Politicians, policy-makers must no longer remain silent as injustice persists

In October 2022, Jamaica sent a fact-finding delegation to investigate conditions on farms across Canada. After the release of an open letter penned by several Jamaican workers, as well as the persistent advocacy of injured migrant farm-workers, the fact-finding team released its findings to the public on April 28, 2023. To no one’s surprise, the report painted a rather glowing picture of the farm-worker programme, the employers and the operations of the programme.

Rather than address the systemic failings of managed migration schemes, once again the report paints a picture of a few rotten apples and blames workers for their living and working conditions.

The report alludes that workers are overwhelmingly happy, their housing is comfortable, they want more hours of work and receive treatment in a timely manner when injured or sick. A more fulsome review of the programme in its totality would have illustrated a very different and stark picture than that portrayed by the team. Speaking to workers interviewed by the fact-finding investigation, they feared that if they spoke freely, it could jeopardise their ability to work in Canada.

Most concerning are comments in the conclusion of the report dismissing allegations regarding the role of systemic racism in the operations of Canada’s farm-worker programmes and the notion of “forms of racism that is pervasive and deeply embedded in the policies, practices and laws governing the programme it bequeaths unfair treatment and oppressive conditions”. This contradicts the established literature regarding the role that race, racism and racialisation have played in the structure of Canada’s temporary migration schemes. Structural, systemic, and institutional racism cannot be illustrated by one specific visit over a two-week period, nor does it relate to the intentions of growers or policy-makers. Rather it’s related to the impact that policies disproportionately have on marginalised groups, such as farm-workers.

POWER IMBALANCE

In 2021 the federal government of Canada conducted a literature review examining the role that systemic racism has played in the SAWP. In its summary it observed the following:

• Most scholars observe that the SAWP has barely changed since its 1966 inception, except for an extension of participating countries. They also argue that the racist roots underpinning its creation continue to impact, and potentially inform, the current policy formation of this programme, as well as the disproportionate numbers of racialised and classed participants.

• The SAWP and the Caregiver Streams reveal discriminatory practices with regard to labour practices and access to services that impact short- and long-term health – processes that have been exacerbated by the COVID-19 pandemic. They also reveal a pattern of subordination of migrant workers to Canadian employers.

Multiple legal decisions illustrate the intersections of race and the asymmetrical power imbalance that exists between workers and employers. Recently in Logan v. Ontario (Solicitor General), 2022 HRTO 1004, the Human Rights Tribunal of Ontario concluded that

• Migrant agricultural workers are tied to a single employer. Employers are empowered to fire and deport workers without reason, at anytime worsening the power imbalances in the employment relationship.

Previously the Federal Court of Appeal in de Jesus et al. v. Canada (Attorney General), (2013) 454 N.R. 172 (FCA) also observed “the unique disadvantages in the Canadian labour market of … migrant workers.” These include:

• Ineligibility for many social benefits, including most unemployment insurance benefits; exclusion from many statutory protections of workers (including representation by a union); social isolation, and lack of access to telephones, computers, and urban centres; long and arduous working schedules with little free time; and fear of employer reprisal and deportation.

PERVASIVE EFFECTS

The fact-finding team’s report also recommended undertaking a comparative study of the farm-worker programmes in both Canada and the US. One wonders if such a study would gloss over the long reach of slavery and the post-slavery development of labour laws that exclude farm-workers from most labour provisions. Across the continent, farm-workers in both Canada and the United States are excluded from overtime, holiday, periods of rest and a whole series of other labour protections. In the US legal scholars, such as Marc Linder and Juan Perea, have written extensively regarding the pervasive effects of labour exclusions on black and Latin workers in the US.

This is not simply a dispute regarding optics, terms of references, methodologies or expanding the numbers of Caribbean liaison officers in Canada. It is about addressing the larger power imbalance that exists. At the height of the controversy, several courageous workers took to the airwaves to plead their cases to the public. The lived experiences of those who no longer can work nor provide for their families is paramount and must be prioritised. Clearly their demands for change were ignored by the fact-finding team. The report was released on April 28, the Day of Mourning. To honour the injured and those who have died Ned Livingstone Peart, Sheldon McKenzie, Omar Graham, Tyrone Lee Jackson and so many more, politicians and policy-makers must no longer remain silent as injustices persist in the fields, factories, greenhouses and farms across Canada.

Chris Ramsaroop is an organiser with the activist group Justice for Migrant workers, an instructor in the Caribbean Studies Program at the University of Toronto and a clinic instructor at the University of Windsor, Faculty of Law.