By Fay Faraday, Lawyer, Visiting Professor, Osgoode Hall Law School

For the last 25 years I have been working with low-wage migrant workers across all the different streams of temporary labour migration: the seasonal agricultural worker program, the live-in caregiver program, and the temporary foreign worker program. What I want to speak about today is the structural problems that make women migrants particularly vulnerable as targets of sexual violence. The two themes I want to address are the need to remove those structural terms and conditions built into the temporary labour migration programs that make women vulnerable targets for sexual violence and to think about ways to build practices that build security.

The things that make migrant workers vulnerable to abuse, and particularly women to sexual violence, are conditions of dependence, isolation, precarious immigration status in Canada, and the lack of effective routes to raise complaints about their treatment. Those are the four things I want to look at.

What I’d like to do is also connect this with an example coming out of the Presteve Foods fish processing plant in Wheatley, Ontario. It’s an example in which 42 Mexican and Thai women migrant workers came forward with complaints of not just employment violations, but sexual violence in the workplace. The employer was charged with 23 counts of sexual assault and 5 counts of common assault. In the end he pleaded guilty to common assault, but the allegations with respect to the sexual violence went forward in a human rights complaint before the Human Rights Tribunal in Ontario. What’s remarkable about the Presteve case is not so much the vulnerability and the abuse that the women faced, but the fact that they were able to come forward and file legal complaints. What’s remarkable about their situation is that they were unionized. They were able to bring those complaints forward with the backing of their union and community organizations in southern Ontario, but most women don’t have that support. As you’ll see, even with those supports, it was not sufficient for them.

The primary condition that makes women such vulnerable targets to sexual violence when they are migrants is the dependence that is created through the tied work permits. Under the temporary labour migration programs for low-wage workers, workers come here on permits that tie them exclusively to the single employer named on the permit, to the specific job named on the permit, in the location that’s identified in the permit, and for the time period on that temporary permit. That single condition creates an enormous imbalance of power that makes it virtually impossible for workers to resist the abuse that they are subject to.

For many workers, the temporary migration programs also either require as an element of a program that their housing is tied to the employer, or in practice it has been and is in fact provided by the employer. That again creates another link that makes them even more vulnerable.

The third factor I want to draw your attention to is the fact that most migrant workers who are coming into these low-wage jobs are paying predatory, extortionate recruitment fees to come here. I did a study published in April that showed that two-thirds of live-in caregivers who are coming into Canada are paying recruitment fees of between $3,500 to $5,000. The fees go up from there: $7,000 to $9,000 or $12,000 for an individual worker coming in.

For the workers in the other sectors, in food processing, in restaurants, in other low-wage jobs, there are similar rates of paying these illegal recruitment fees. That ties them even more closely to the employer because they’re unable to resist unfair treatment and sexual abuse on the job because they have to repay those recruitment loans.

What happened in Presteve is that these workers from Mexico and Thailand had come to Canada. They were tied to that employer. They had paid up to $10,000 in recruitment fees. When they arrived they were living in a bunkhouse on the employer’s property, so were completely isolated from the local community, and were subject to extensive practices of sexual violence and harassment on the job.

The inability to complain about that is very real because they can’t quit and get another job; they are tied to that employer. They can’t quit because they have to pay back the recruitment fees. They are isolated by language. They are isolated physically. They are unable to access settlement services, which is another real concern. The federal organizations that provide settlement services to workers are only available to people with permanent status, not to those with temporary status. There’s a real lack of protection for workers when they do come forward with claims of sexual violence.

In this case, the events of violence happened in 2007 and 2008, and the legal proceedings are still ongoing. There were 13 separate procedural motions before the Human Rights Tribunal. The final decision on the merits has still not come out. But in the course of that, these workers are on permits that are for only two years. The legal processes grind slowly. Many of the workers who were subject to the abuse have had to leave the country. There is no process in place to ensure protection for women when they do come forward. There’s no access to open work permits or other forms of security that would allow them to remain in Canada, to earn a living while they’re pursuing their legal claims, or to establish security so that they can pay off the fees that they had to pay to get to Canada.

What is important to recognize is that there are ways to change this. These recommendations have been made in the past. One of the key changes that needs to be made is to eliminate these tied work permits. There have been recommendations made repeatedly in the past for province-wide permits or sectoral permits that would allow workers to be able to move, or to change employers, when they are facing abuse. What’s needed is very strong legislative protection and enforcement to eradicate the practice of predatory recruitment fees. Workers need access to settlement services to overcome the isolation. They need access to unionization and community networks. They need access to information about what their rights are when they arrive in Canada, and about who can help them, so that when these situations of abuse arise, they have someone to go to. They need effective remedies to ensure that their rights are rectified, so that they’re not subject to a legal process that will drag on far longer than they can stay in the country. But ultimately, the bottom line is that they need access to routes to permanent status, because it is a matter of being trapped in a situation of temporariness, where all their entitlements to be in Canada and to have any rights in the country are dependent on ties to their employer.

The changes that have been made, both to the temporary foreign worker program, in June, and to the live-in caregiver program, have not in any way addressed the structural vulnerabilities that are created by those tied permits and temporariness.

[Photo Credit: Raul Lieberwirth]