Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Forced Labour Convention, 1930 (No. 29) - Canada (Ratification: 2011)
Protocol of 2014 to the Forced Labour Convention, 1930 - Canada (Ratification: 2019)

The Committee notes the Government’s first and second reports, received on 30 August 2013 and 10 October 2014. It also notes the observations from the Canadian Labour Congress (CLC), received on 4 September 2013 and 10 October 2014, as well as the Government’s reply thereto. It further notes the observations from the Confederation of National Trade Unions (CSN), received on 10 October 2014.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. (a) Legal framework and law enforcement. The Committee notes that section 279.01 of the Criminal Code prohibits trafficking in persons (punishable with imprisonment of up to 14 years), as does section 118 of the Immigration and Refugee Protection Act. In this regard, the Government indicates that 12 legal proceedings for forced labour were initiated under provisions relating to trafficking between 2009 and May 2014, including three cases of domestic trafficking. There were convictions imposed by the courts in four cases during this period for international human trafficking, including the conviction of 25 accused persons and one company. These convictions resulted in sentences of imprisonment ranging from six months to nine years. The Committee notes the reference by the CSN to a 2013 report of the Royal Canadian Mounted Police (RCMP) entitled Domestic Human Trafficking for Sexual Exploitation in Canada. This RCMP report states that, despite the many successes, human trafficking investigations to date have only scratched the surface of the true extent of this crime in Canada. The report further states that in some locations across the country, law enforcement agencies and officers are not conducting human trafficking investigations as they are not always aware of relevant legislation, do not fully understand this crime, lack resources, or have competing priorities. The Committee requests the Government to provide information on measures taken to strengthen its efforts to combat trafficking in persons, including measures to provide appropriate training to law enforcement officials in this regard. The Committee also requests the Government to continue to provide information on the application of section 279.01 of the Criminal Code and section 118 of the Immigration and Refugee Protection Act in practice, including the number of prosecutions and convictions, the penalties applied, as well as copies of relevant court decisions.

(b) Prevention of trafficking and protection of victims. The Committee notes the Government’s indication that the National Action Plan to Combat Human Trafficking was released in June 2012, which proposes strategies to support organizations providing assistance to victims, and provides protection to foreign nationals from illegitimate or unsafe work. The National Action Plan includes a victims’ fund which is available for projects aimed at improving services to victims of trafficking in persons. Additionally, temporary residents permits (TRPs) are available to victims of trafficking, with 73 foreign nationals receiving such permits between May 2006 and December 2011. The Committee also notes the information provided by the Government regarding measures taken at the provincial level, such as the establishment in British Columbia of the Office to Combat Trafficking in Persons in 2007 and the adoption of a provincial action plan. The Committee requests the Government to pursue its efforts to identify victims of trafficking and to ensure that all such victims are provided with appropriate protection and assistance. It requests the Government to continue to provide information on measures taken in this regard, including measures taken within the framework of the National Action Plan to Combat Human Trafficking.

2. Temporary foreign workers. The Committee notes the allegations of the CLC that persons who enter the country under the Temporary Foreign Worker (TFW) programme may end up working in conditions amounting to forced labour. Work visas issued to temporary foreign workers are imprinted with the name of their employer, with restrictions on working for another employer, and significant restrictions prevent them from leaving a job when their rights are abused. The CLC provides examples of situations where migrant workers faced passport confiscation, contract substitution, inadequate housing conditions, wages below the minimum wage, the withholding of wages, unsafe working conditions, intimidation and sexual assault. Moreover, third party recruiters charge illegal fees, and temporary foreign workers are more vulnerable to violations relating to payroll and employment issues. Regarding monitoring, the CLC states that while the TFW programme lies within the federal jurisdiction, the monitoring of their employment conditions falls within the provincial/territorial jurisdiction, and therefore there is little effective monitoring of the working conditions of these workers. The only means for workers to seek redress from abuse is through filing a complaint, which could, nonetheless, jeopardize their ability to legally remain in Canada. Workers seeking redress face few options: raising objections with an employer may lead to deportation, while filing a complaint with the provincial labour relations bodies has had a very low success rate.

The Committee notes the Government’s reply to these allegations, indicating that temporary foreign workers are covered by the same protections as Canadian workers, and that the specific concerns raised by the CLC have been addressed through legislative amendments concerning trafficking in persons, new regulations for the TFW programme, as well as legislation, regulations and policies adopted by the provinces to strengthen protection and extend benefits for temporary foreign workers. The Government indicates that it plans to amend the Immigration and Refugee Protection Regulations in order to provide enhanced authority to verify employer compliance with TFW programme requirements and apply the necessary measures for non-compliance, including the power to inspect any premises in which a foreign national performs work. The Government indicates that temporary foreign workers cannot be penalized or deported for looking for another place to work and are allowed to change employers. In this regard, the Committee notes that the documents referred to in the Government’s reply show that migrant workers are able to change employers by applying for a new work permit. This documentation also evidences that employers may be subject to inspections during a period of six years from the date of issuance of a work permit for a temporary foreign worker, and that such inspections can include on-site visits without a warrant (except for private households) to verify compliance with federal and provincial/territorial legislation governing employment. The Government also indicates that changes to the TFW programme were announced in June 2014, which will include an increase in the number and scope of inspections of employers hiring temporary foreign workers. These changes will also include tougher penalties for non-compliant employers such as the suspension of the recruitment of further temporary foreign workers for two years and the introduction of financial sanctions. The Government is currently working on proposed changes to the TFW programme regulations. Lastly, the Committee notes the Government’s indication that a number of these cases referred to by the CLC have led to convictions by the courts and/or human rights tribunals.

The Committee notes the information on the Government’s website indicating that as of 2011, there were approximately 192,000 temporary foreign workers in Canada. The Committee requests the Government to continue to provide information on the measures taken to protect temporary foreign workers from exploitative work amounting to forced labour, including measures to facilitate access to relevant complaint mechanisms. Noting the Government’s indication that it will introduce financial penalties for non-compliance with the TFW programme regulations, the Committee also requests the Government to take measures to ensure that persons who engage workers in work amounting to forced labour are subject to sufficiently effective and dissuasive penal sanctions, in conformity with Article 25 of the Convention. Lastly, the Committee requests the Government to provide information on the number of inspections undertaken in workplaces employing temporary foreign workers, and the results of these inspections, including the number of violations detected relating to passport confiscation, non-payment of wages, contract substitution, poor working conditions and punishment of workers for seeking new employment, as well as the specific penalties applied.

3. Aboriginal victims of trafficking. The Committee notes the statement of the CSN that the Government is not taking the necessary measures to eradicate the phenomenon of trafficking of aboriginal women and girls. The CSN refers in this regard to the report of the RCMP of 2013, which states that several specific cases of domestic human trafficking for sexual exploitation have involved aboriginal victims. This report states that while the number of aboriginal victims does not comprise a large portion of the total number of victims in all cases where human trafficking-specific charges were laid, the aboriginal population is approximately four per cent of the total Canadian population, and therefore the number of trafficked aboriginal victims identified in these cases represents a higher proportion of victims. The Committee requests the Government to provide further information on the situation described by the CSN, as well as on the measures taken to specifically address the vulnerability of certain members of the aboriginal community to abusive practices and conditions that may amount to forced labour.

Articles 1(1) and 2(1). 1. Freedom of civil servants to leave their service. The Committee notes that section 63 of the Public Service Employment Act states that an employee may resign from the public service by giving the deputy head notice in writing of his or her intention to resign, and the service ceases on the date specified by the deputy head, regardless of the date of the acceptance. The Committee notes that in the province of New Brunswick (pursuant to section 24 of the New Brunswick Civil Service Act) and the territory of Nunavut (pursuant to the Nunavut Public Service Act), the ability of civil servants to resign also appears to be contingent on the acceptance of this resignation. The Committee requests the Government to provide information on the conditions under which a resignation by a civil servant may be refused, as well as the number of acceptances and refusals, and where appropriate, the reasons for refusal, in the relevant jurisdictions, particularly regarding federal civil servants as well as those in New Brunswick and Nunavut.

2. Freedom of career members of the armed forces to leave the service. The Committee notes that section 15.02 of chapter 15 of the Queen’s Regulations and Orders for the Canadian Forces, on Release, states that no officer or non-commissioned member may claim his release as a right except: (i) an officer or non-commissioned member not on active service by reason of an emergency whose service entitles him to an immediate annuity under the Canadian Forces Superannuation Act; (ii) an officer or non-commissioned member who has completed a 20 or 25 year intermediate engagement; and (iii) an officer who completed a fixed period of service. Section 15.18 states that officers and non-commissioned members may also make a request for voluntary release. This request must be made in writing through the commanding officer and forwarded to the National Defence Headquarters. Recalling that career military personnel who have voluntarily entered into an engagement should have the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice, the Committee requests the Government to provide information on the manner in which applications for voluntary release by career members of the armed services are generally treated, including information relating to the notice period, the number of acceptances and refusals and, where appropriate, reasons for such refusal.

Article 2(2)(c). Compulsory labour exacted as a consequence of a conviction in a court of law. 1. Prison labour. (a) Federal prisons. The Committee notes the Government’s statement that federal legislation does not contain provisions relating to compulsory prison labour. It notes that pursuant to the Corrections and Conditional Release Act, the Correctional Service of Canada encourages individuals convicted to a federal sentence to become actively involved in programmes, including employment and vocational training. The website of the Correctional Service of Canada indicates that the Service operates CORCAN, a programme that aims to provide offenders with employment and employability skills training. This employment includes opportunities to work in the community with not-for-profits as well as private sector enterprises. With reference to its 2012 General Survey on the fundamental Conventions, the Committee recalls that work by prisoners for private enterprises can be held compatible with the Convention where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their formal, free and informed consent to work for private enterprises. In such a situation, work of prisoners for private parties would not be contrary to the Convention, since no compulsion is involved. Moreover, the Committee has considered that, in the prison context, the most reliable indicator of the voluntariness of labour is that the work is performed under conditions which approximate those of a free labour relationship, including with regard to wages, social security and occupational safety and health. The Committee requests the Government to provide further information on the manner in which consent is obtained from inmates who participate in employment programmes, including for private sector enterprises within the framework of CORCAN, as well as information on the wages, social security benefits and occupational safety and health of the participating prisoners.

(b) Provincial and territorial prisons. The Committee notes that in three provinces and territories, labour appears to be compulsory for prisoners in the provincial/territorial prisons, specifically in Newfoundland (pursuant to section 21 of the Prisons Regulations made under the Prisons Act), Nunavut (pursuant to section 18 of the Nunavut Corrections Act) and in Prince Edward Island (pursuant to section 10 of the PEI Correctional Services Act). The Committee requests the Government to provide information on the measures taken to ensure that, in the provinces and territories where prisoners are obliged to perform work, such work is carried out under the supervision and control of a public authority and that such prisoners are not hired to or placed at the disposal of private individuals, companies or associations.

The Committee notes that in the majority of the provinces and territories, work in prisons is performed on a voluntary basis. It also notes that the legislation in several provinces permits prisoners to be engaged in work outside of the prison (pursuant to section 23 of the British Columbia Corrections Act, section 25 of the Ontario Corrections Services Act and section 76 of the Act respecting the Québec correctional system). The Committee requests the Government to provide information on whether, in the provinces where prison work is performed on a voluntary basis, this work may be performed for private enterprises, either within or outside of the prisons. If so, the Committee requests the Government to provide information, with regard to each province where work may be performed for private enterprises, on the manner in which the free, formal and informed consent of prisoners to perform such work is obtained, as well as information on the applicable wages, social security benefits and occupational safety and health measures.

2. Community corrections. The Committee notes the Government’s indication that, under the Criminal Code, following conviction, a court may suspend a sentence, and the offender may be released pursuant to conditions prescribed in a probation order (if there is not a minimum sentence of imprisonment prescribed). Pursuant to section 742.3(2)(d) of the Criminal Code, the court may prescribe that the offender perform up to 240 hours of community service over a period not exceeding eighteen months. The Committee also notes the Government’s indication that all provinces also have some type of community corrections sentencing. The Committee requests the Government to provide information, on whether work performed in the context of these community corrections or community service programmes, at both the federal and provincial level, may be performed for private entities.

Article 2(2)(d). Emergencies. The Committee notes the Government’s indication in its report that under the Emergencies Act, in the event of a public order emergency or a declaration of an international emergency, any person may be authorized to render essential services with reasonable compensation in respect of services rendered. Pursuant to this Act, the Governor in Council may make orders believed to be necessary for dealing with the public welfare emergencies (section 8(1)(d)), public order emergencies (section 19(1)(d)) and international emergencies (section 30(1)(e)) with respect to the “authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered”. Section 3 of the Emergencies Act defines the term “emergency” as an “urgent and critical situation of a temporary nature that seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or seriously threatens the ability of the Government to preserve the sovereignty, security and territorial integrity of Canada”. Recalling that, pursuant to Article 2(2)(d), the power to call up labour in cases of emergency is limited to what is strictly required by the exigencies of the situation, the Committee requests the Government to provide information on the application of the Emergencies Act in practice, particularly information on any declaration of public welfare emergencies, public order emergencies and international emergencies.