the vulnerability of domestic workers:...

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.

Vulnerability of Live-in Caregivers

1

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.


2

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,


3

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 1st session of the 41st 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.


4

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,


5

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 live-

in 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


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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


7

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


8

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.


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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 18-40 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).


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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


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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 2010. 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 full-

time rates” (CIC, 2010a, para. 3). Other changes include items that must now be stipulated in


12

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


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employers who hire temporary foreign workers violated the Alberta Employment Standards Act

in 2010. 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.


14

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 2009. 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 live-

in 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).


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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, higher-

waged 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


16

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


17

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


18


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


19

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


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


20

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 279.01 to 279.04 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. 279.01).

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 279.03:

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 279.02 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

279.04 (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.


21

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 2005. 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


22

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).


23

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 2012. 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, 41st 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,


24

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).


25

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


26

arguments and facts (Ontario Ministry of Labour, 2012). This process is onerous for the

caregiver and presents a number of potential problems. As the caregiver is living in the home of

the employer it would be difficult to initiate an investigation without the knowledge of the

employer. This could make for an awkward and uncomfortable work environment at best, and at

worst, a situation in which the caregiver feels, or is, threatened. Even if the caregiver is afforded

a secure room, she or he may not have access to their own telephone line, computer and internet,

and mailbox, further decreasing his or her privacy.

In March 2010 the Government of Ontario enacted legislation for foreign nationals that

makes it an offence to confiscate personal documents and to charge an employee a recruitment or

placement fee for finding work (Barrett, 2010; Ontario Ministry of Labour, 2011). A quick facts

document about this legislation for foreign live-in caregivers can be found on the Ontario

Ministry of Labour (2011) website in Spanish, Filipino, and Hindi. However, as with Ontario’s

general labour legislation, the Employment Protection for Foreign Nationals Act (Live-in

Caregivers and Others), 2009, this legislation places the onus on the caregiver to file a claim if

that person believes the Act has been violated (Ontario Ministry of Labour, 2011). This onus

carries the same concerns and potential barriers as mentioned previously in terms of access,

understanding, and privacy.

The intent of British Columbia’s Employment Standards Act, 1996, is to ensure that

employees are compensated, that they are treated fairly, to encourage open communication

between employers and employees, to assist employees in meeting family responsibilities, and to

provide fair and efficient procedures for resolving disputes (Employment Standards Act,

R.S.B.C. 1996). The provisions in the Act are similar to Ontario’s Employment Standards Act,

2000 in terms of vacation time, parental leave, minimum wage provisions, and overtime


27

(Employment Standards Act, R.S.B.C. 1996). British Columbia does not have any legislation

specifically targeted to temporary foreign workers, but the Act does stipulate that domestic

workers must agree to a contract outlining the expectations and working requirements of their

employment (Employment Standards Act, R.S.B.C. 1996, s. 14). In addition, employees,

including temporary foreign workers, cannot be charged a fee for job placement (Employment

Standards Act, R.S.B.C. 1996). Once again the onus is on the employee to file a complaint with

the Employment Standards Branch (Employment Standards Act, R.S.B.C. 1996). Once a

complaint has been filed, the Employment Standards Director makes a decision as to whether or

not to investigate the complaint. The Director can assist in settling an agreement between

employer and employee and make a determination as to the consequences of violating the Act (if

this is the case) (Employment Standards Act, R.S.B.C. 1996).

In addition to labour legislation, Ontario and British Columbia both have Human Rights

Tribunals which are mandated to review and rule on human rights complaints and provide

workers with another avenue for seeking restitution. However, given the problems outlined

above, it is questionable how much protection is garnered under provincial labour and human

rights legislation.

Human Rights

Although Quebec is underrepresented in the number of live-in caregivers, it is the only

province with a Human Rights Act. Quebec’s Human Rights Act functions to uphold the

fundamental rights and freedoms of its citizens (Charter of Human Rights and Freedoms, R.S.Q.

2012). The Charter of Human Rights and Freedoms (R.S.Q. 2012) protects equal wages and the

right to “fair and reasonable conditions of employment which have proper regard for [the

employee’s] health, safety and physical well-being” (s. 46). Human Rights Tribunals are set up


28

to primarily deal with exploitation relating to employment (Charter of Human Rights and

Freedoms, R.S.Q. 2012). This human rights legislation is arguably comprehensive enough to

fulfil Canada’s international obligations of protecting human rights, but also affords some

measure of protection to live-in caregivers who have been exploited. One example of this is the

Super Nanny case discussed in the introduction in terms of the caregivers being able to find a

legal means of seeking reparation for the exploitation they suffered. The ILO Convention,

Concerning Decent Work for Domestic Workers, stipulates the importance of regulation

employment and recruiting agencies, providing fair working and adequate living conditions, and

ensuring that the rights and obligations of workers is known to them (International Labour

Organization, 2011b). Although Canada has not ratified this treaty, provincial legislation

technically covers most of these stipulations, but only two provinces, Manitoba and Ontario,

have legislation regulating employment agencies.

Enforcement Mechanisms

There are no specific enforcement mechanisms for worker exploitation aside from the

provincial employment standards officers whose powers are limited to investigations and

assisting in settling agreements, but not enforcing them. However there are some provincial

enforcement mechanisms in existence which target human trafficking. The Office to Combat

Trafficking of Persons (OCTIP) in British Columbia is the only provincial organization in

Canada responsible for the province’s overall coordination and strategy to deal with human

trafficking (Barrett, 2010). Funding is provided by the B.C. Ministry of Public Safety and

Solicitor General and the B.C. Ministry of Children and Family Development and OCTIP reports

to the Deputy Solicitor General (Barrett, 2010). OCTIP collaborates with government, law

enforcement, and local community organizations in order to directly assist victims (Barrett,


29

2010). In addition, a regular newsletter produced by OCTIP is meant to update various

enforcement agencies, NGOs, and other stakeholders on their activities (OCTIP, 2010). OCTIP

(2011b) also recently launched an online human trafficking training course which was designed

to improve the identification, assistance and protection of victims of human trafficking by first

responders and service providers. OCTIP provides direct assistance to trafficking victims and a

24-hour victim support hotline (BC Association of Social Workers, 2011). OCTIP, which opened

in 2007, claims to have assisted in six cases involving human trafficking, four of which involved

labour trafficking, and many other potentially trafficked victims (Barrett, 2010). Although six

cases may seem insignificant, Perrin (2011) notes that this can be partially attributed to OCTIP’s

difficulties in engaging partners. One of OCTIP’s immediate concerns is the vulnerability faced

by live-in caregivers (Perrin, 2011). The British Columbia Attorney General cut funding to

OCTIP, eliminating the role of executive director, during the summer of 2011 (BC Association

of Social Workers, 2011). Left with a meagre budget of $300,000 per year and two full-time

employees in Vancouver, OCTIP no longer has the resources to be as effective at preventing

trafficking, enforcing the laws, and protecting victims (BC Association of Social Workers,

2011).

Other provinces have also developed organizations to combat human trafficking. For

example, Alberta has the Action Coalition on Human Trafficking, which is a coalition of

government agencies, NGOs, survivors of trafficking and the general public (Barnett, 2007,

2011; Barrett, 2010). Manitoba has the Human Trafficking Response Team, which also works

with different levels of government, law enforcement and NGOs (Barnett, 2007, 2011; Barrett,

2010). The comité interministériel sur la traite des femmes migrantes, chaired by the Quebec

Ministry of Justice, is working on establishing a response to trafficking victims’ needs (Barrett,


30

2010). There certainly could not be a “cookie-cutter” approach to all regions and to all forms of

trafficking and exploitation. Indeed, well-coordinated provincial and federal efforts could

prevent inefficiencies and duplication and increase successes in terms of enforcement and

prosecution. However, these enforcement mechanisms do not focus on labour exploitation

specifically which may weaken their ability to deal with labour exploitation under the LCP.

Analysis

Despite the protection measures in federal and provincial laws, there still appear to be a gaps

in legislation when it comes to the relationship between live-in caregivers and employment

agencies. According to Barrett and Shaw (2011) there are two types of employment agencies.

First, some recruitment agencies act work on behalf of the employer to entice individuals to work

as caregivers and assist with visa applications of incoming domestic workers. This type of

agency has been accused of charging extremely high fees for services (Barrett and Shaw, 2011).

Second, labour leasing companies apply for LMOs, train the worker, and establish a contract

between the company and the employer. Labour leasing companies also provide recruitment

services. Both of these types of agencies will often lure women with the promise of high wages

and then subject them to high fees, poor accommodation, and wage garnishing (Barrett and

Shaw, 2011).

Evelyn Calugay, president of PINAY, a caregiver advocacy organization, noted that Filipina

women are often lured to Canada by recruitment agencies with the promise of permanent

residency within 36 months and a better life (Venton-Rublee, 2011). Victim advocates such as

PINAY have called for stricter regulation of employment recruitment agencies in order to

prevent these types of exploitative situations (Langevin and Belleau, 2000; Venton-Rublee,

2011). According to a year-long journalistic investigation by the Star, a national news


31

publication, the practice of recruiting caregivers and then releasing them upon arrival in Canada,

but still charging them extremely high recruiting fees, appears to be very common (Barrett, 2010;

Brazao, 2009a). The caregivers are told that their employer no longer requires their services,

though that they are still required pay their bills (Brazao, 2009a). In 2009, Ontario implemented

legislation that would require the employer to pay recruitment fees, however recruiters quickly

changed to calling them “training fees” or “orientation fees” in an effort to bypass the legislation

(Barrett, 2010; Brazao, 2009a).

The LCP also has some structural weaknesses that contribute to the vulnerability of the

caregivers. Brickner and Straehle (2010) argue that the live-in requirement of this program

means that caregivers often work long hours without proper breaks. This requirement can also

cause the caregiver’s status to become blurred leading “some employers to think of them as

family who want to work, rather than employees with set hours” (Brickner and Straehle, 2010, p.

314). This common scenario is important to note because it demonstrates that caregivers under

this program can be vulnerable to exploitation even if the abuses are unintentional. Oxman-

Martinez et al. (2001) further argue that the live-in requirement, coupled with the requirement

that the caregiver only work for the employer named on the work visa, creates conditions for

exploitation. The social isolation created by these two requirements makes it very difficult for

the caregiver to know and defend their rights (Oxman- Martinez et al., 2001). Simply because

migrant workers are not citizens they may feel excluded or misunderstand their rights and

entitlements (Elgersma, 2007). Migrant workers may be afraid of the potential consequence and

sanctions if they raised concerns about their working conditions (Elgersma, 2007). Although

employers are responsible for ensuring that the migrant workers in their employ receive

information about their rights and obligations, there is little follow through to ensure that this


32

occurs (Elgersma, 2007). This lack of information has the potential to leave the worker more

vulnerable to exploitation.

There are certainly some gaps in both the legislation and enforcement mechanisms which

leave caregivers more vulnerable. For example, there may be instances where the federal

government is not jurisdictionally responsible for certain aspects of the LCP, such as the

regulation of employment agencies, yet other levels of government have not been willing to take

legislative responsibility. It is in this way that a federalist system can be problematic. In addition,

there are some aspects of the LCP that make caregivers more vulnerable. The live-in requirement

and the mobility restrictions in terms of changing employers, make it difficult for a caregiver to

seek help or to leave an employer if she or he is in an abusive situation. Finally, by virtue of the

caregivers’ status as temporary workers, they are simply not afforded the same protections by the

state as Canadian citizens.

Preventive and Ameliorative Measures to Reduce Vulnerability of Caregivers

Despite the potential for exploitation, there are a number of promising preventive and

ameliorative measures that can help to reduce the risk. Some of these measures have been

mentioned previously, such as OCTIP. OCTIP was highly innovative and proactive in terms of

its focus on connecting with community organizations, sharing information via its regular

newsletter, and utilizing its training tools. One of OCTIP’s main areas of concern was the

vulnerability of live-in caregivers and domestic servants (Perrin, 2011). As one of the few

comprehensive promising practices in Canada, OCTIP could be considered as a model for other

provinces to assist with potential exploitation and human trafficking cases. Further evaluation is

needed to determine the strengths and weaknesses of this model.


33

As another example, the Manitoba Government introduced legislation in 2009 that was

intended to reduce some of the vulnerability faced by caregivers. The Worker Recruitment and

Protection Act (S.M. 2008) (WRPA) stipulates that employment agencies and foreign recruitment

agencies must be licensed and employers must be registered by the province (WRPA, S.M.

2008). Upon application for the licence and registration, in which the applicant provides credit

information and securities, the Director of Employment Standards has the power to investigate

the financial history, competence, and character of the applicant (WRPA, S.M. 2008). Foreign

workers seeking employment cannot be charged recruitment or travel fees and the employer

cannot reduce or eliminate wages for a foreign worker under the WRPA (S.M. 2008). If the

employer contravenes the Act, the Director has the power to use the letters of credit, cash or

other securities provided at the time of application, in order to pay the foreign worker the amount

owed for travel and/or wages (WRPA, S.M. 2008). Essentially, this Act works to fill some of the

gaps left by federal legislation and the Manitoba Employment Standards Act; thereby providing

more checks and balances in the process of hiring and recruiting foreign workers and monitoring

their employment. Despite the measures in this Act, however, Marsden (2011) notes that it may

have limited effectiveness if authorities do not coordinate their activities with the federal

agencies responsible for issuing work permits and LMOs. In addition, the measures in this Act

could also be inaccessible to migrants who are afraid of losing their temporary work status, who

do not know about it, or who are afraid to report their employer (Marsden, 2011).

In order to address the barriers face in reporting abuses to designated authorities, Barrett

(2010) suggests a practice used in the United Kingdom that could be applied to the LCP, as well

as other temporary foreign worker schemes. The Gangmasters Licensing Authority (GLA) in the

U.K. regulates employment agencies, service providers, and the employers in sectors known to


34

have migrant labourers. The intent of the GLA is to “ensure the welfare of labourers and the

legality of operations within the designated industries” (Barrett, 2010, p. 30). This purpose is

achieved by: “making all labour standards publicly available; ensuring that employers are aware

of these standards; conducting inspections, including surprise inspections, to ensure ongoing

compliance, [and]; imposing penalties, including jail sentences for abusive practices” (Barrett,

2010, p. 30). Employers who fail to comply with the labour standards by exploiting their workers

in any way, will lose their licence to operate. The revocation of a licence is subsequently

published online (Barrett, 2010). The online public register allows the public to be involved in

regulating labour providers. As of January 2012, one hundred sixty five licences from various

employers had been revoked since March 2007 for violating the Gangmaster Act (Gangmasters

Licensing Authority, 2012). To operate without a licence is a criminal offence under the

Gangmaster Act (Barrett, 2010).

Still, there are some drawbacks to the GLA resulting from limited resources. For instance,

following an audit of the employer, there are no follow-up inspections which may reduce the

reliability of GLA licensee compliance measures (Barrett, 2010). There is also still an estimated

25% of labour that remains unlicensed, although it is unclear what type of labour is included in

this statistic (Barrett, 2010). Despite these limitations, Barrett (2010) argues that the GLA still

offers a promising solution to labour trafficking and exploitation which could be applied to the

LCP in Canada.

Some academic researchers have suggested that Canada has a shortage of domestic labourers

because caregiving work is undervalued by Canadians, and therefore wages tend to be low

(Brickner and Straehle, 2010; Langevin and Belleau, 2000). Quebec has introduced a provincial

program which may help to restore some of the value in caregiving work. The province


35

implemented a comprehensive childcare program that includes all day kindgergarten, early

childhood education and care, and before and after school programs for children up to 12 years

of age (Fortin, Godbout, and St-Cerny, 2011). Since 2004 these programs have been available at

a cost of seven dollars per day (Fortin et al., 2011). The early childhood education program has

three macroeconomic impacts: 1) on women’s labour force participation, 2) on federal and

provincial finances, and 3) on gross provincial income (Fortin et al., 2011). First, the income

generated by women participating in the labour force, rather than caring for their children,

generates increased tax revenues in all types of tax and lower government transfers and credits at

all levels of government (Fortin et al., 2011). Fortin et al. (2011) found that the program added

1.7% to Quebec’s gross provincial income in 2008 and that for every dollar spent on early

childhood education, the provincial government gained $1.05 and the federal gained $.44. Aside

from the economic benefits, this program assists in making childcare work more valued and

more valuable because wages are increased and it is seen as contributing to the success future

generations. To summarize, by 2008 this program had increased women’s employment by

70,000 (3.8%), increased the provincial GDP by $5.2 billion (1.7%), it was self-financing within

the provincial budget, and procuring $717 million in additional revenue to the federal

government (Fortin et al., 2011). Though this program does not address care for seniors or those

with special needs, it could help to explain why Quebec is underrepresented in the number of

caregivers and temporary workers destined for the province relative to its population size.

Discussion

The LCP has been criticised for various reasons, but perhaps the two overriding criticisms

are the live-in requirement and the restricted labour mobility, as discussed previously (Brickner

and Straehle, 2010; Elgersma, 2007; Jolly and Reeves, 2005; Langevin and Belleau, 2000;


36

Oxman-Martinez et al., 2001). The live-in requirement has the potential to significantly increase

the caregiver’s vulnerability to being exploited including psychological, physical, and sexual

exploitation (Perrin, 2011). Additionally, minimum wage is not adequate to cover the cost of

housing and thus an economic dependency is created. This assists in creating a racially identified

space, or a working environment that is unattractive for Canadian workers (Marsden 2011).

In December 2011, the Minister of Citizenship and Immigration Canada announced that

live-in caregivers could now apply for an open work permit between the completion of their

working obligations and the submission of their application for permanent residence (CIC,

2011d). Before this change, caregivers were required to continue living in the homes of their

employers while waiting to be approved for permanent residence (CIC, 2011d). While this

change does address one area of possible concern, it does not address the limited mobility

caregivers have during the four years allowed to complete the program obligations.

According to Langevin and Belleau (2000), some rights advocates have suggested that the

LCP be maintained but with major changes, such as: granting permanent residence to caregivers

upon arrival; eliminating the live-in requirement, and; strictly regulating employment agencies.

Despite its weaknesses, the program allows women, who would not normally be admitted to

Canada, to enter the labour market (Langevin and Belleau, 2000). Caregivers are able to send

money home to their families, therefore assisting their home countries. Once the women obtain

permanent residence, they can sponsor their family members to join them in Canada. In addition,

caregivers who have been through the LCP appear to be satisfied with the program as they view

it as a fair exchange for residency (Langevin and Belleau, 2000). However, this “exchange”

could be considered to be exploitation by taking advantage of a cultural expectation that

subscribes to a family, rather than an individualistic, home. This could be attributed to the effect


37

of a neo-colonialist attitude towards immigration in that no matter how poorly foreign workers

are treated, they are still better off in Canada than in their home country (Walia, 2010).

On the other end of the spectrum, some rights advocates consider the program to be

“aberrant, anachronistic and neocolonialist” (Langevin and Belleau, 2000, p. 35). Langevin and

Belleau (2000) argue, for instance, that the purpose of the LCP, to address temporary labour

shortages, is problematic in itself. The question has to be whether the labour shortage is genuine

or whether it is caused by a lack of incentive for Canadian women to do the work (Langevin and

Belleau, 2000). Domestic and caregiving work is undervalued and underpaid in Canadian

society, arguably leading many women to seek more highly valued employment opportunities

(Brickner and Straehle, 2010; Langevin and Belleau, 2000; Walia, 2010). One way of addressing

the value of caregiving work would be to examine ways of implementing a national caregiving

program aimed at addressing the needs of child, elder, and special needs care. This national

caregiving program could be similar to the Quebec childcare program reviewed in the

ameliorative measures section.

There are a number of gaps in the research on the LCP and the vulnerability of caregivers.

For instance, it would be helpful to analyze the strategies of other countries that have similar

temporary work schemes to Canada. This type of analysis could provide valuable background

information to governments that are creating legislation and enforcement mechanisms to deal

with the exploitation of temporary labourers. There is also a lack of evaluation research on

existing legislation and programs. It is important for legislation and programs to be evaluated for

their effectiveness to ensure that they are adequately meeting the intended purpose. This

information in turn can assist governments in deciding which programs should be funded and

which legislation may need to be amended. For example, it will be imperative to monitor the


38

effectiveness of the relatively new Manitoba’s Worker Recruitment and Protection Act (S.M.

2008). If this Act is effective in addressing the potential exploitation of caregivers by

employment agencies, than perhaps this Act can be more widely implemented by other provinces

and territories.

Legislation that is effective in reducing exploitation for migrant workers, however, loses its

ameliorative effect if enforcement mechanisms are inadequate (Marsden, 2011). Although

OCTIP is not an enforcement agency per say, and although its successes have been limited, it is

an organization that is highly respected as a coordination body between law enforcement,

different levels of government, and NGO’s, and thus has the ability to assist in a comprehensive

response to exploitation and human trafficking. As a result, it is crucial to evaluate the

effectiveness of OCTIP in its current form. Additionally, a mechanism similar to the GLA,

reviewed in the ameliorative measures section, could be examined for possible implementation

as part of the enforcement of provincial labour laws. This type of an enforcement mechanism

could be used to conduct inspections to ensure that caregivers have adequate protection from

exploitation and that they are aware of their rights and obligations. As a more proactive

approach, it would also reduce the onus on the caregiver to report incidents of abuse.

In addition to the concerns outlined above, there were two problems that were identified in

the analysis that are much more difficult to address. As a result of the live-in requirement, some

academic and government researchers expressed concern about the potential for unintended

exploitation by the employer as well as social isolation from the general population. The nature

of caregiving work is much more secluded than other types of work that may involve more

interaction the community. Ensuring that caregiver advocacy organizations such as PINAY in

Quebec or Intercede in Ontario are funded for activities that are specifically meant to reach out to


39

live-in caregivers, could perhaps address these concerns. Because live-in caregivers cannot vote

in Canada, they therefore have a limited ability to affect change. It is thus imperative that live-in

caregivers are afforded adequate representation by advocacy organizations that can lobby the

government from a victim perspective.

Conclusion

Canada relies on migrant workers to meet its economic needs (Brickner and Straehle, 2010).

The LCP differs from Canada’s other temporary work schemes in that caregivers can become

eligible for permanent residency once they have completed the requirements. This offers the

caregivers, who are primarily women from the Philippines (90%) an added incentive to apply as

a live-in caregiver. The LCP is regulated by federal and provincial/territorial legislation. The

federal government regulates immigration and criminal violations, while provincial and

territorial governments regulate employment contracts and working conditions. Although the

LCP provides some benefits, worker rights advocates and researchers have identified some

problematic aspects of the program. As a result of the live-in requirement, caregivers become

more vulnerable than other workers in more visible occupations. This requirement can lead to

social isolation and the increased likelihood of exploitation by the employer. The LCP has also

been criticized for the caregiver’s lack of mobility as a result of the obligation to work for the

approved employer named on the work visa. Furthermore, Canada’s foreign temporary work

schemes have highlighted a two-tiered immigration system, where high-skilled workers are able

to migrate to Canada as permanent residents with access to Canada’s social benefits, while low-

skilled workers are considered temporary migrants with decreased or no access to these benefits.

As a result, these migration policies promote gender and racial segregation.


40

Unfortunately, Canada’s immigration, criminal and labour legislation does not fully prevent

the exploitation of live-in caregivers. For instance, the LCP suffers under a federalist system

where there are certain areas that are not legislated in many provinces and territories but also do

not fall under the mandate of the federal government. This is particularly evident in the lack of

regulation of employment agencies that lure women with the promise of a better life in Canada

and force them into cheap and degrading labour, by Canadian standards, once they arrive

(Brazao, 2009a). In addition, the existent labour legislation requires the worker to report abuses.

This is problematic as some may not consider themselves victims and others may be afraid of the

potential consequences of coming forward. Despite the lack of a comprehensive approach to

labour exploitation, there are however a number of ameliorative measures that were discussed,

including legislation and enforcement mechanisms that can assist in reducing the vulnerability of

caregivers to exploitation.

In order to prevent exploitation and human trafficking and to assist victims, it is important to

have a balanced approach that encompasses the international legislation that Canada has ratified.

One of the limitations of the Palermo Protocol, and other international legislation, is that it lacks

enforcement capabilities (Hendrix, 2010). Currently, there is no oversight mechanism to

determine which states have implemented the Palermo Protocol or not, thereby reducing the

incentives for compliance (Hendrix, 2010). The ameliorative measures discussed above are

promising measures that could address some of the gaps in Canada’s heavily legislative approach

to exploitation. Some of the measures, such as WRPA and OCTIP are relatively new, but appear

to be promising on their own merits. As part of a federally coordinated, balanced approach, the

results could be even more positive.


41

Given the overall analysis, a number of suggestions and recommendations were discussed in

order to address the problems and areas of concern that were identified. Arguably, some of the

problems with the LCP go beyond the program itself to governmental policies, societal

expectations of the traditional roles of women and of ethnic minorities, and expectations of

foreign workers. The analysis provided evidence that although there are aspects of Canada’s

legislation that do provide protection to caregivers, it is not without gaps and enforcement of the

legislation is inadequate. Moreover, the problem of a labour shortage is often more complex than

a simple lack of individuals to fill jobs, especially in rich countries. The shortages are often in

work that is less desirable due to low wages and unfavourable conditions. Canada’s immigration

policies must recognize these issues as this will assist in making caregiving and domestic work

safer and more valued. These issues will become more salient as the use of TFWs to address

work shortages becomes an increasingly permanent solution.


42

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