SERGIO R. KARAS QUOTED IN GLOBE AND MAIL ON FOREIGN WORKER PROGRAM CHANGES

Warrantless workplace searches raise concerns from businesses - The Globe and Mail

June 11, 2013

Warrantless workplace searches raise concerns from businesses

By STEVEN CHASE, RICHARD BLACKWELL AND TAVIA GRANT
Posted with permission from The Globe and Mail

Canada's largest business group says it's disturbed by new warrantless search and seizure powers the Harper government has given federal officials to inspect thousands of workplaces as part of a tightening of the controversial foreign temporary worker program

Canada's largest business group says it's disturbed by new warrantless search and seizure powers the Harper government has given federal officials to inspect thousands of workplaces as part of a tightening of the controversial foreign temporary worker program.
Changes to immigration and refugee protection regulations, published just days ago, give Human Resources and Skills Development Canada officials or Citizenship and Immigration Canada officers the right to walk in on businesses as part of a random audit or because they suspect fraud.
Perrin Beatty, president of the Canadian Chamber of Commerce, said this was the first he'd heard of this new authority. "I'm obviously very concerned about it. These seem to be very sweeping powers to be giving to the authorities without the sort of checks and balances that are necessary to ensure they are not abused," Mr. Beatty said. "We certainly support enhancing the ability of the government to identify people who are genuinely fraudulent. The question is: Should a public servant at a desk somewhere have the capacity to decide capriciously to simply go into a business without a warrant ... and in some cases to seize documents, without having to go to a court to seek authorization and to demonstrate there is probable cause?"
But not all companies share Mr. Beatty's concern. At Bombardier Inc.'s aerospace division in Montreal, which uses about 400 temporary foreign workers out of a work force of 20,800, "audits actually a very normal part of any process with any kind of government [program]," said spokeswoman Haley Dunne. "We are comfortable with them and quite open to them," she said.
Upon entering a property, officials will have wide powers of investigation. They will be able to "examine anything on the premises," question employers and staff, request documents, use photocopiers to copy records, and take photographs or make video and audio recordings. They can also take records with them.
The Canadian Chamber of Commerce represents 450 local chambers across the country that in turn represent 200,000 businesses.
The new rules bring businesses relying on temporary foreign workers under similar inspection regimes to ones used in regulated industries where health or environmental audits are conducted. The Charter of Rights and Freedoms protects people and businesses from unreasonable search and seizure, which generally means the government cannot enter private property without a warrant. But courts often allow warrantless inspections of regulated businesses, lawyers say.
Jay Myers, president of Canadian Manufacturers & Exporters, says his concern is rather how frequently HRSDC and immigration inspectors will be conducting random audits of businesses.
"If inspectors are going out to do a lot of random audits and inspections, it's really going to be a cost for companies that are otherwise obeying the rules of the program," Mr. Myers said.
"We really need to know more about what the plans are."
He said he hopes this doesn't represent an effort by Ottawa to further discourage use of the temporary foreign worker program.
"If this is being used as a method to get employers not to use the temporary foreign workers program and it becomes an overly costly compliance requirement for companies, then we really do have a problem."
Hundreds of thousands of foreign workers came to Canada in 2011 – more than double the levels of a decade ago. They are being used to fill positions in fields from fast-food to information technology to agriculture.
The new regulations come just months after the Conservative government reversed course on the temporary foreign worker program with measures to make it tougher, and less economically attractive, to import short-term labour.
Francis McGuire, CEO of Major Drilling Group International Inc. of Moncton, said he feels warrantless inspections may be necessary, because of the possibility of abuses in the temporary foreign worker program.
"It is extremely important for labour inspectors to pop in and make sure that people aren't being exploited," he said.
While there is legitimate concern that government officials may get "bureaucratic and sticky," there are instances where random audits are necessary, said Mr. McGuire, whose company has used temporary foreign workers in the past. "You hate to think that any Canadian employer might be exploiting people, but it does happen. ... and it has got to be policed. They have to come in and take a look, and they can't be announced."
Sergio Karas, a Toronto-based immigration lawyer, said warrantless search and seizures are a misstep. "I'm outraged and so are my corporate clients," Mr. Karas said. "What are they going to do [next]? Install listening devices now in businesses?"
Better options would have been limiting smaller businesses from accessing the program, reducing the number of years a foreign worker can stay in Canada, and ensuring temporary foreign workers pay payroll taxes while they're working in Canada, he said.
"It's true the system has been abused, but you need to understand who's been abusing the system. The people who have been abusing the labour market opinions are the mom-and-pop shops, typically in the construction industry, or the small employers who want to bring their brother-in-law from India or from Portugal."

SERGIO R. KARAS QUOTED IN GLOBE AND MAIL EDITORIAL ON TEMPORARY FOREIGN WORKERS

A heavy-handed approach to the temporary foreign workers program - The Globe and Mail

Globe editorial

A heavy-handed approach to the temporary foreign workers program

The Globe and Mail

Published Tuesday, Jun. 11 2013, 7:30 PM EDT
Last updated Tuesday, Jun. 11 2013, 7:30 PM EDT

 

The Conservative government’s plan to have warrantless inspections of workplaces that have temporary foreign workers seems excessive, in the absence of demonstrated evidence of widespread abuses.

The government says the purpose is twofold: to protect the integrity of the program, which is designed as a last resort when Canadians can’t be found to do the jobs; and to protect the foreign workers from exploitation.
There’s legitimate concern from economists and the wider public that some employers prefer to hire foreigners, rather than train Canadians for jobs. But the government has already addressed that concern with a strong new rule requiring all employers who hire temporary foreign workers to prepare a plan for eventually replacing them with Canadians. And a previous rule allowing the foreign workers to be paid up to 15 per cent less than Canadians has been scrapped.
Imagine a busy small business with 20 employees and about the same number of customers inside. Suddenly a federal inspector, or perhaps two or more, shows up for a random inspection. The search-and-seizure powers, and the suddenness, make it feel like a criminal investigation. (“The Stasi is going to be visiting employers,” Toronto immigration lawyer Sergio Karas says.) As a general principle, the state should not be rifling through a business’s filing cabinets without cause.
The government responds that warrantless inspections are permitted under the Canada Labour Code. But what makes sense in protecting workers against imminent safety risks may not make sense for checking an employer’s compliance with promised rates of pay and duties of work. There are milder ways to determine whether companies are living up to their word.
By the government’s own description, the program is meant to strengthen the Canadian economy by giving employers a way to fill short-term needs for skills and labour, in the event of a shortage of Canadian labour. But now those employers who do so will be letting themselves in for random inspections and document seizures, for up to six years after their last foreign worker has bid them goodbye. They may wonder if it’s worth the bother. The heavy-handedness seems, at first blush, counterproductive.

FIRST NATIONS CONSULTED ON IMMIGRATION

Canadian Business magazine reports that the federal government has met with First Nations in connection with immigration reform.

First Nations consulted on 2013 immigration targets as Tories break new ground | CanadianBusiness.com

First Nations consulted on 2013 immigration targets as Tories break new ground

By Bruce Cheadle, The Canadian Press | September 20, 2012  

OTTAWA - The Conservative government has wrapped up its consultations on next year's immigration targets by breaking new ground — a precedent-setting sit-down with First Nations.

And by meeting with a traditionally disadvantaged group — one that has vocally questioned Canada's generous immigration policy — the government may be signalling what's to come in 2013.

Rick Dykstra, the parliamentary secretary to Immigration Minister Jason Kenney, met Thursday with representatives of the Assembly of First Nations and the Congress of Aboriginal Peoples.

It was the final consultation as the ministry prepares the immigration target numbers, and their composition, that are expected to be released in November.

Dykstra called the meeting "very productive."

"The aboriginal community has a very unique opinion on immigration issues, and not hesitating to talk about the economy at the same time," he told The Canadian Press in an interview. "So it was very fruitful."

Citizenship and Immigration can find no record of aboriginal communities being consulted on immigration policy, a point that has not been lost on First Nations leaders — some of whom pointedly refer to all non-aboriginal Canadians as immigrants.

"It's a whole new stepping stone for us," said Dykstra.

As for the tenor of the meeting, he said: "I think the general consensus on the actual numbers was to maintain or perhaps move down in terms of what our average has been over the last couple of years."

Every year the federal government consults with various stakeholder groups before setting the following year's immigration targets in early November.

The numbers have remained fairly stable under Conservative and Liberal governments. Total intake in 2011 was almost 250,000 migrants, compared with 262,000 in 2005, the last year under the Liberals.

But the makeup of those immigrants is in constant flux. In 2007, Canada accepted just over 66,000 family-class immigrants and 131,000 in the economic class. Last year, the family class comprised only 56,446 while economic immigrants had jumped to 156,121.

The Conservative government is also allowing more temporary foreign workers into the country. By last December, there were more than 300,000 such workers, a jump of 50 per cent since 2007.

That has prompted some grumbling in First Nations communities.

This summer, Betty Ann Lavallee, the national chief of the Congress of Aboriginal Peoples — which represents urban natives — said Canada needs to train and employ aboriginal youth, not bring in foreign help.

"It's very important because we are a young generation, we are fast-growing and we are the next labour force for Canada," said Lavallee.

"We do not need to be bringing in immigrants. We are ready and prepared to work. We are a mobile people. We just need a little bit of help."

It is not a new complaint.

In 2010 two chiefs in northern Ontario made news when they held an education rally in Sault Ste. Marie that was overtly anti-immigration.

"What I say is close the borders," Batchewana First Nation Chief Dean Sayers was quoted telling the rally.

"Don't be bringing 200,000 more foreigners into these lands if you can't even look after the responsibilities you have to us already."

And in 2005 the Assembly of First Nations examined — and discarded — a resolution to "freeze all immigration coming into Canada until the federal government addresses, commits, and delivers resources to First Nations to improve the housing conditions, education, health and employment in First Nations communities."

Dystra said Thursday's meeting was not about moratoriums or shutting the door on immigration.

"I did not get that message at all," he said.

"There definitely was a leaning toward lowering the numbers, for at least a little while, to assist them in their endeavour to help with youth unemployment."

He said the aboriginal groups are seeking more continuing consultations, including with provincial ministries, as immigration and labour policy becomes entwined.