparison to the standard set by the Refugee Convention, Canada adopts a more expansive view of the situations in which refugees may receive removal orders and provides fewer procedural protections to refugees who receive removal orders. The extent to which a person is able to appeal a decision by the IRB that order cessation or vacation and the extent to which Canadian authorities will effectively respect the principle of non-refoulement is unclear. Refugees will require high quality legal assistance to effectively respond to a negative decision by the IRB.
In sum, this initiative, like many of the recent changes to Canada’s refugee system, reflects a problematic ‘tough on refugees’ agenda. While the objective of strengthening the integrity of the Canadian refugee system is laudable, it must not be achieved at the expense of fairness to refugees and of respect for international law.
[1] Immigration and Refugee Protection Act, SC 2011, c 27, s 108. [IRPA]
[2] Toby Cohen, “New Quota aimed at stripping refugee status raises concerns among advocates” (21 January 2014)O.canada.com, online: Ihttp://o.canada.com/news/national/new-quota-aimed-at-stripping-refugee-status-raises-concerns-among-advocates/. [Cohen]
[3] IRPA, supra note 1, s 109.
[4] Cohen, supra note 2.
[5] Ibid: This information was obtained by a Vancouver based lawyer through an access to information request.
[6] Citizenship Immigration Canada, “Backgrounder – Summary of Changes to Canada’s Refugee System”, online: http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-06-29b.asp.
[7] Catherine Dauvergne, “Refugee rules the end of Canada’s humanitarian tradition” (29 January 2013) The Globe and Mail, online: http://www.theglobeandmail.com/globe-debate/refugee-rules-the-end-of-canadas-humanitarian-tradition/article7937115/. [Dauvergne]
[8] Cohen, supra, note 2.
[9] Ibid.
[10] Dauvergne, supra, note 7.
[11] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, online: http://www.refworld.org/docid/3be01b964.html. [Refugee Convention]
[12] Ibid, article 1.
[13] IRPA, supra note 1, s 96.
[14] Refugee Convention, supra note 11, article 32.
[15] Ibid.
[16] Ibid, article 33.
Supreme Court of Canada heard Harkat an important case relating to fundamental rights, public safety, and national security
Background
On October 10th and 11th, the Supreme Court of Canada (SCC) heard Harkat (Re), an important case relating to fundamental rights, public safety, and national security.[1] Specifically, the case concerns the constitutionality of the security certificate process set out in sections 77 – 87.2 of the Immigration and Refugee Protection Act,[2] the nature and scope of informer privilege for CSIS informants, and the remedy available where CSIS unlawfully destroys original evidence important to the case.
Mr. Harkat is an Algerian citizen, with convention refugee status in Canada, who was named on a security certificate based on allegations that he engaged in terrorism and was a member of a terrorist organization.[3] Mr. Harkat argues that the security certificate scheme violates section 7 of the Charter, that the security certificate issued to him is unreasonable, and that he suffered an abuse of process because the Crown used summaries of original evidence that was unlawfully destroyed by CSIS to determine the case against him.
Security certificates are issued by the government as a means to remove non-citizens from Canada on “grounds of security, violating human or international rights, serious criminality, or organized criminality”[4] and “where the information to determine the case cannot be disclosed without endangering the safety of any person or national security”.[5] While the security certificate process has been in place since 1978, it was revised significantly in 2008 after the SCC held that it violated section 7 of the Charter (Charkaoui I):[6]
“…the secrecy required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government’s case. This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law … and fails to assure the fair hearing that s. 7 of the Charter requires”[7]
In an effort to balance concerns expressed by the SCC about fundamental rights of the individual with public safety and national security, the government introduced the special advocate system into the security certificate process. The role of a special advocate is to protect the interests of the named persons during closed proceedings[8] and, more specifically, to challenge the “relevance, reliability and sufficiency” of the information or evidence against the named person which is not disclosed.[9]
Despite these changes, the security certificate process has been criticized for failing to meaningfully respect the fundamental rights of the persons named on a security certificate. The consequences of a security certificate for the named person (detention and deportation) can be as serious as a criminal conviction, yet the procedural safeguards available fall short of standards in criminal processes. The standard of proof the government must satisfy to make the case is lower than in criminal proceedings[10] – a threshold of “reasonable grounds” rather than “beyond a reasonable doubt”. The rules of evidence are also more favorable to the government in the security certificate process than in the criminal setting. Notably, when determining the reasonableness of a security certificate, “a judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence”.[11] Moreover, unique rules govern the disclosure of evidence[12] and protection of information[13] in security certificate proceedings. Specifically, the government may rely on secret evidence to determine the case where disclosure “would be injurious to national security or endanger the safety of any person if disclosed”.[14]The scope of what is meant by “endanger any person” is not clear – the language is very broad but could be interpreted more narrowly as endangering human sources or informants.
Judicial History
The Federal Court of Appeal (FCA) upheld the finding of the Federal Court (FC) that the security certificate system is constitutional, but ordered that certain summaries made of destroyed originals be excluded as evidence and sent the case back to the FC for a new determination of the reasonableness of the security certificate.[15] The FCA also set aside the finding of the FC relating to the nature and scope of privilege for CSIS human sources.[16] The FC found that CSIS human sources are protected by privilege and that the “need to know” exception does not entitle special advocates to know the identity of or cross-examine such sources.[17] The FCA overturned this finding, stating that “CSIS human sources do not benefit from the police informer class privilege” or an analogous class privilege.[18]
Issues Before the SCC
1) Is the security certificate process constitutional?
2) Did Mr. Harkat suffer an abuse of process as a result of the destruction of original evidence by CSIS, summaries of which form the basis of the case against him?
3) What type of privilege applies to informants?
Position of the Parties
With respect to the constitutionality of the security certificate scheme, the Crown argues that special advocates and summaries of evidence are a “substantial substitute” for the knowledge and participation of the named person.[19]Through a designated judge of the Federal Court, the named person on a security certificate receives summaries of the information and evidence that forms the basis of the case again him or her.[20] Counsel for Mr. Harkat and several interveners argue that in practice, summaries of the evidence amount to “general allegations” or “bare asserts” which fail to meaningfully permit Mr. Harkat to know and meet the case against him.[21] Restrictions on the ability of the special advocate to communicate with the named person and to cross-examine informers undermines their ability to perform their role and responsibilities. Special advocates also face challenges relating to the ability to call witnesses, access to secret decisions, and resources (prohibition on having the assistance of junior counsel).[22] Accordingly, the current security certificate process is in conflict with the fundamental rights of individuals (including foreign nationals and convention refugees) in Canada, specifically the right to a fair hearing and process under section 7 of the Charter.
[1] Harkat (Re), 2012 FCA 122, [2012] 3 FCR 635. [Harkat FCA]
[2] Immigration and Refugee Protection Act, SC 2011, c 27. [IRPA]
[3] Ministers’ Factum on Appeal, at para 5, online: The Supreme Court of Canada <http://www.scc-csc.gc.ca>. [Minister’s Factum]
[4] Ibid, at s 77(1).
[5] Public Safety Canada, “Security certificates” (2013) online: Government of Canada <http://www.publicsafety.gc.ca>. See also IRPA, supra note 2, s 80.
[6] Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350.
[7] Ibid at para 65.
[8] IRPA, supra note 2, s 85.1(1).
[9] Ibid, s 85.1((2).
[10] Factum of the Intervener, Canadian Bar Association (Lorne Waldman and Peter Edelmann), at para 18, online: Supreme Court of Canada < http://www.scc-csc.gc.ca>. [CBA Factum]
[11] IRPA, supra note 2, s 83(1)(h).
[12] Ibid, s 77(2).
[13] Ibid, s 83.
[14] Ibid, s 77(2) and 83(1)(d).
[15] Harkat FCA, supra note 1, at 53 – 54, 157, 159 - 161.
[16] Ibid.
[17] Harkat (Re), 2009 FC 204, [2009] 4 FCR 370 at para 75.
[18] Harkat FCA, supra note 1, at 158.
[19] Minister’s Factum at paras 54 – 61.
[20] IRPA, supra note 2, s 77(2) and 83(1)(e).
[21] Factum of the Respondent/Appellant, Mohamed Harkat, at para 34, online: Supreme Court of Canada <http://www.scc-csc.gc.ca>.
[22] CBA Factum, supra note 10 at para 17.