Simons: Baffling plea agreement does nothing to help exploited Polish workers
The plea agreement requires Kihew to pay Lakeland College $215,000 to set up translation and training programs for future temporary foreign workers.
Photograph by: Supplied, Edmonton Journal
EDMONTON - It was an illegal scheme, a headline-making immigration fraud that raised public awareness about the plight of temporary foreign workers in Alberta.The victims were three dozen welders from Poland, lured here in 2005 and 2006 by ads in Polish newspapers. They believed they were here on legitimate work visas, to work for Kihew Energy Services, owned by Rev. John Lipinski, a Ukrainian Orthodox priest, and his partner Calvin Steinhauer. But the workers actually arrived on student visas, procured by Paul Myshaniuk, then general manager of the business unit at Lakeland College’s Strathcona County campus. Kihew paid Lakeland $215,000 — creating the false impression the welders were students.
But they never took welding classes. Kihew farmed them out to work on various job sites. Kihew charged firms $24 an hour, more when the men worked overtime. The workers earned just $10 to $12 an hour, and no overtime — on top of which, they paid Kihew $200 a month for accommodation and transportation.
The scam only blew up when the Polish-speaking workers went for help to Polish-Canadian Tory MLA Thomas Lukaszuk, who brought the case to the RCMP.
Tuesday, almost six years after RCMP began investigating, Kihew signed a plea agreement with federal Crown prosecutors, acknowledging it had violated Section 117 of the Immigration and Refugee Protection Act, which forbids anyone to aid or abet a person to enter Canada without a proper visa.
But the Crown dropped the more serious charge of human trafficking. It also dropped all charges against Lipinksi, Steinhauer and Lipinski’s wife, Angela.
There’s no compensation for the Poles. Instead, the plea agreement requires Kihew to pay Lakeland College $215,000 to set up translation and training programs for future temporary foreign workers.
It’s baffling. Why should Lakeland be the big winner here? True, the college was never implicated in any criminal wrongdoing. The college also returned the original $215,000 it was paid for those imaginary welding classes. The sum has been held in trust by Kihew’s lawyer, pending the outcome of the criminal proceedings.
Yet Lakeland’s failure to monitor its staff allowed the creation of the fake visas in the first place. It’s ridiculous to reward the college for its own mismanagement by giving it back the $215,000 it shouldn’t have accepted in the first place. Moreover, the fine scarcely penalizes Kihew or its directors. They actually paid out the $215,000 to Lakeland six years ago, so this doesn’t compel them to give up any of the estimated $1 million they made by exploiting the welders.
The court order compels Lakeland to spend the whole sum within two years, explicitly on services for temporary foreign tradespeople. How many such students does the college have?
“I don’t know. I doubt we have any,” college president Glenn Charlesworth told me Tuesday. “If we had any, I’d be surprised.”
Charlesworth said he was never consulted. Indeed, he was unaware of the terms of the court order, until I read it to him. “We’ll have to get together to read the court order to come up with a plan to develop those programs.”
Still, after I spoke with federal Crown prosecutor Kent Brown, I had some more sympathy with the ruling. Brown said prosecutions of immigration fraud are rare — this case, he told me, is the first of its kind in this region.
“There is no typical penalty because there are virtually no precedents on which to rely. I consider this to be a success.”
While $215,000 doesn’t seem like a lot, given how much profit Kihew made, that precise sum was being held in Kihew’s lawyer’s trust account, meaning the Crown could at least be certain that the penalty would actually be paid.
“What’s being lost in the discussion is that Lakeland College was not a player in this scheme. They were a victim in this scheme,” said Brown, who stressed it wasn’t his responsibility to get compensation for the workers, but to prosecute Kihew for breaking federal immigration law.
The penalty, which Brown told me was carefully negotiated with lawyers for both Lakeland College and the college’s insurance company, was meant to provide a form of social recompense to the larger community.
If the plea bargain is far from perfect, I do give the feds full credit for investigating and prosecuting.
It’s the job of the province, though, to police employment standards. Yet despite the fact that Lukaszuk, who went on to be minister of employment and then deputy premier, championed these workers and their cause, the province itself has done little to help them. Lukaszuk says that’s because they didn’t want to trespass onto federal jurisdiction.
But according to Jay Fisher of Alberta Human Services, Employment Standards never launched any investigation nor opened any file.
Despite the highly publicized RCMP investigation, Fisher said the province didn’t act because no Polish worker actually filled in the formal written complaint form. Now that the Crown has secured a guilty plea, Fisher said the province still can’t prosecute, because the statute of limitations has run out.
It’s impossible to believe that after all the public attention this case received, the exploited workers are still no closer to justice. Their visas may have been temporary. The blow to Alberta’s global reputation may not be.
But they never took welding classes. Kihew farmed them out to work on various job sites. Kihew charged firms $24 an hour, more when the men worked overtime. The workers earned just $10 to $12 an hour, and no overtime — on top of which, they paid Kihew $200 a month for accommodation and transportation.
The scam only blew up when the Polish-speaking workers went for help to Polish-Canadian Tory MLA Thomas Lukaszuk, who brought the case to the RCMP.
Tuesday, almost six years after RCMP began investigating, Kihew signed a plea agreement with federal Crown prosecutors, acknowledging it had violated Section 117 of the Immigration and Refugee Protection Act, which forbids anyone to aid or abet a person to enter Canada without a proper visa.
But the Crown dropped the more serious charge of human trafficking. It also dropped all charges against Lipinksi, Steinhauer and Lipinski’s wife, Angela.
There’s no compensation for the Poles. Instead, the plea agreement requires Kihew to pay Lakeland College $215,000 to set up translation and training programs for future temporary foreign workers.
It’s baffling. Why should Lakeland be the big winner here? True, the college was never implicated in any criminal wrongdoing. The college also returned the original $215,000 it was paid for those imaginary welding classes. The sum has been held in trust by Kihew’s lawyer, pending the outcome of the criminal proceedings.
Yet Lakeland’s failure to monitor its staff allowed the creation of the fake visas in the first place. It’s ridiculous to reward the college for its own mismanagement by giving it back the $215,000 it shouldn’t have accepted in the first place. Moreover, the fine scarcely penalizes Kihew or its directors. They actually paid out the $215,000 to Lakeland six years ago, so this doesn’t compel them to give up any of the estimated $1 million they made by exploiting the welders.
The court order compels Lakeland to spend the whole sum within two years, explicitly on services for temporary foreign tradespeople. How many such students does the college have?
“I don’t know. I doubt we have any,” college president Glenn Charlesworth told me Tuesday. “If we had any, I’d be surprised.”
Charlesworth said he was never consulted. Indeed, he was unaware of the terms of the court order, until I read it to him. “We’ll have to get together to read the court order to come up with a plan to develop those programs.”
Still, after I spoke with federal Crown prosecutor Kent Brown, I had some more sympathy with the ruling. Brown said prosecutions of immigration fraud are rare — this case, he told me, is the first of its kind in this region.
“There is no typical penalty because there are virtually no precedents on which to rely. I consider this to be a success.”
While $215,000 doesn’t seem like a lot, given how much profit Kihew made, that precise sum was being held in Kihew’s lawyer’s trust account, meaning the Crown could at least be certain that the penalty would actually be paid.
“What’s being lost in the discussion is that Lakeland College was not a player in this scheme. They were a victim in this scheme,” said Brown, who stressed it wasn’t his responsibility to get compensation for the workers, but to prosecute Kihew for breaking federal immigration law.
The penalty, which Brown told me was carefully negotiated with lawyers for both Lakeland College and the college’s insurance company, was meant to provide a form of social recompense to the larger community.
If the plea bargain is far from perfect, I do give the feds full credit for investigating and prosecuting.
It’s the job of the province, though, to police employment standards. Yet despite the fact that Lukaszuk, who went on to be minister of employment and then deputy premier, championed these workers and their cause, the province itself has done little to help them. Lukaszuk says that’s because they didn’t want to trespass onto federal jurisdiction.
But according to Jay Fisher of Alberta Human Services, Employment Standards never launched any investigation nor opened any file.
Despite the highly publicized RCMP investigation, Fisher said the province didn’t act because no Polish worker actually filled in the formal written complaint form. Now that the Crown has secured a guilty plea, Fisher said the province still can’t prosecute, because the statute of limitations has run out.
It’s impossible to believe that after all the public attention this case received, the exploited workers are still no closer to justice. Their visas may have been temporary. The blow to Alberta’s global reputation may not be.
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