RSS FeedThe new underclass
Who haven’t heard of immigration queue jumpers? The current federal government used this term when it shut down visa-free travel from the Czech Republic and Mexico. Federal officials blamed queue jumping refugee claimants. But if someone jumps the queue, it’s not refugees as much as it is temporary guest workers. And their biggest aider and abettor is Ottawa itself. Estimated 65,000 refugee claims were pending in 2008, but almost 192,519 foreigners came to Canada as temporary workers last year. A Toronto Star investigation revealed that many of them are vulnerable, abused, and prone to go underground, especially during a recession. The Canadian government wants to be in the labour supply business, but it’s not doing a good job.
The temp worker program lets employers select employees abroad if the federal labour officials certify a worker shortage in the employer’s industry. Today, most foreign workers go to farms, oil fields and into other low-skilled jobs, and many eventually end up in the underground economy. The current government in particular has let an unprecedented number of low-skilled migrants in Canada. Ottawa essentially acts as a giant recruitment agency that sizes up clients’ labour needs and fills them with people from foreign countries on condition that they go back home after two years. Foreign workers can’t switch jobs without the government’s permission. In Ontario and Alberta seasonal agricultural workers can’t join unions. And low-skilled workers can’t easily apply for permanent residence in Canada. After all, the idea is to bring in cyclical labour.
And cyclical labour they bring. Farms needs crop gatherers. Fast food joints need burger flippers. Energy companies need oil-sand workers. There are so many people in the world willing to work for much less than Canadians. Cheap labour, like any other cheap resource, can translate into lower costs across the production chain and lead to lower prices, economic growth, and general happiness. And the conventional wisdom goes that Canadians don’t want to do those jobs anyway. Temporary workers are also not supposed to strain our health care because they don’t grow old here. We have a constant supply of fresh, young, cheap labour thanks to the federal super recruiters in Ottawa. Right?
Wrong. The Toronto Star investigation revealed a widespread abuse of temporary foreign workers. Some employers take advantage of their weak bargaining power. Some employers refuse to pay their wages. Some pay much less than promised. Some fire workers without regard to their labour rights. Foreign workers often come from poor countries after borrowing thousands of dollars for the trip and middlemen’s fees. They feed their families who stayed behind. The law doesn’t let them switch employers easily. It’s not exactly a position of power in negotiating your job conditions. The Toronto Star report shows how many workers end up underground. They are the real queue jumpers, but who dare blame these abused people? Where they jump is not permanent residence in Canada but permanent limbo. They jump to a life of fear of authorities and working underground. Debts, hungry families overseas, and false hopes stop them from leaving.
They form a massive underclass—desperate and without rights—pushing many of them into crime. We have traditionally had two classes of people who lived in Canada: citizens and permanent residents. Their rights are similar but permanent residents lack some important rights that all citizens enjoy. Today we are adding a third class and even a fourth class way down the social ladder: the temporary workers with few rights and the temporary workers gone illegal—with almost no rights. Economic cycles come and go, but marginalized migrants will stay.
The government should get out of the labour supply business. If a job is low-paid, it doesn’t mean that Canadians don’t want to do it. It means the job must be better paid. And the market will take care of it without Ottawa’s bureaucrats crunching numbers in their spreadsheets. By importing massive cheap labour the federal government discourages higher productivity and wages. Unless a job involves killing people, there is hardly a qualified Canadian who wouldn’t take it for a fair wage. And if there are no takers, the job doesn’t belong in Canada.
The immigration policy should target the real issue instead of tampering with the labour market. And the real issue is the population growth. We desperately need more people in Canada, and the only realistic source is immigration. But we need immigrants with full rights, who are proud and secure and who understand and value the Canadian society. About 900,000 of potential permanent residents and future citizens are languishing in the huge backlog. In the meantime, Ottawa tempts hundreds of thousands of the world’s vulnerable to jump the queue and end up as marginalized migrants in Canada’s cities.
Mistakes
Woman declared dead gets apology
Ms. Towle, a resident of Kamloops, B.C., was somehow declared dead by Human Resources and Skills Development Canada in September. “This is an unfortunate situation, which we are diligently working to resolve,” said Melissa Hart, a spokeswoman for the government branch. “We have been in direct contact with the affected individual and have let them know that the mistake has been fixed. We have issued a letter of apology and have initiated a detailed internal review of the situation.”
Federal Securities Regulation
On Oct 22 an anonymous Law is Cool contributor posted a comment about the Federal Government’s intention to submit a reference to the SCC about whether a federal securities regulator is intra vires the Constitution. As expected, Quebec is going to resist any efforts by the federal government to regulate that which has traditionally been regulated by provinces, according to the Globe and Mail. However, there are a number of issues which always get glossed over when the matter is discussed. For example, the SEC is always cited as an example of a federal securities body. Somehow Canada is behind the times because we are not like the U.S. in this respect. However the SEC shares jurisdiction with State regulators, and I doubt that the Canadian government wishes to duplicate this model. The implicit intention of creating a federal regulator is that it be a single national regulator rather than one more regulator in addition to all of the provincial & territorial regulators.
This raises the sticky point about covering the field. It is one thing to ask the SCC if the federal government has the authority to regulate securities (and this is an empty exercise — few legal scholars doubt that the federal government can do so). It is another thing to ask the SCC to hand ALL authority to regulate everything associated with securities over to the federal government. This would be an enormous restructuring of the balance between national concerns and property & civil rights. There are political ramifications to such a ruling and no doubt the Court would prefer that such an invasive move be made through negotiations between governments rather than via a reference to the SCC.
It should be noted that securities regulation in Canada grew up under a provincial head of power. As a result, it is written in the language of property and civil rights. I have no idea if this is significant with respect to “federalizing” the laws, but I wonder. If the SCC decides that some securities transactions are federal and some are not, then the language of the laws could become significant. A ground-up rethinking and rewording might be in order.
The take-home point: The transition to a single Federal securities regulator seems quite simple at first blush, but it is not.
Shocking confession on witness stand
Ex-boyfriend confesses to child’s murder
Peter Small writes for the Toronto Star:
In a scene worthy of movie-of-the-week witness box confessions, the former boyfriend of a woman charged with fatally beating her 2-year-old daughter testified Wednesday he was the killer.
His testimony cannot be used “against him in other proceedings except prosecutions for perjury or giving contradictory evidence.”
Bailiffs behaving badly…
…Well, maybe not so much a bailiff, but a courtroom deputy. A report out of Maricopa County, Arizona amazingly shows Detention Officer Adam Stoddard taking a document from defence counsel’s files while she argues during a sentencing hearing.
While defence attorney Joanne Cuccia addresses the judge, the officer can be seen rifling through her file on the defence table. He then calls over another officer – again, still while Cuccia’s back is turned – to whom he passes a document from the file. Amazingly, this happens with neither Cuccia’s knowledge nor the judge’s, until the defendant himself speaks up!
As Cuccia attempts to assert her attorney-client privilege, the judge appears to want to defer to the officer’s discretion as to the extent of his duties. As reported by Heat City, the officer justified his search of the file and the taking of the document by the presence of certain “keywords” that led him to believe the defendant was a security risk. In a hearing that continues this week, the judge deciding the matter, has refused to consider potential contempt of court charges against the officers unless the contents of the document are revealed to evaluate any “keyword” – i.e. unless the defendant waives attorney-client privilege. The very privilege the officers are accused of violating. Bailiffs behaving badly? Attorney-client catch-22? In Maricopa County, Arizona I guess we’ll find out this week…
Immigration exploitation
Lack of oversight by the federal government has allowed foreign workers to be abused by their employers, Auditor General Sheila Fraser says in a scathing report on Canada’s immigration program.
Fraser said federal authorities do not follow up on job offers for foreign workers to see if the jobs offered are real, if the employer can afford promised wages and if there is a real need for the worker.
Two charges dropped, two to go
Two charges dropped against shopkeeper
Jennifer Yang writes:
Kidnapping and weapons charges were dropped this morning against a shopkeeper who was arrested for detaining a suspected shoplifter.
Will the Law Society of Upper Canada help this man help the homeless?
Law Times: Lawyer stymied in pro bono efforts
My thoughts on what looks, basically, like gatekeeping: The first comment has it right, the Law Society is not addressing the fact that putting someone like Mukhtiar Dahiya in an organization will do little to nothing to reduce the barriers homeless people have to accessing legal services. Here is an experienced lawyer, late in his career, who wishes to provide free legal services to a population that very few others want to/can provide counsel for. Put another way, he is contributing value to the legal profession. Especially as many in the field make grand pronouncements about social responsibility, a large basis upon which the profession itself seeks to maintain legitimacy. Mr. Dahiya has suggested the assistance/supervision of a mentor provided by the Law Society, effectively trying to accomodate their concerns — how about a little vice versa?
The Ocean Lady: Rethinking “Illegal” Migration in Canada
The recent arrival by boat in Vancouver of 76 Sri Lankan Tamil men has triggered heated debate about Canada’s refugee system. On October 28, the Liu Institute for Global Issues at the University of British Columbia held a forum on the topic, entitled “The “Ocean Lady”: A New Challenge of Illegal Migration on Canada’s West Coast?” One of the panellists, Daniel McLeod, who is duty counsel for the migrants, called these men “classic refugees,” because of the persecution they face in Sri Lanka. “It’s young Tamil men in Sri Lanka who are most at risk,” he said. He also observed that though “the Liberation Tigers of Tamil Eelam at their peak had probably 1500 to 2500 soldiers,” there are currently a quarter of a million Tamils awaiting security clearance by the Sri Lankan government in internment camps in the northern parts of the island.
McLeod, who is also an instructor in Refugee Law at UBC, noted that Canada is a signatory to the 1951 UN Convention on Refugees, which states that refugees cannot be penalised for entering the country through illegal means. Canada’s acceptance of the Convention was triggered by its refusal in 1939 to admit the St Louis, a boat containing 907 Jewish refugees, who were forced to return to Germany, where a third of them were killed in concentration camps. However, host and fellow-panellist, Benjamin Perrin, Assistant Professor at UBC Law and Faculty Associate at the Liu Institute, said that because the 1951 Convention only addresses the criminalisation of the entry, “it does not preclude countries from exercising detention where the identities of the individuals are uncertain or there are undetermined security risks.”
McLeod cautioned against assuming the men were Tamil Tigers. “It is common for people who have been forced to work as labourers for the Tigers, to be rounded up, arrested by the army, police, or the special task force – which is a police commando force – and simply disappear,” he said. When describing the men, nearly all of whom are currently confined in a Lower Mainland jail, McLeod said, “Some of them are students, some are farmers, some of them are clerks, office workers. They are all very scared.”
In Canada the acceptance rate for refugees is approximately 47%. In comparison, according to Andreas Schloenhardt, Associate Professor from University of Queensland, in Australia, that number is 80%. (However, Australia has a very different immigration system, which involves using whole islands far from the mainland as detention centres, so these numbers may not be analogous.) Yet the 2007 acceptance rate specifically for Sri Lankans in Canada was 97%.
In 1986, local fishermen came to the rescue of 154 Sri Lankans found floating off in lifeboats off the coast of Newfoundland. Those people were not subjected to what McLeod called “the political frenzy that’s occurring today,” suggesting that in the intervening two decades Canada’s policing of its borders has become progressively more exclusionary and reactionary. This fear was solidified on November 2, when Immigration Minister Jason Kenney, after accepting the fewest refugees in 10 years, dramatically cut the 2010 target number of refugees to be accepted by more than half. Opposition MPs assert that “by steeply dropping the targets, refusing to appoint Refugee Board members for 2 years, cutting $4 million in the department and allowing for board appointments not based on merit, Harper’s Conservative government is deliberately creating a crisis in the refugee system. The crisis is then used as an excuse to bring in draconian measures to close the door to the most needy and vulnerable.”
At the lecture, Perrin claimed that the focus on the “human interest story” of the 76 men, while legitimate, shifts attention away from an analysis of the means by which refugees move illegally between countries. He argued that “Canada must take action to discourage illegal migration and disrupt migrant smuggling operations where they do exist.” Further, Canada is a party to the 2004 UN Protocol against the Smuggling of Migrants by Land, Sea and Air, which, he said, “calls for [migrants] not to be criminalised, but to be treated humanely. But at the same time, it does not give them the right to temporary or permanent residence in Canada simply because they are smuggled.”
When one student then questioned him about the language used to describe the men, specifically the term “illegal migrant” (which was featured in the panel title), because of the way it implicitly criminalises the men, Perrin responded that “the title of the presentation has a question mark at the end of it, which was very deliberate.” Another audience member had a query about how that kind of vocabulary negatively affects media coverage. Perrin responded, “I think it’s important that before there’s been an impartial determination of the legal status of these individuals, that our language reflect that. So I’m not calling them refugees right now because I don’t know if they are.”
Perrin maintained that “there are advantages to cooperating with other countries, not just the source countries, but also other countries along the migrant smuggling chain,” because this would assist Canada in “creating proactive responses to protracted refugee situations.” One reporter asked, “How are we to trust the Sri Lankan government if they say these people are members of a terrorist organisation? [...] How do you trust a government which is treating a minority as harshly as them?” McLeod answered, “I hope we’re not going to trust the Si Lankan government to make that determination for us. There are a number of ways that Canada Border Services Agency can obtain information in normal ways.” These include taking fingerprints to run through international police records and analysing accents to determine where in Sri Lanka the men are from. However, the RCMP has already begun collaborating with the Sri Lankan government to identify the men.
“There are 16 million refugees worldwide as of June 2009. There’s another 26 million internally displaced persons, who don’t count as refugees,” said McLeod. “Hundreds, if not thousands, of irregular migrants are reported dead or missing every year,” said Perrin.
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A previous version of this article first appeared in Canadian Lawyer. This article was last modified on Nov 5.
Former OPP Commish to Review UWO Arrest…
The University of Western Ontario has hired former Ontario Provincial Police Commissioner and lawyer Gwen Boniface to review the violent arrest of Irnes Zeljkovic according to a London Free Press article and from UWO Communications.
The arrest garnered an overwhelming response from the students at UWO and media alike:
(This version of the video was used because the original has been flagged for violence and there are issues posting it here. For an opportunity to see the original, go to the link at the bottom of this post for my original article).
The review seeks to answer the following questions:
- Whether the situation was preventable.
- The training and resources available to campus police.
- Procedures for securing areas where an incident is occurring.
- Campus police co-ordination with London police.
It is also expected that students will be gathering at 4 p.m. at the University Community Centre once again to protest the treatment of Zeljkovic.
It has also been revealed that the London Police Service is conducting it’s own review into the arrest.
For a review of my original take of this article see this Law Is Cool article.
Media, free speech, and human rights
Media aren’t the best friends of human rights
Max Yalden was an Official Languages Commissioner in 1977-84 and the head of the Canadian Human Rights Commission in 1987-96. Recalling the Maclean’s case and other contentious issues of free speech versus human rights, Haroon Siddiqui reviews Yalden’s just-published memoir:
Yalden’s central message is that Canada’s human rights regime works reasonably well, notwithstanding the media’s hissy fit.
Judge found guilty of of corruption; 6500 convictions overturned
This story comes from Philadelphia:
All Ciavarella juvie convictions vacated
County judicial scandal ruling on about 6,500 cases is a victory for advocacy group Juvenile Law Center of Philadelphia
Seeking to remedy what it deemed a “travesty of justice,” the state Supreme Court on Thursday vacated the convictions of all juveniles who appeared before former Judge Mark Ciavarella from 2003 to 2008 and barred retrials in all but a small portion of those cases. [...]
The high court based its ruling on Ciavarella’s admission that he accepted millions of dollars from the owner and builder of two juvenile detention centers to which he sentenced youths [emphasis mine], as well as his “systematic” deprivation of the constitutional rights of juveniles who appeared before him. [...]
The District Attorney’s Office has come under fire for its failure to alert authorities to abuses of juveniles’ rights that were perpetrated under Ciavarella.
Some notes:
- What relations are judges allowed to have with detention centres? Is there legislature anywhere that makes explicit what judges may or may not accept from the owners, managers, etc of prisons? Was the issue here that Ciavarella accepted a hellish amount of money from the prison management, or that he accepted any at all? In other words, had he received a “reasonable” amount of money openly and transparently, would he have been alright?
- There’s no mention of what the judges’ punishments were, which suggests (that the paper thinks) that people are or should be satisfied with the overturning of the convictions. But that ignores the fact that these men negatively impacted the lives of at least 6,500 adolescents. At the very least, will these two be allowed to serve in court again? Will they serve any jail time?
- I wonder what remedies and health services will be offered to the people who were convicted under these men.
- I should look up Canadian judicial regulatory bodies. Suggestions?
Awards
Partners
sLaw- The Court
- British Columbia (Ministry of Education) v. Moore: Comparing Approaches to Comparator Groups in the Context of Anti-Discrimination Legislation
- So You Got Punched By a Cop: Disciplinary Action or Civil Suit? Issue Estoppel in Penner v. Niagara (Police Services Board), 2010 ONCA 616
- The ‘Return to Unanimity’ in Insite and Division of Powers Jurisprudence: Chief Justice McLachlin’s ‘Oversight’
- UofT
- UofC
- UofA
- LexMonitor
- blawg