THE VULNERABILITY OF DOMESTIC WORKERS: AN ANALYSIS OF LABOUR EXPLOITATION UNDER CANADA S LIVE-IN CAREGIVER PROGRAM

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1 THE VULNERABILITY OF DOMESTIC WORKERS: AN ANALYSIS OF LABOUR EXPLOITATION UNDER CANADA S LIVE-IN CAREGIVER PROGRAM by Yana Stratemeyer-Trinczek Bachelor of Arts, Vancouver Island University A MAJOR PAPER SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN CRIMINAL JUSTICE In the School of Criminology and Criminal Justice UNIVERSITY OF THE FRASER VALLEY Spring 2012 All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without permission of the author.

2 Abstract The Live-in Caregiver Program allows individuals to come from other countries, primarily the Philippines, and work until they become eligible for permanent residency. This paper asked two questions: (1) how Canadian laws can contribute to the vulnerability of live-in caregivers, and (2) what some of the preventive and ameliorative measures are that could reduce the vulnerability of live-in caregivers. Despite the LCP and other legislative protections, evidence exists that caregivers are being exploited and could potentially be trafficked by employers or employment agencies. International laws call for an approach to this problem that is comprehensive and balanced including prevention, deterrence, and victim protection. However, any legislative measures will not have the intended ameliorative effects if enforcement mechanisms are inadequate and vice versa. A number of problems were identified that make caregivers more vulnerable to exploitation by their employers and by employment agencies, such as: the live in requirement, which can make the caregiver more vulnerable to intentional and unintentional exploitation by the employer; the requirement to only work for the employer named on the work visa, making it difficult to change employment within the given time frame of three years, and; the lack of enforcement of existing policies and regulations. A number of suggestions and recommendations were made to address the problems identified, including: to consider implementing a national caregiving program; to monitor the effectiveness of Manitoba s Worker Recruitment and Protection Act; to evaluate the effectiveness of the Office to Combat Trafficking in Persons, and; to ensure the financial stability of caregiver advocate organizations. 1

3 In 2011, twenty six Filipina women launched a human rights complaint against John Aurora, owner of a Quebec employment recruitment agency, Super Nanny (PINAY, 2011; Venton- Rublee, 2011). The women in the Super Nanny case paid the agency $4,000 in addition to travel fees and were promised work under the Live-in Caregiver Program (LCP) (PINAY, 2011; Venton-Rublee, 2011). When the women arrived in Canada, however, jobs were not made available to them. Aurora forced the women to sign housing rental agreements and forced them to work for him to repay their debts (PINAY, 2011; Venton-Rublee, 2011). Mr. Aurora, however, passed away before the investigation was completed (PINAY, 2011; Venton-Rublee, 2011). The Super Nanny case demonstrates one example of exploitation that domestic labourers can face when they enter Canada via the LCP. The LCP, implemented in 1992, allows workers from other countries to come to Canada to provide caregiving and domestic assistance to Canadian families. The intent of the LCP is to address a shortage of workers in the field of caregiving and thereby, Canada s economic needs (Langevin and Belleau, 2001). Caregivers are primarily women (95%) and the majority (90%) come from the Philippines (Citizenship and Immigration Canada [CIC], 2009; Kelly, Park, de Leon and Priest, 2011). After working for two years, the caregiver can become eligible for permanent residence and, if approved, can begin to build a life in Canada. Due to some of the requirements of the LCP, academic researchers, such as Langevin and Belleau (2000) and Oxman-Martinez, Martinez, and Hanley (2001), have argued that the caregivers are in a position where they can easily be exploited by employers and employment agencies. For example, the live-in requirement increases the caregiver s dependence on the employer and also keeps him or her largely isolated from the community (Langevin and Belleau, 2000). Moreover, the current Canadian legislative framework appears to provide victim protection only indirectly (Barrett, 2

4 2010). Victims often do not report their experiences of exploitation, which means that authorities are unable to intervene (Jokinen, Ollus, and Aromaa, 2011). The division of powers between the federal government, which controls immigration, and the provincial and territorial governments, which regulate labour, can lead to problematic regulatory and enforcement gaps in the legislation. Although immigrant labour exploitation in Canada has been a concern for academic researchers since early 2000, it does not appear to have been so for governments. For example, the federal government indicated that human smuggling and human trafficking would be a priority in the 1 st session of the 41 st Parliament, but did not reference migrant labour specifically (Young, 2011). And though human trafficking is linked to labour exploitation they are not synonymous. Exploitation exists on a continuum with human trafficking at its most extreme and long hours and low wages on the opposite end (Jokinen et al., 2011). For the purposes of this paper, labour exploitation is defined as an act that causes an individual to provide labour or service by use of deception, coercion, threats, abuse of power, force or any other method that would cause the person to believe their safety to be threatened if they did not provide the labour or service (Criminal Code, R.S.C. 1985; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, 2001). There are several academic researchers who have indicated that the current model of the LCP poses a risk of exploitation to the live-in caregivers and who have put forth recommendations to improve the safety of the caregivers (see for example, Barrett, 2010; Chuang, 2006; Langevin and Belleau, 2000; Marsden, 2011). This paper will seek to expand on that research. 3

5 Concerns about labour exploitation are particularly salient because there are an increased number of temporary foreign workers (TFWs) entering Canada to meet labour demands (CIC, 2011a; Elgersma, 2007). In 2007, 199,165 TFWs were present in Canada. By 2011, the number had reached 300,111 (CIC, 2011a). This increase highlights Canada s arguably two-tiered system of entry between skilled workers and unskilled workers, as well as the difference in the rights of these workers (Marsden, 2011). Canada, as with many Western nations, cannot fill its employment needs with its own citizens and workers. Many European Union countries, as well as the United States, are using temporary migrant labour to meet employment demands (Gallotti, 2009). Domestic labour is one such area where countries are allowing migrants to work for temporary periods in order to fill labour shortages in this field (Gallotti, 2009). Canada developed the Temporary Foreign Worker scheme, of which the LCP is one program, in order to allow industries with labour shortages to find temporary employees (Brickner and Straehle, 2010). The vulnerability of these workers to labour exploitation, and in particular the situation of live-in caregivers, is assessed throughout this paper. A worker is considered vulnerable when she or he is in a position where she or he could be harmed either physically or emotionally (Stevenson, 2011). The Law Commission of Ontario (2009) has expanded this definition to suggest that vulnerable workers are those who do precarious work. Precarious work can be defined as short-term work with low pay where employees are unlikely to have a voice (Law Commission of Ontario, 2009). Although the Law Commission of Ontario does not specifically define live-in caregivers as those who are in precarious work, some academic researchers would suggest that because of some of the components of the LCP (such as the live-in requirement), caregivers do find themselves in precarious employment (see for example Langevin and Belleau, 4

6 2000; Marsden, 2011). Despite the LCP and other legislative protections, evidence also exists that caregivers are being exploited and could potentially be trafficked by employers or employment agencies. Many cases have been reported of caregivers who are recruited by employment agencies, charged fees up to $10,000 and released after being brought to Canada (Barrett, 2010; Brazao, 2009a; Perrin, 2011). International laws call for a comprehensive and balanced approach to this problem, including prevention, deterrence, and victim protection (Jokinen et al., 2011). However, as Marsden (2011) notes, any legislative measures will not have the intended ameliorative effects if enforcement mechanisms are inadequate or if adequate enforcement mechanisms exist, but the legislation is insufficient. The following will provide an analysis of the Canadian legislation governing the LCP and will seek to answer two questions: (1) how Canadian laws contribute to the vulnerability of livein caregivers, and (2) what some of the preventive and ameliorative measures are that could reduce the vulnerability of live-in caregivers. The analysis will begin with a history and overview of the LCP, as well as relevant international and domestic laws and enforcement mechanisms. An analysis will determine how vulnerable caregivers could be. Following an overview of a few ameliorative measures, it will conclude by identifying research gaps and making some policy recommendations. Although, a large part of this analysis will focus on federal Canadian (and not source country) laws, there will also be a discussion of the role that provincial and territorial governments can and have played increasing/decreasing the vulnerability of caregivers across the country. Limitations Due to the narrow focus of this paper, there are a number of limitations that must be addressed. First, this paper only examines the issue of exploitation and human trafficking under 5

7 the LCP as it relates to Canadian law. Sources countries, such as the Philippines, arguably carry some for the responsibility of protecting their citizens working abroad. This is an important limitation because an analysis of both source and demand countries is the only way to identify comprehensive solutions for the protection of migrant workers. Secondly, although mentioned as an issue of concern, Canada s two-tiered immigration system and resultant the potential for exploitation was not addressed within the scope of this analysis. Canada s immigration system should be researched further to identify potential abuses and possible recommendations. Finally, there are several promising practices both within and outside of Canada, however only a few relevant practices could be reviewed within the scope of this paper. Immigration to Canada Immigration to Canada and the Temporary Foreign Worker Program There are three main ways to immigrate to Canada: as a refugee seeking protection, as a family member sponsored by a Canadian citizen or permanent resident, and as an economic immigrant (CIC, 2012a). Economic immigrants, also known as skilled workers, are selected based on their work experience, education, and factors that demonstrate they can be economically viable in Canada (CIC, 2012a). Human Resources and Skills Development Canada s (HRSDC) National Occupational Classification (NOC) is a standardized framework for organizing employment into coherent categories that can be used to collect labour market information and classify workers who are migrating to Canada (Human Resources and Skills Development Canada [HRSDC], 2012). In order to immigrate as a skilled worker, an applicant s job must be either categorized as 0, A, or B on the NOC (CIC, 2012a). Categories C and D are considered low-skilled jobs and do not qualify for permanent residence. As such, there is an 6

8 increasingly formalized distinction between high-skilled and low-skilled workers (Marsden, 2011). The Temporary Foreign Worker Program (TFWP) provides a regulatory framework for the migration of TFWs (Marsden, 2011). This program is meant to allow foreign workers to enter Canada for employment in industries as a result of demonstrated temporary work shortages (Marsden, 2011). Marsden (2011) notes that from the outset in 1973, workers under TFWP (formerly the Non-Immigrant Employment Authorization Program) came for labour-type jobs while professional positions were filled by those who were able to immigrate as skilled workers. Marsden (2011) also found that highly-skilled workers were more likely to qualify for permanent residence and that this was further correlated by country of origin and gender. Specifically, workers from less economically developed countries and women were highly overrepresented as low-skilled workers. As a result of this classification system, Canada s immigration system has created a difference in worker entitlements for different categories of workers. For example, TFWs may be limited to the type of work they can do, the employer they can work for, and how long they can work in Canada (Nakache and Kinoshita, 2010). Because of the nature of the work visa, if a TFW changes employers, for instance, the individual cannot work while they wait for approval to work with a new employer (Nakache and Kinoshita, 2010). The loss of income could be problematic for the worker. Secondly, TFWs are required to pay into EI benefits, just like any other employee in Canada. However, in order to be eligible to claim benefits, the individual must have worked a certain number of hours (region specific) within the last 52 weeks. The worker must also demonstrate the she or he has been available and capable for work during the time of unemployment (Nakache and Kinoshita, 2010). A TFW may not be eligible because she or he 7

9 did not meet the required number of hours. However, even more problematic, given the restrictive nature of the work permit, the individual is not legally allowed to work. As noted by Nakache and Kinoshita (2010), the jurisprudence and policies of EI are incoherent and unclear with respect to the rights of TFWs. Finally, aside from the LCP, TFWs have few opportunities to migrate to Canada permanently (Marsden, 2011; Nakache and Kinoshita, 2010). Yet, the spouses of high-skilled workers can obtain open work permits and apply for permanent residency from within Canada (Nakache and Kinoshita, 2010). In practice then, Canada appears indifferent to the integration of TFWs, or low-skilled workers, but encourages the integration of high-skilled workers (Nakache and Kinoshita, 2010). This point is significant because there is an increasing demand for low-skilled workers in Canada as noted by Kelly et al. (2011) and Marsden (2011). In its 2012 budget, the federal government promised to make the immigration system faster by focusing on domestic labour and high-skilled foreign workers. The budget document stated that the TFWP would support economic growth by more effectively aligning it with labour market demands (Government of Canada, 2012). According to the budget, the Government will look at ways to ensure that businesses have made all reasonable efforts to recruit from the domestic labour force before accessing the Temporary Foreign Worker Program (Government of Canada, 2012, p. 153). According to Minister Kenney, in an interview with the Star editorial board, this new direction will result in less reliance on TFWs and Employment Insurance (EI) recipients will be expected to take what work is available ( Ottawa needs to balance common sense and compassion in immigration reform, 2012). With this direction in mind, it is critical to consider measures to better protect TFWs. 8

10 History of the Live-in Caregiver Program Domestic worker immigration has been in existence in Canada since 1897 when British single women were encouraged to migrate in order work as domestic servants and populate the British colony (Brickner and Straehle, 2010). In 1955, Canada entered into an agreement with the Governments of Jamaica and Barbados to enact the Caribbean Domestic Scheme as more and more women from these countries came to Canada as domestic workers (Brickner and Straehle, 2010; Macklin, 1999). This scheme had strict immigration rules, only allowing single women between years of age with no dependents and a grade eight education to immigrate to Canada (Brickner and Straehle, 2010). The scheme allowed the women to work as live-in domestic servants for at least one year, or until they were deemed by their employer as no longer useful (Brickner and Straehle, 2010; Macklin, 1999). In the 1970 s, as many of the women who had come to Canada as domestic labourers began to apply for family sponsorship, the federal government implemented the Temporary Employment Authorization Program (TEAP) in order to address the issue of family reunification (Brickner and Straehle, 2010). With the TEAP women were able to migrate to Canada using a temporary work visa, issued annually, but were denied the opportunity to obtain permanent resident status (Brickner and Straehle, 2010; Macklin, 1999). In 1981, the Foreign Domestic Movement (FDM) program was established allowing foreign domestic workers on a work visa to apply for permanent resident status from within Canada after two years of work (Brickner and Straehle, 2010; Macklin, 1999). These three federal programs eventually led to the implementation of the LCP in 1992, which made the eligibility requirements much stricter for immigration (Brickner and Straehle, 2010). 9

11 Overview of the Live-in Caregiver Program The LCP was introduced by the federal government in 1992 to address the shortage of caregivers for families in Canada in need of care for children, disabled, or elderly family members (Langevin and Belleau, 2000; Oxman-Martinez et al., 2001). The Immigration and Refugee Protection Regulations (SOR/2002) provide the legislative foundation for the LCP. The LCP was different from its predecessor programs in two important ways. First, the government increased the training requirements to qualify as domestic workers, arguing that workers with higher education would have less difficulty finding work upon obtaining permanent residency (Langevin and Belleau, 2000). To be considered under the new program the applicant was required to have completed the equivalent of a Canadian high school education and have one year experience of related employment, including six months of satisfactorily rated continuous employment with one employer in the three years immediately prior to applying for the employment authorization (Langevin and Belleau, 2000, p. 25). An applicant could also be considered if she or he had six months or more of recognized formal training in a field related to the employment (Langevin and Belleau, 2000). Secondly, the criterion for obtaining permanent resident status was amended (Langevin and Belleau, 2000). Under the LCP, the caregiver was required to complete two years of work with an approved employer within a three year period in order to qualify for permanent residence (Elgersma, 2007; Langevin and Belleau, 2000; Oxman- Martinez et al, 2001). A caregiver was required to live in the home of the employer and care for children, elderly, and/or disabled family members. The caregiver could only work for the employer named on his or her work permit and had to apply for a new work permit if he or she wanted to change employers or were dismissed (CIC, 2012b; Elgersma, 2007; Langevin and Belleau, 2000; Oxman-Martinez et al., 2001). If a caregiver was to seek a new employer, the 10

12 caregiver must find other employers who had a validated offer of employment, obtain a new work permit and pay the associated fees, and wait for at least thirty days during which the caregiver may not work (CIC, 2012b; Langevin and Belleau, 2000). Even though the change of employers could take some time, the caregiver was still required complete the twenty four months of work within three years in order to be eligible for permanent residency (Langevin and Belleau, 2000). In order for an employer to hire a foreign caregiver, they must have demonstrated that a sufficient effort was made to hire a Canadian individual with the necessary skills to fulfill the duties required by submitting an application for a Labour Market Opinion (LMO) to HRSDC (CIC, 2011b; Langevin and Belleau, 2000). In 2009, the federal Standing Committee on Temporary Foreign Workers heard from witnesses that were concerned that caregivers were vulnerable because of the limited amount of time they had (three years) to complete the requirements of the LCP (Parliament of Canada, 2009). Witnesses included advocacy organizations such as Grassroots Women, Philippine Women Centre, and Association des aides familiales du Québec (Parliament of Canada, 2009). As a result, the committee recommended that the time to complete the program requirement be extended. Acting on these committee recommendations Citizenship and Immigration Canada (CIC) implemented some changes to the LCP in April Whereas caregivers were previously required to complete two years of work within a three year period, these changes allow caregivers to complete two years of work within a four year period in order to qualify for permanent residence (CIC, 2010a). Overtime can also be used to apply for permanent residence sooner. Specifically, caregivers are now entitled to permanent residence after 3,900 hours over a minimum of 22 months, with a maximum of 390 overtime hours; or two years at regular fulltime rates (CIC, 2010a, para. 3). Other changes include items that must now be stipulated in 11

13 employment contracts such as: duties, accommodations, hours of work, wages, and holiday and sick leave entitlements for the first three months (Barrett, 2010; CIC, 2010a; Marsden, 2011). Finally, employers are now required to pay for transportation from the caregiver s home country to the place of work in Canada, private medical and workplace safety insurance and all recruitment fees associated with hiring a live-in caregiver (CIC, 2010a). According to CIC, these changes were implemented following extensive discussions with stakeholders to determine which changes were necessary to reduce the potential exploitative risks faced by caregivers that stemmed, in large part, from their vulnerability to exploitation (CIC, 2010a, para. 2; Barrett, 2010). Marsden (2011), however, believes that the available evidence of persistent exploitation of low-skilled workers suggests that these requirements are unlikely to have an ameliorative impact without an effective enforcement mechanism or viable legal remedies for workers (p. 50). Indeed, although HRSDC requires these measures, the Department is not responsible for enforcement, presumably because this does not fall under federal jurisdiction (Marsden, 2011). Despite the provisions of the LCP, exploitation has been documented and can occur in one of two ways: exploitation by employer or exploitation by employment agency. Academic researchers have cited concerns with both sources of exploitation (Langevin and Belleau, 2000; Marsden, 2011). In his book, Invisible Chains, Perrin (2011) outlines a number of other anecdotal experience which highlight the exploitation faced by live-in caregivers The stories included claims of working long hours, lacking sleep, feeling constantly threatened, being sexually assaulted, and having identification documents withheld (Perrin, 2011). One employer was said to have exploited six different caregivers within two years (Perrin, 2011). The Alberta Federation of Labour (2009) has also documented several instances of exploitation of temporary foreign workers in Alberta. In fact, the Canadian Labour Congress (2011) notes that 74% of 12

14 employers who hire temporary foreign workers violated the Alberta Employment Standards Act in Exploitation included low or unpaid wages, physical and psychological abuse, and inadequate living conditions (Canadian Labour Congress, 2011). As outlined by the Super Nanny case in the introduction, exploitation by employment agencies is another way in which those coming to Canada under the LCP can face abuse. Brazao (2009a), a journalist, found that employment agencies were consistently recruiting individuals from other countries for employment that did not exist and charged them up to $10,000 in fees. The workers were then forced to surrender their identification, housed in inadequate accommodations and were forced to work illegally to pay back the fees (Brazao, 2009a). The federal government promised to provide a black list of non-compliant and abusive employers, but this list has yet to be published (Hersch, 2011). This list is the result of consultations with CIC, HRSDC, and Canada Border Services Agency (Brazao, 2009b). The purpose of the blacklist is to ensure that employers who have exploited their employee(s) in some way would be prevented from sponsoring new migrant workers (Brazao, 2009b). Responsibility for enforcement is meant to fall to immigration officials (Brazao, 2009b). Between 1993 and 2009, 52,439 individuals were admitted to Canada under the LCP (CIC, 2009; Kelly et al., 2011) 1. In 2010, live-in caregivers comprised approximately 4% of all TFWs (CIC 2010b; CIC 2011a). Significant growth occurred when the number of caregivers jumped from 3,433 in 2007 to 6,157 in 2008 (CIC, 2009; CIC, 2010b; Kelly et al., 2011). According to CIC (2011c) this jump was the result of an increased demand for live-in caregivers, which could be partially attributed an ageing population. The LCP is primarily dominated by women, with only 5% percent of caregivers being men in 2009 (CIC, 2009; Kelly et al., 2011). Women may 1 The data used here refers to those who have obtained their permanent residency following the completion of the LCP requirements. 13

15 be more highly represented as caregivers because cultural expectations of traditional gender roles still persist, in that women are still considered to be naturally suited to domestic work (Brickner and Straehle, 2010; Jolly and Reeve, 2005). The country of origin for caregivers was primarily the Philippines (90%), followed by India, and the Slovak Republic (Kelly et al, 2011). LCP applicants were primarily destined for Ontario with 3,238 caregivers in British Columbia received 1,304 caregivers in 2009, and Alberta had 937. Relative to its population size, Quebec was underrepresented in the number of caregivers it received at 642 caregivers. One possible explanation for the low numbers of caregivers in Quebec could be the French language requirement, which many LCP applicants cannot meet. The rest of the provinces and territories have historically received fewer caregivers (CIC, 2009; Kelly et al., 2011). Compared with livein caregivers as a whole, the distribution of TFWs to destination provinces and territories is very similar (CIC, 2011a). This information is important in terms of determining where exploitation prevention efforts should be concentrated. One final trend that is interesting to note is that of age. It appears that the age of LCP applicants increased from 45 per cent of caregivers being under the age of 30 in 1993, to only 26 percent under 30 years of age in 2009 (CIC, 2011b; Kelly et al., 2011). Kelly et al. (2011) suggest that age is an important consideration as older LCP applicants may have limited employment prospects once they have completed the LCP. However, some researchers have also suggested that young age is a risk factor in labour exploitation and that the increased age of caregivers could be an ameliorative factor in terms of reducing the incidents of exploitation (Jokinen et al., 2011). 14

16 Theoretical Perspectives on Temporary Migrant Labour Temporary foreign workers in Canada face significant barriers to accessing social benefits. One way to consider these barriers is through an analysis of racialized spaces/discourses. Marsden (2011) uses a theoretical perspective from the field of geography developed by Richard Ford to examine how Canada s temporary, low-skilled work programs have created a racialized workforce. For the purposes of this theory, racialized refers to the differentiation or categorization of a specific group of people, in this case TFWs (Marsden, 2011). Ford argues that racially identified spaces are the result of racialized low-skilled workers being recruited from poor countries into very specific, low-waged occupations (Marsden, 2011). If TFWs tend to occupy low-skill, low-wage occupations, this allows Canadians to occupy higher-skilled, higherwaged employment (Marsden, 2011). Racially identified spaces are a result of policies rather than the consequences of individual choices (Marsden, 2011). Although a state may not have explicitly racist policies, the problem of racially identified spaces persists when the racial policies of previous regimes are ignored as the policies continue to accrue disproportionately to dominant groups (Marsden, 2011, p. 58). Essentially, the elimination of racist policies does not necessarily eliminate intolerance, discrimination, and inequality in society. Groups that were dominant in society before the elimination of racist policies will still experience an increase in economic and social benefits compared with minority groups. As Walia (2010) explains, racially characterizing a segment of the workforce as temporary, undesirable, and/or illegal, legitimizes their exploitative working conditions as a result of them being not-canadian. Marsden (2011) also promotes the theory of the logic of capital (economic policies) and the logic of territory (residence within fixed boundaries) as a way of describing Canada s migration policies. Marsden (2011) suggests that the way permanent migrants and temporary migrants are 15

17 chosen is a direct result of the need for economic maximization. The logic of capital, in relation to the logic of territory provides important explanatory factors for the growing proportion of the workers in Canada are temporary foreign workers (Marsden, 2011). Marsden (2011) argues that the fact that workers are authorized entry in numbers determined purely by the demand of employers in combination with the fact that such workers may be seen as more flexible and thus profitable underscores the prevalence of the logic of capital in current temporary migration policy (p. 61). Canada s migration policies therefore not only promote racial segregation, but are also economically based. This further devalues the work of domestic labourers in a gendered economy (Walia, 2010). Because women tend to be highly represented as unskilled migrants, especially in the LCP, it is important to briefly look at a gendered theoretical framework (Jolly and Reeves, 2005; CIC, 2009). A theoretical framework should include the intersection of the ethnic, religious and cultural characteristics of the women who could be exploited (Langevin and Belleau, 2000). Women may be resisting: the cultural expectation that daughters should provide for their family, to manage poverty, to escape sexual violence and abuse, to leave restrictions on their freedom or pressure to marry, and/or to escape the stigma of being single, widowed or divorced (Jolly and Reeve, 2005). Richer destination countries often see migration as a problem that must be controlled, especially in relation to national security (Jolly and Reeve, 2005). Stratified entry is generally the preferred method of these countries, including Canada, which thus includes stratified rights with gendered implications (Jolly and Reeve, 2005). Although stratified entry policies are seen as gender-neutral, Jolly and Reeve (2005) argue that they in fact affect women and men differently due to gender-segregated labour markets, differential skills levels and ideas of appropriate roles for women and men in sending and receiving countries (p.30). Most women would be excluded if only skilled workers were allowed entry as they often have less access to 16

18 educational opportunities (Jolly and Reeve, 2005). According to Brickner and Straehle (2010) women overwhelmingly still tend to perform caregiving and domestic labour because the notion exists that women are naturally suited for it. It is important to consider governmental policies from a gendered and racialized perspective, especially when dealing with the LCP as it is primarily women of colour who are entering Canada via this program. International Standards The Universal Declaration of Human Rights (UDHR) (1948), to which Canada is party, stipulates a foundation for the human rights conventions, declarations, and domestic legislation of State parties (United Nations, 1948). The UDHR represents the right of people to enjoy fundamental freedoms and equal dignity no matter their country of birth, ethnicity, gender, language or religion. Article 4 of the UDHR stipulates that no one is to be held in slavery or servitude and that such practice must be eradicated (United Nations, 1948). The UDHR has provided a framework to be used by states to develop domestic human rights legislation to protect their citizens. Since 1948 over 80 additional international declarations, conventions, and treaties have been developed with more specialized and focused topics, such as the two International Labour Organization (ILO) conventions discussed below. In 2002, Canada ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (also known as the Palermo Protocol). Barrett and Shaw (2011) consider the Protocol to be one of the strongest international attempts to deal with human trafficking. Although the Palermo Protocol deals with human trafficking, it is important to this study because the definition of human trafficking includes exploitation as one of three key definitional elements (Protocol to Prevent, Suppress and Punish Trafficking in 17

19 Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, 2001). Specifically, Article 3 of the Protocol defines human trafficking as: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, 2001, Article 3, emphasis added). The Palermo Protocol definition is clear that exploitation includes forced labour, servitude, and sexual exploitation which are directly relevant to the type of exploitation that caregivers could face. The Protocol calls for state parties to implement a balanced approach to combatting labour exploitation, including prevention strategies, deterrence mechanisms, and victim supports (Barrett, 2010). Jokinen, Ollus and Aromaa (2011) note that the Palermo Protocol does not provide a definition for forced labour. As such, they turned to the ILO (a specialized agency of the United Nations) Convention No. 29 which is viewed as an important international tool for dealing with forced labour (Jokinen et al., 2011). According to the ILO Forced Labour Convention, forced or compulsory labour (Article 2) shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily (International Labour Organization, 2005, p. 17). Canada has ratified this Convention (International Labour Organization, 2011a). Although the convention does not specifically examine labour that a person enters into voluntarily and which becomes forced labour after some time, it is certainly possible to imagine how, for example, a caregiver who 18

20 entered the LCP voluntarily could become exploited by not being paid the agreed upon wages for work done. The Convention provides a common understanding for cooperation between states and should be an important consideration for framing the discussion of the vulnerability of domestic workers. The exploitation of live-in caregivers does not occur in a vacuum and in order to fully prevent exploitation, states must cooperate in order to address the root causes as stipulated in the Palermo Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, 2001). In 2011, the ILO adopted a convention that would seek to defend equal rights for domestic workers (International Labour Organization, 2011b). The Convention, Concerning Decent Work for Domestic Workers, recognizes the contributions of domestic workers to the economy and considers the undervalued work done by these employees (International Labour Organization, 2011b). Article 3 stipulates that each member state must, with respect to domestic workers, respect, promote and realize the fundamental principles and rights at work, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced and compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation (International Labour Organization, 2011b, article 3(2)). The convention also contains provisions for fair working and adequate living conditions, ensuring that workers know their rights and obligations, as well as for regulating employment and recruiting agencies (International Labour Organization, 2011). This Convention has not been ratified by the Canadian government. National Laws As a signatory to the Palermo Protocol and the Forced Labour Convention, Canada has committed to implementing an approach that is consistent with the objectives of the Conventions. The Criminal Code of Canada and the Immigration and Refugee Protection Act, as 19

21 well as the Charter of Rights and Freedoms and the Canadian Human Rights Act, include provisions for exploitation and human trafficking and seek to protect the fundamental rights and freedoms of all persons. Criminal Legislation The Criminal Code of Canada (R.S.C. 1985) (hereafter referred to as the Criminal Code) contains a provision for exploitation in relation to three human trafficking offences and one that relates to exploitation. Sections to were added to the Criminal Code in 2005 to make human trafficking a punishable offence (Barnett, 2007, 2011; Barrett 2010; Barrett and Shaw, 2011). Human trafficking is defined as Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence (Criminal Code, R.C.S. 1985, s ). Withholding travel documents can also contribute to the exploitation of a worker and is criminalized in the Criminal Code (R.S.C. 1985) under section : Every person who conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person s identity or immigration status is guilty of an indictable offence. In addition, section of the Criminal Code (R.S.C. 1985) makes it an offence to gain a financial or material benefit for the purposes of human trafficking. This section could technically apply to a recruiter who charged a caregiver extremely high fees to come to Canada. Section (Criminal Code, R.S.C. 1985) further defines exploitation, for the purposes of human trafficking, as caus[ing] them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service. 20

22 Jokinen et al. (2011) suggest that exploitation is essentially a power imbalance between the victim and the perpetrator; in this case the caregiver and the employer or employment agency. There are various factors and circumstances that contribute to this imbalance, including: debt, employment relationship, residence in the home of the employer, threats, young age, economic status, and having the status of temporary worker (Barrett and Shaw, 2011; Jokinen et al., 2011). It is important to note that the definition of human trafficking in the Criminal Code does not require the movement of a person across borders or at all. Using this definition, it is possible to see how an employer, for example, could exploit a caregiver by threatening her safety if she does not provide the labour. The employer could go a step further by withholding the caregiver s identity and travel documents which would restrict the caregiver s movements and thereby violate the Criminal Code (R.S.C. 1985). Bill C-49 was the Act of Parliament that implemented the human trafficking provisions within the Criminal Code in The Bill received all party support in both the House of Commons and the Senate due to the pressing need for legislation to address human trafficking and smuggling, especially following the high profile incident of 600 Chinese migrants illegally entering Canada via the coast of British Columbia in 1999 (Barnett, 2006). The purpose of the Bill was to combat human trafficking by providing a means for effective prosecution and acting as a deterrent for potential human traffickers (Barnett, 2006). Some non-governmental organizations (NGOs), such as PINAY, which provide services to victims of trafficking, argued that the legislative provisions were impractical and did not address the realities of caregivers who were exploited (Barnett, 2006). For instance, the Criminal Code provisions ignore the fact that most caregivers willingly and legally enter into labour situations and may ultimately be exploited as part of that employment. These caregivers may be reluctant to voice their complaints because 21

23 they are afraid of losing their employment or status in Canada; a fact which is often forgotten in legislation that relies on clear forms of exploitation for effective prosecution (Barnett, 2006, para. 28). As Jokinen et al. (2011) note, labour exploitation exists on a continuum, where on the one hand the worker may work long hours for low wages and on the other where the labourer becomes a trafficked victim. The worker may feel coerced, pressured or threatened to provide the work. This pressure can come from the employer, the employment agency, or a criminal organization associated with the employer (Jokinen et al., 2011). The relationship between the employer and employee is not static and can vary in the amount of abuse experienced by the worker which can be more aggravated at one end of the continuum and more subtle on the other. As such it is important to have laws that take the continuum into account, which these criminal laws appear to do. It is important to understand that enforcement measures alone cannot stop exploitation and human trafficking. A balanced approach to combatting exploitation must take these complexities into account and address prevention and victim protection as well. Immigration Legislation The Immigration and Refugee Protection Act, (S.C. 2001) (IRPA) contains some provisions relating to human trafficking and trafficked individuals that offer some protections for temporary foreign workers. Section 121(1)(d) stipulates that in order to convict someone of human trafficking, the court must take into account whether a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence (IRPA, S.C. 2001). Section 118 of the IRPA (S.C. 2001) also refers to human trafficking, but focuses on cross-border trafficking which is not relevant in the case of workers entering Canada legally through the LCP (Barnett, 2007). 22

24 Most recently, Bill C-10, An Act to Enact the Justice for Victims of Terrorism Act and to Amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts (known as the Safe Streets and Communities Act or the Omnibus Crime Bill) was introduced by the federal government in September 2011 and was passed into law in March Section 206 of Bill C-10 amends section 30 of the IRPA (S.C. 2001). The amended section states that a foreign national must be authorized by the proper authority to work in Canada, given the following: (1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations. (1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal. (1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer. (1.4) The instructions shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation (An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drug an Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, 2012, Bill C-10, 41 st Parl., s. 206, (2009)). A press release issued by the department indicated that the intention of the Bill was to protect exotic dancers as well as other vulnerable and low-skilled workers, including labourers, from being exploited or abused (CIC, 2007). Although the press release specifically mentioned types of workers that would be protected by this Bill, the legislation itself did not (Canadian Bar Association, 2008). The Canadian Bar Association expressed concern over the vagueness of the instructions the Minister can issue including: the degree of risk that must exist before instructions can be issued, the standards that will be used for determining humiliating and degrading treatment, and to which types of workers the instructions would be extended to (for example, 23

25 live-in caregivers, agricultural workers, sex workers, etc.) (Canadian Bar Association, 2008). As with its earlier manifestations, the provisions in Bill C-10 are therefore potentially problematic in terms of the discretionary powers given to the Minister and the vague and unclear requirements which are incongruent with the stated intent of the legislation. The provisions in this Bill are simply too vague to determine if they will provide live-in caregivers with adequate protection from exploitation by their employers. Human Rights In terms of human rights legislation, federal legislation is primarily directed at organizations rather than individuals. Provincial and territorial human rights codes, discussed below, are meant to protect individuals from discrimination and unfair work practices. The Canadian Charter of Rights and Freedoms (Charter) (1982) provides some fundamental protections and a framework for other human rights legislation. The Charter is entrenched in Canada s Constitution Act, 1867, and as such, it is used by courts, tribunals, and commissions to protect the political and civil rights of Canadians. Enforcement Mechanisms Without adequate enforcement mechanisms, the legislative protections in place will not have the intended ameliorative effects. The Federal Interdepartmental Working Group on Trafficking in Person (IWGTIP) works to coordinate Canada s anti-trafficking efforts (Barnett, 2007; Barrett, 2010). The Royal Canadian Mounted Police s (RCMP) Human Trafficking National Coordination Centre (HTNCC) is IWGTIP s key enforcement partner and is mandated to coordinate law enforcement efforts to combat human trafficking (Barrett, 2010). The HTNCC suggest that there are roughly fifty five domestic cases and five international cases before the courts in which human trafficking specific charges have been laid (RCMP, 2011). 24

26 Although investigations to uncover incidents of human trafficking may also uncover cases of labour exploitation, there is no evidence to conclude that this has been the case. Unfortunately, there is no specific mechanism to enforce the rights of live-in caregivers. Provincial/Territorial Legislation Labour Legislation The LCP is governed by federal laws which regulate immigration and outline criminal violations in Canada. Beyond that, provincial and territorial labour laws govern the contracts between employer and employee, as well as the working conditions of the employment. Given the constraints of this paper, only British Columbia and Ontario labour legislation will be discussed as these provinces have historically had the highest numbers of caregivers (CIC, 2009). However, only Quebec s human rights legislation will be considered as it is the only province in Canada with a Human Rights Act. Manitoba s labour legislation will be discussed in the ameliorative measures section. In Ontario, caregivers are covered under the Employment Standards Act, 2000, but not under the Occupational Health and Safety Act, although they are still eligible for Workplace Safety Insurance Board coverage (Ontario Ministry of Labour, 2012). As such, caregivers are to be paid at least minimum wage and are eligible for overtime, vacation time, paid public holidays, and pregnancy/parental leave (Ontario Ministry of Labour, 2012). If the caregiver believes that the employer is not following the Employment Standards Act, the caregiver can try to resolve the issue by obtaining a self-help kit from the Ministry of Labour and/or can file a claim with the Ministry (Ontario Ministry of Labour, 2012). According to the Ontario Ministry of Labour (2012), after a claim is filed the assigned employment standards officer may contact the employer and the employee to mediate a resolution. If this fails, the office will initiate an investigation where both parties will have the opportunity to present 25