 All right, good afternoon everyone and welcome to the last seminar of the Health Law Institute seminar series. We have an amazing speaker and an amazing topic to end our series. We're so happy to have Professor McIntosh here with us. My name is Adelina Iftene and I'm the Associate Director of the Health Law Institute. It is my pleasure to welcome you here. We are talking to you both myself and Professor McIntosh from McMocky, which is the ancestral and non-city migma territory. I'm going to introduce Professor McIntosh in a couple of seconds. Just a couple of you housekeeping points that I would like to make. There is a Q&A box and I am going to ask that you, I'm going to ask that you use that box for typing your questions. You can do so at any point in time during the talk and I am going to come back and filter the question at the end. Also, if you wish to use closed captioning, we have live closed captioning and I have just posted the link for that in the chat box. I think with that said, we can get started. As I mentioned, our guest today is Professor Constance McIntosh, who is a full professor here at the Schulich School of Law at the La House. She is currently the Acting Scholarly Director for the McKinn Institute for Public Policy and Governance. She served at the Biscount Bennett Professor of Law from 2018 to 2021. She was the Director of the House's Health Law Institute from 2011 to 2017. She also served as the Leader of the Policing Justice and Security Domain for the Atlantic Metropolis Center of Excellence between 2010 and 2011. Much of Professor McIntosh's work as a legal scholar has focused on identifying and making recommendations to overcome legal and policy barriers to realizing culturally relevant health equity. A constant focus has been how indigenous health inequities are generated and perpetuated by legal structures, including jurisdictional, constitutional, and governance divisions, as well as the very manner by which unilaterally developed federal policy is used in lieu of binding legal frameworks. Professor McIntosh has also turned her attention to the intersection of law and policy with the health interests and status of refugee communities would be immigrants with disabilities and temporary foreign workers, which is something we're going to be hearing about today. Her work on the intersection on law and policy with the health of indigenous peoples is featured in numerous peer-reviewed publications and books and leading health, law, and policy textbooks. She is also the co-author of the leading Canadian textbooks on public law and on immigration and refugee law. Professor McIntosh has also worked closely with the Nova Scotia Department of Health and Wellness on multiple law and policy reform projects with immigration, refugee, and citizenship Canada on reforming gender persecution guidelines and has served as an expert panel member with the Canadian Council of Academies, as well as the Nova Scotia Independent Review of Hydraulic Fracturing. She has a long-standing relationship with the Immigrant Settlement Association of Nova Scotia where she oversees a pro bono legal information clinic. Today, Professor McIntosh will present on her work over the last couple of years on COVID-19 and migrant workers. I just have to read the title because I love it so much. Guardian angels and sacrificial lamps, COVID-19, and migrant workers. Thank you so much for being here, Constance. You're so welcome. I'm just going to get my screen set up. There we go. Hopefully, y'all can see that. This is part of a bigger project. I'm just going to be dipping into various parts of it and I could go way more to depth on everything. If anything, grab someone's interest along the way. Please do take me back to it later. This is an image of Mr. Luis Gabriel Flores. He was a Mexican migrant worker from Mexico and he was employed to do seasonal farmwork labor for Scotland's Sweet Pat Growers Inc. in the summer of 2020. In late June, just after Mr. Flores recovered from COVID-19, and he was one of the 190 workers who tested positive at his work site during that specific outbreak, he was terminated by his employer. He was terminated because he voiced concerns about whether his employer was doing enough to protect workers from COVID-19. He was galvanized because one of the people in his 13-bed bunkhouse was Mr. Juan Lopez Caparro. Mr. Caparro had also tested positive during that outbreak. After the outbreak quarantine ended, they all returned together to the bunkhouse, but Mr. Flores was concerned that Mr. Caparro, he didn't seem well, so Mr. Flores alerted Scotland farms and Mr. Caparro died two days later from COVID-19. And the owners then met with the workers and they told them that Mr. Caparro had died. And at that moment, Mr. Flores spoke directly with the farm owners, telling him through a translator, because Mr. Flores didn't speak English, telling him the workers had to be better looked after with COVID. The next morning, the owner confronted Mr. Flores, angry because a video had circulated on social media which showed housing conditions on the farm and also identified some health concerns. And the owner was pretty sure that he could spot Mr. Flores in the video. Mr. Flores denied he was in the video, irrelevant. Mr. Flores was told he was going to go back to Mexico and it turned out a flight had already been booked. Fortunately, while Mr. Flores was in quarantine during the outbreak, he'd been contacted by a migrant advocacy lawyer. And so he managed to text her, she arranged to have him picked up and instead of being forced on a flight back to Mexico that day, he stayed in Canada. And he was able to turn to legal action, but it wasn't under the legal regime that had brought him to Canada, which is supposed to protect him while he levered here. Under that regime, the regime for seasonal agricultural workers, an employer can unilaterally, that is, without review, without appeal, terminate and repatriate a worker for alleged non-compliance. Now, I'm going to return to this story and what it tells us about the law and COVID-19 and precarious labor, but first I'm going to tell you another story about things that were happening at the same time. And in the spring and summer of 2020, there was this real buzz among NGOs, lawyers, workers themselves, people who for decades have been speaking about how migrant workers with temporary or uncertain status, usually from the global south, usually racialized work in the global north doing jobs in sectors marked by the 3Ds, dirty, dangerous demeaning, where their willingness to do what is termed in the literature, unfree labor, it's maintained by this intersection of southern poverty and northern legal structures that maintain precarity. So there was a buzz within the community that doesn't like this situation because people witnessed something of a rupture. There was an idea that this crisis, it might open policy windows. And we saw some discursive and conceptual shifting about migrant workers, especially those working in agriculture in Canada and in other northern states because suddenly their defining feature wasn't that they performed low-skilled labor, which was the justification for their access to the northern job market being on a very temporary basis with very few rights. Rather their defining feature became they did essential work. And so the public in these countries, especially in the spring of 2020, became aware both of the northern dependence on these workers for food security and also some of the appalling conditions under which they toiled, which were also potential outbreak centers for COVID-19. So we have this marriage of state concern and citizen awareness and this potential for change. I'm going to talk today about migrant workers in Canada, how the COVID-19 pandemic is continuing to play out for diverse communities in their search for income security and safe working conditions. And although I'm mostly today going to talk about seasonal farm workers, I'm also going to reference some other migrants who have temporary work permits. And I'm going to get into some, how some were recognized as guardian angels and the gates open for them, while others remained in the role of what I'm going to call sacrificial lambs for the sake of analogy. So I'm starting the story for guardian angels and I've got to give you some context here. In the three years prior to COVID-19, starting in 2017, there was a significant flow of refugee claimants crossing the Canadian American border by jumping a ditch from Vermont to bring themselves into Quebec onto Roxham Road. And they were entering Canada at this strange location because of the safe third country agreement between Canada and the states, which intentionally and explicitly does not apply to unofficial border crossings like ditches. The agreement provides that with a couple of exceptions. If a refugee claimant asks for protection at an official border post between Canada and the United States, they are deflected back to the country that they transited to for their claim to be heard. And a lot of refugee claimants who managed to make their way to the United States, they actually want their claim to be heard in Canada. And there's lots of reasons for this. Our legal regime recognizes gender-based birth persecution. We recognize persecution on the basis of gender identity as being grounds for protection. In the US, persecution is interpreted far more narrowly. Those grounds are effectively excluded. The United States routinely detains asylum seekers. That's not routine in Canada. And in 2017, when the surge started, separating children from parents was also standardized and you probably saw those pictures of kids in cages as was detaining children. And as we know, many children are still separated in states. So as an aside of that agreement, it's going to the Supreme Court of Canada this year on the question of whether sending refugee claimants back to automatic detention violates the chart. Anyway, one of the safest places to enter Canada from the US that avoids the safe third country agreements that people don't get deflected back is Roxham Road. And our border agents, they're waiting for them. They see them coming. People go through health and safety screenings and the application begins. So the safety of this crossing, this ditch, the immediacy, the effectiveness of it, American policies after 2017, it led to a large number of asylum claimants living in Quebec, and in particular in Montreal, while they wait for their claim to be heard. And the other little background piece here is that our standard Canadian process is we'll give asylum claimants open work permits. So while they wait for their claim to be heard, they can be self sustaining instead of being on social assistance. And similarly, if a claim is not successful, a claimant may remain in Canada for a while while their departure is arranged during which time, we will likely give them another open work permit so they can support themselves. Not surprisingly, the jobs these migrants procure, they're seldom highly desirable ones. Well, when COVID-19 hit, Quebec found its long term care homes, other health care facilities to be utterly overwhelmed. And in April, Quebec asked for anyone who is willing to work long term care homes to please apply for positions. And according to the media, asylum seekers and others with tenuous immigration status applied intros. So these individuals filled these poorly paid positions which were, I mean, residents of nursing homes and seniors homes were 80% of all reported COVID-19 deaths in the first wave. Infections among staff at these facilities, they were over 10% of the total case count. So that's where they went. And ironically, a month before asylum seekers were stepping into these high risk health care roles to take care of vulnerable Canadians, Canada departed from a plan to quarantine as COVID hit to quarantine all asylum seekers across the American border and instead issued an order in Council March 20th that resulted in all asylum seekers entering Canada at any point from the United States to be uniformly deflected back to the US. So we borrowed anyone from entering Canada to make a claim for protection on the basis that in the preamble, the government found there was no reasonable alternative to prevent the introduction or spread of COVID-19. So about 500 asylum seekers were bounced back into the United States and into automatic detention before we stopped enforcing these orders in November of 2021, some 18 months later. And Canada let these things fall a few months after a legal challenge was launched with regards to this practice. Now, ironically, again, one lately consequence of this 20 month refugee ban was predicted by the Parliamentary Standing Committee in 2002 who endorsed the Safe Third Country Agreement leaving these border gaps. And they said, we got to leave them in place because of the experience of other countries like Germany who tried these things out. We've got to leave gaps in place because so as to keep smugglers out of business, to help keep human trafficking down, to make it more likely that anybody who entered irregularly would port to the government. And they highlighted how important this was for public health protections. You don't want people going underground with unknown public health risks. So some predicted at the time that this order ostensibly to protect Canadian public health would put Canadian public health at risk because we've got no screening, no quarantining. We're increasing border crossing attempts at dangerous locations, increasing the underground population. We don't know what happened. So much for public health. Canada didn't need to choose between protecting human rights and ostensibly protecting public health. We could have explicitly done both. In my opinion, we did neither. Anyway, some of these asylum seekers, the ones who got in before March 20th and took these positions in April, working at long term care homes to take positions that Canadians wouldn't work in because of the work conditions and the risk of death. They have been fast tracked for permanent residency and citizenship as a reward under the Guardian Angel program. You thought I made that up in the title. So failed refugee claimants, those with pending claims who worked in patient care roles in long term care homes and health facilities in the first wave, could become citizens if they met certain other criteria like having worked a certain number of hours and language proficiency. So cross the border on March 19th and a refugee claimant could become a guardian angel for putting themselves in the path of COVID-19 to care for vulnerable Canadians. Tried across the border anywhere from March 20th and 500 refugee claimants are sent into American immigration detention because Canada saw no other reasonable alternative for protecting Canadians from COVID-19. So although Canada couldn't identify a reasonable alternative to barring the entry of people seeking asylum because of the risk that they brought COVID-19 was too high, Canada had no problem finding a route for migrants to work for agri-food and to harvest our crops. Six days after Canada said COVID left us with no alternative but to ban cross border refugee claimants, Canada revised previously issued border orders that barred most people from entering except for essential purposes. So Canada ignored arguments that protection from persecution was an essential purpose for crossing the border, but responded to concerns raised by Canadian farmers and seafood harvesters who argued that temporary migrant workers were essential so should be granted entry. New Order and Councils issued, they're deemed essential and it's like what you can read this, temporary foreign workers in agriculture, agri-food, seafood processing, they're on in to protect trade, commerce, health and food security. Now Canada wasn't exaggerating the importance of these workers for food security or at least for agri-food industry. Scotland's Sweet Pat Growers Group, for example, like that's where Mr. Caparo died, that was the place that fired Mr. Flores. It has 74 million in annual sales and 70% of its crop goes to the United States. I'm just flagging that there for the whole Canadian food security argument. Now there are exceptions which must not be forgotten in the midst, but most migrant farm workers are not working on small scale family farms, most are hired by large corporate entities. So meet this demand for low-cost food, low-cost labour from March 2020 to June 2021 about 80,000 migrant agricultural workers entered Canada. So I see tough on this one last time despite COVID creating so much risk that Canada had to deflect 500 refugee claimants back into American immigration detention migrant workers were able to come, but what next? Well, the federal government, good on them, they move real fast to enact changes to regulations to create programs and policies coordinated with employment and social development Canada and that's the government department that oversees things on the ground to regulate the conditions under which agricultural migrant workers would work during COVID-19. Now have those regulations not been placed upon a legal structure which privatizes immigration decisions and which was already known to produce incredible health and safety vulnerabilities. Have those regulations and programs been enforced? They could have significantly addressed the health and safety risks of the workers. So I'm making the big claims here and once again need to back up a little bit and quickly frame out how the very structure of the program produces and sustains vulnerability before moving into the unfulfilled promises laws to protect workers. So on this slide I've summarized elements of the system. So the whole legal system and it's a combination of legislation bilateral agreements between Canada and southern largely Caribbean South countries and standardized form contracts and I've produced very precise publications about how this precarity is crafted if people want that sort of information I get it later. So here's what it does. It ties the work permit to an individual employer. So although in theory the migrant worker can change their employer in reality they can't if the working conditions are ejectionable. It requires accepting British Columbia workers to live in employer supplied housing. So they are not circulating and accessing the broader community. They are isolated and they need to tolerate whatever they find themselves living in. It effectively places access to health and medical care on the hands of the employer who acts as an intermediary because the employer gets the workers health care cards and the workers are dependent upon the employer if they want to go to a health clinic for care. And the regime explicitly permits the employer to dismiss migrant employees on medical grounds. So if a migrant worker seeks to access medical care and it's determined they need a break from work they have an injury the employer can forcibly repatriate them. Gone. The employer has the right to dismiss and repatriate employees on the vague ground of non-compliance. And there is no review or appeal mechanism. It's legal exceptionalism. Home state consulates are to be consulted but I know of no cases of objections being raised because if they do the home state risks the farm hiring nationals from one of the other source countries the next year. Resulting in that home state losing the remittances their citizens need along with the fees that the home state charges the workers they place. And I should have said this first the employer's hand pick who they are willing to hire in subsequent growing seasons. So they decide who's coming back and who's not. And if a worker is not rehired by an employer the home country is unlikely to keep them in the pool of potential workers. So who is going to risk contacting health and safety officials in a province if the outcome means that individual worker doesn't have a job next year. Who is going to go see a doctor for a sprained wrist instead of just trying to work through it if that means being sent home now. And when someone is sent home let's be clear although these workers pay into unemployment insurance and they are entitled to workers compensation they cannot access those things when the work permit ends and when they are deported like this just doesn't happen. So the system turns on southern poverty and northern legal exceptionalism. Now to be clear I'm not saying that all employers set out to exploit I'm not saying that all migrant agricultural workers experience exploitation and some employers have great and respectful relationships with their workers. Some bunk houses are in good conditions with like pool tables satellite TV. What I'm seeing is that the system creates a structure which fosters precarity health and safety risks and perpetual fear of employer discretion. And this isn't a secret I'm not like the one letting things out of can here. There was a 2016 human rights claim which failed by the way in which the Tribunal made a couple of findings that you know this closed employment relationship this risk and fear of repatriation means reluctance to bank complaints including health and safety complaints willing to work when sick or injured less able to resist work demands the conditions greater risk of experiencing health issues. So on the ground this has meant decades of reports of exploitative working conditions workers working when ill or injured living in unhygienic overcrowded dilapidated housing with inadequate sanitation. So that's our starting point okay it's this I'm going to say a failing structure that produces precarity health and safety risks and Canada was like well we've got to put a regime on top of this to mitigate these crazy COVID-19 health and safety issues. So a bunch of regulations and funding support programs came into play and they look pretty good okay they look pretty good. So here's some of the highlights workers just like everybody else quarantined for two weeks when they cross the border location has to permit physical distancing when they're in quarantine they get paid okay they get paid two weeks work anybody who has symptoms or chest positive separate accommodations and when they're in quarantine they're given cleaning supplies they're given clean drinking water they are required by the to be given adequate food and once they get out of quarantine only workers who house together can work closely otherwise they have to be physically distanced while working and the fads gave the employers $1,500 per worker so about $800 of that would be the two weeks of wages during quarantine so no money out of the pockets of the employers there and about 700 would then be available for modifying or creating accommodations per person and Employment and Social Development Canada which as I mentioned oversees the program they said wow our priority is going to be agriculture this year because workers rely on employer housing and quarantine inspections outbreak inspections those are our top priorities so man this was looking pretty darn good and go Canada the inspections were amazing right so the inspection reports were almost a hundred percent in 2020 and 2021 said all employers are complying with all COVID-19 protective requirements you're like wow then in the fall of 2021 the auditor general released an audit of the regime and they went through the inspection files and they found that the files actually provided little assurance of protection for health and safety because there was no or little evidence of compliance in the files they found that in 2020 three quarters of the quarantine inspections did not provide evidence of compliance and yet the employer was found to comply almost 90% in 2021 and over a third of the files lacked any documentation even when asked to show that the workers received the quarantine okay and the auditor general said we have no evidence here that the money actually went into the pockets of the workers during quarantine or that this money was spent on upgrading housing and as to general living conditions they found that and this is just like the basic stuff that the government is supposed to be doing like is the running water is the housing overcrowded is the housing free from health and safety risks the departments collected almost no information on any employer but still deemed the employer's compliant and some of the reports actually had clear evidence that rules were not being followed and yet there was no evidence of government follow-up and the employer was still deemed compliant and then these positive inspection reports were used to release to the employer additional supplemental COVID-19 support funding so they got more money after potentially not doing what they were supposed to do with the first bags of money and there were unconscionable delays with outbreak inspections 80% of files showed a one to two month delay between when there was notification of an outbreak and when the department looked into the outbreak and one to two month delays means there was no opportunity to actually verify the quarantine conditions when people were in quarantine and take action when needed and one outbreak file the employer was unusually interviewed just seven days after the case was opened and in the interview the employer testified that the foreign workers who tested positive had not been placed in separate accommodations so they were violating our new regulations and employment and social service employment and social development Canada did not do anything did not respond to this information for more than a month and the follow-up was to ask the employer to provide isolation accommodations that complied with the law and to send us a photograph to prove that there was separate accommodations and four months later when the file was being reviewed the photographs hadn't been sent the employer had sent nothing and the government had not followed up either so the auditory general's report it um it lined up with much of what migrant advocacy groups were claiming during the pandemic and one group uh migrant workers alliance changed um they set up a phone line for migrant workers in southern Ontario and Spanish and the purpose of this phone line is is they they they share information legal information with migrant workers and they compiled a report of calls from March to May of 2020 just three months and they had 300 calls about not receiving quarantine wages they had 500 calls about inadequate food being provided during quarantine they had 160 calls about quarantine conditions not permitting social distancing and those housing conditions which I mentioned already ain't that great um became worse for many workers after left quarantine because remember that COVID rule that said that workers who bunked together didn't need to be physically distanced when working so some employers increased the number of people sleeping in the already overcrowded bunk houses so I think you've guessed who my sacrificial lands are now some workers tried to sort of push back more directly and two migrant workers in British Columbia invited um members of the migrant support group to to visit but the employer had created a workplace rule and these rules were happening at all um seasonal uh farming work sites across Canada workers could not have anyone enter their bunk house or their property and they were not allowed to themselves leave the property all in the name of COVID-19 now I'm not just talking about those provincial lockdown moments when we're all stuck in our houses I'm talking about the whole time they were there they were not allowed to leave and no one could come in these two migrant workers invited um uh members of the migrant support group to come the employer found out about those visitors fired the workers for non-compliance right which the employer has the right to do and the two were then deported didn't work out so well there let's to go back to Mr. Flores so that was the guy who was fired after raising concerns about COVID-19 safety after his bunk mate died as mentioned he already had community and legal contacts he was outside of the control of his employer so they brought an action but it wasn't under the migrant worker regime it was under provincial occupational health and safety and he argued that he'd been wrongfully dismissed as a wrongful depra sorry he'd been dismissed as a wrongful reprisal for raising health and safety issues um he was successful he got $25,000 in damages he was unable to find another job that's it for him going forward um we've had a couple of really good changes I keep taking I know it's good of a seesaw um so Canada has a policy under which migrants with temporary work permits that are employer-specific like our seasonal workers they can get an open work permit that's also temporary it only goes as long as the original one if they prove abuse and improving abuse isn't that easy but anyway in June 2021 Canada revised that policy um to define abuse between us including abuse specific to the context of COVID-19 which is good right it it creates a situation where people are more likely to get out of danger and here's the grounds that they said are now abuse and you they shouldn't be a surprise team but in a fact you know what's happened here is that the workers have been downloaded the job of policing their employers because these are exactly the sorts of employee employer behaviors which the inspection should have been monitoring and correcting for this is about a failure to comply with the law this should have been happening at a system level but the government failed to do so so it's now downloaded on the workers um but also recall these protections are built in a system that generates precarity which is still largely in place and in particular employers still unilaterally decide who to call back the next year so any employee who walks because the employer is violating the COVID-19 health and safety rules they're not going to get hired back by anyone next year right once recall there's this coercive marriage of southern poverty and northern legal exceptionalism so i'm going to wrap it up and hopefully allow us some time and space for some uh conversation and this has got just a random little bunch of headline things so so i talked today probably too quickly um about migrant workers in Canada i talked about how the COVID-19 pandemic is is playing out for that diverse community um it made many workers who are already vulnerable far more precarious it heightened their health and safety risks especially those working in the essential industry of agri-food and for a few um migrant workers though such as those working in health care roles in places like long-term care homes and some other streams that i didn't i didn't raise today it opened some surprising doors it granted some welcome stability and you know that the guardian angels program and it was consistent with other initiatives at federal and provincial levels initiatives to recognize and financially reward citizens and permanent residents who were working in certain jobs remember you know cashiers they got hero pay because grocery stores were seen as a serious you know COVID vector health risk area hero pay it was an incentive an incentive that was offered to try to keep people working in those jobs refugee claimants and failed refugee claimants working in frontline health care they became guardian angels because in theory in the imagination of middle-class Canadians who do not understand the choicelessness of precarity because it was believed that these individuals could have switched jobs but selflessly chose not to right so the entire set of conditions under which these individuals are living in Canada in a precarious status taking a job and they can get no other job um that's erased by this this labeling of of a guardian angel and how things are getting imagined on the other hand the migrant workers working in agri-food they had no real option but to continue working um and you know for those in the healthcare positions their respected employers were very well served by some migrant workers these pending and failed refugee claimants now potentially becoming permanent employees right the the employers would not object to that measure they would they would they would welcome it on the other hand employers in agri-food I'm not going to say all but many they are well served by an isolated migrant labour force which they can at their absolute discretion choose to rehire or not every year and you know I know that Canada is effectively subsidising agri-food by providing a workforce that will work under conditions and low wages that Canadians largely will not abide by so although agricultural work was deemed essential those workers were kept disposable and their their lack of political voice I mean so extreme you know so that those measures that I took you through those really great measures that were enacted to protect them from COVID-19 were left they were left unenforced what I didn't mention before is that the the auditor general gave um employment and social development Canada an interim report in December of 2020 right after the first summer of COVID in that interim report they told them that these inspections are inadequate you've not found compliance these responses to the outbreaks they're not complying with the law get on it employment and social services Canada said don't worry we're going to fix it for 2021 season and you may recall the 2021 season was when they determined that 100% of employers were compliant but the act but the the auditor general found that 88% of the files did not demonstrate compliance and those measures that got enforced like only those who bunk together can work side by side ended up putting some workers at higher risk and worsened their living conditions and let's not forget the differential treatment at the border of under under COVID-19 of migrant farm workers and those would be refugee claimants now the last update that I could find on the situation that was from a two month school January 20th there were at that moment there were 275 migrant workers in southern Ontario in quarantine due to an outbreak and on January 22nd so just under eight weeks ago another 40-year-old migrant worker from Jamaica died of COVID so all of this sad I know gone this seesaw I personally don't think that the window has shot on policy reform I think it's still open and that we're going to continue to see efforts at reform and I'm extremely hopeful that the the public eyes that have been opened on these conditions through the last two years are going to help bring about the kind of significant reforms that that are clearly needed and that's where I'm going to end my formal comments I'm going to stop sharing my screen and I'm going to hope that some people have some questions or queries or something thank you so very much Constance this is this is certainly a very depressing note to end our series on but I think that unfortunately many of the COVID related topics are very depressing because and this does fit in with the series the series focus this year was sort of beyond recovery right and how do we manage to to move into a way of not just recovering or going back to the way that things were before the pandemic but rather changing the way things were before the pandemic and I think that we've seen that a lot in the context of many areas that were significantly deficient whether it's uh well the migrant worker field and generally immigration or prisons or long-term care that the COVID has really shone a light on all of those significant problems and significant issues that existed and I take your point you were saying at the at the very end of the talk that you're sort of reframing this that yes the government has significantly failed in not necessarily that the policies were not good but the way they were implemented or the way they were overseen was was was so problematic right that it in fact it only replicated the oppressive and marginalization of migrant workers or actually even further that but but you ended up on this very positive note saying you know there is still room for you know reform and and and I take that and I think you know that has been said about other areas as well that now perhaps we are listening more now perhaps you know we have seen more because of the attention that has been paid during COVID and maybe now we can it's time for action so I think my question to you before I get to to the q&a box my question to you is um you know I mean I guess it's to fold it on one hand you know the time arguably the time for action was when when the need was highest when the government has such a strong incentive to to do better right that there's never been a time probably in the recent history then this was more of an incentive in terms in in the sense that you know we really needed this these migrant workers both to come to Canada and do the work but also to do this kind of work so that that Canadians did not want to do for for for public health reasons and personal health reasons so if that didn't happen then and there were so many ways of covering that um isn't there a concern that the incentives are only going to be sort of dropping for that to happen and that um you know even the public eye yes it's wide open but as as a sort of COVID wears out people are moving on to other concerns so um how you know how should this pressure look like I guess for the reforms and the lesson learns during COVID to actually be implemented so that's one and and two um what would those significant reforms look like how how will they actually change because it seems that it's almost like a cultural change beyond in terms of as you noted you know the way we understand I love that southern poverty and order legal exceptionalism it seems that it's more than a legal measure or policies we've seen those are plenty but rather it's almost a culture that all these parts of the system need to need to engage with um yeah so those are just some of the thoughts that that came to my mind yeah so um so it's the places where uh where we need to see these changes where I do believe these changes are going to come it's really about the underlying structure right you know so COVID was a disaster in terms of how well it was managed in in many ways not entire like it kind of did a pretty good job at um all kinds of ad hoc measures that got thrown into place when it became apparent that farms were failing to do what they were supposed to do um so for example um in British Columbia they took over doing all of the quarantining and isolation housing and in southern Ontario they also began using hotels and other facilities to create a safe place for people to actually be isolated because the the uh the farm owners were not doing these things so we did have these moments of sort of ad hoc federal intervention during COVID which I think were were fairly you know effective um but it's the underlying system that's the real problem and in in particular it's you know the housing and how that is addressed and it's these closed work permits and the the structure of the agreements between the home states and Canada and we saw some interesting pushback from home states this year so um at one point um Mexico told Canada that they weren't going to send any more workers unless the housing conditions that um people were quarantining under were addressed because they had received sufficient communications they were actually willing to put these contracts on the line um and so and Canada and changes were made to address those complaints by source countries um not all source countries did um such good stuff so Jamaica I was mortified um Jamaica realized that they were sending people into high risk settings like these massive congregate settings and what Jamaica did was they required everyone who was coming to Canada uh to work as a seasonal farm worker to sign a waiver that they would not hold the Jamaican government responsible um if they had any if they contracted COVID and had any repercussions or died from it so they signed their life away and they they still came because of the the southern poverty but I've kind of digressed a little bit um coming out of the pressures that I think were um augmented during COVID there is a massive housing review that's going on right now that is and the problem one of the problems with housing is that housing is um regulated provincially and so there's been like this jurisdictional um you know the federal government's responsible for this program but the housing is provincial and so it's just too complicated for us to figure out since the various government entities involved um there is now a concerted effort to try to bring together these regimes sort of like um I don't know like a Jordan's principle uh but for you know migrants right to recognize that we can't allow these these sorts of gaps to continue and um different um migrant advocacy groups who you know are people you know NGOs there's a lot of migrant workers themselves who are leading members of these groups um they are compiling very extensive reports and identifying these sorts of changes that they would say would make the difference on the ground and this is um super important I think we've seen this through over a lot of sectors in the last few years the shift between um academics me sitting in my chair saying this is what people need for their housing versus the people who are doing these jobs identifying what specific changes they need to see in place for them to feel safe and and and respected so we have some some housing things happening and you know we saw a little bit of move with this this recognition of abusive work conditions being being broadened um I think that that's kind of opened the door a little bit and I think we're going to see a bigger push for open work permits um and I think the auditor general is really angry with the um uh with the federal government um about how they've managed things um and so I'm hoping we're going to see some some some pressure there as well so I kind of answered your question but I slipped in a few other things on this side no that's uh that's great and I'm actually quite happy to hear that there is more going on as a result of this than I actually imagined because in the other areas that are more familiar with I know it's all talk and very little action like we're all like oh we should change things and nothing there's nothing really in so this is actually quite promising so I can see why you are more optimistic I guess about that that despite the poor results yeah and at my last count there are 20 lawsuits that have been brought against Scotland's sweet pack growers um on by or on behalf of migrant workers who worked there over the last two years so if you want to see um a cultural shift in how employers behave and how these agreements get negotiated and how laws get respected um I think litigation is unfortunately um well it's a very powerful tool if you manage to mobilize it and it's getting it's getting mobilized um I don't want to monopolize sorry but no I was because I do now that you just mentioned it I do have one very quick question um and I would encourage people if they have questions to put them in the q and a I know there are a couple um we are not letting people um speak live but please any comments that you have know them in the q and a um but in in those terms um has there been any movement that you know of in terms of access to justice for migrant workers in terms of um all these lawsuits that are going on right you'd probably require legal counseling and you require all those things and of course um these people are are not people of means is there any kind of support for them in bringing these actions are there certain organizations that are doing work on behalf of migrant workers pro bono work on behalf of my it's all it's all pro bono so it's uh legal aid offices um and it's migrant worker alliances and organizations that are are working extremely hard to do things sometimes they have um legal counsel supporting them sometimes they they don't um and they're using other legal information resources to to move things um and it's it's really hardening like i'm i'm i'm very i'm mortified that we have hit such a low place and i have such um belief in these grassroots informed um organizations to to push things um and on that note actually we have uh we have one of those represented here so um if you're looking and the chat box and i think that everybody has access to the chat box um they see uh gomez is writing that she is part of this organization called no one is illegal which is set in Halifax and um they are engaged in mutual aid support with migrant workers throughout Nova Scotia so um if people are interested in getting involved and are interested in uh working with this organization and supporting uh the efforts of the migrant workers and on all the issues really that you've heard about from a professor McIntosh today you can you can reach uh you should reach out to uh to no one is illegal and um there is a there is an email address in the in the box there um outreach at migrant justice uh ns.ca so um do do that thank you for sharing this uh Stacey and Stacey has also shared an star article on the issues regarding migrant workers uh and uh uh uh complaints within the Nova Scotia context that's also in the in the box thank you for that um so uh there is there are a couple of questions that i want to i want uh to put to you um from uh the the audience one of them is uh similar to i think in certain ways to my question regarding uh push it for change and but but it's uh it goes a little more specific and it says uh uh could the system of on work site independent observer or advocates reporting to social justice community organizations work uh who in turn the whole industry and government accountable would that be something that perhaps could be uh um created or implemented within the system to ensure i guess oversight and accountability um so yeah so i think you know it's it is the um independent observers and advocates uh who are generating um our first hand knowledge of this disjuncture between what the rules say which look like i think they're problematic but they don't look horrendous but this disjuncture between what the rules say and what's what's actually happening and these organizations do produce you know very well researched and carefully documented reports on on findings um so they're doing that the challenge of course is getting those who are responsible for enforcement pay it in attention and and and acting um but yeah i think it'd be fantastic if we had a formal formal arms length inspection bodies that were peopleed by you know representatives so you know i would include in that um you know in this organization you know groups who represent the industry side of things who are doing these on-site inspections along with the advocates along with the representatives of the migrant organization i put them all together in doing these inspections um and i think that would be great i don't know that there's federal appetite but who knows right like i like i said i think that this this window is is cracking more open um than it has in a very long time and okay so i asked so that someone asked what institutions took the lead in the guardian angel program um it once again the guardian angel program it was a result of um uh refugee advocacy groups pointing out that um refugee claimants and failed refugees had contracted COVID working in long-term care homes from the Canadians that they were looking after so a lot of press work was done to inform the public of what was happening and who was now looking after everybody's you know aging mom and dad or brother or sister and i think that that helped to turn the public tide and then it was an idea from unbelievably uh premier the goal in Quebec was the one who said that he thought he would create a special program like what Quebec is being welcoming to one of the criteria was that they had to be able to speak French but anyway um in the Quebec version of this program and then Canada developed one as well so it started as an inkling of Quebec um to they said to thank these selfless people um and then the the feds came on board as as as well with a federal program also called um guardian guardian angels um and yeah public versus private ownership structure may well have been part of it you know it's hard to it's hard to track causality with these sorts of policy changes um so it's really the question that you're responding just in case oh i'm sorry so the question i was just trying to respond to was about which institutions to believe in developing the guardian angel program um and about the um whether the ownership structure private versus public might be relevant and so i'm just going to see a question from Sheila which refers to this failed human rights complaint um and she asks if the statutory human rights system is a source for systemic remedies um or where the main barriers to a meaningful response from statutory human rights system so um let's see part of why human rights complaints um don't work out so well for migrant workers is because those in farm situations are exempted from almost all workplace standards so they are statutorily excluded and working in this state of exceptionalism and with that human rights complaint that i referred to it was a um it had to do with a worker who had had died and the family wanted an inquiry into his death like a workplace inquiry and it was denied and they brought a human rights complaint because death workplace inquiries are mandated when the death occurs in mining or construction and they argue that it should also take place when it's a migrant worker working in agriculture because of their level of vulnerability and the invisibility of their death and the human rights commission found that despite this gross vulnerability that the standards for inquiry were not met and so this wasn't discriminatory and the reason why they weren't met was because and this is basically boiled down to in mining and in construction when people die they die in all kinds of different ways and so there's lessons to be learned about preventing future deaths through an inquiry but when people die in uh farm sites the most common cause is tractor rollovers and equipment like pulling equipment problems and so because we already know how they mostly die there's no point in having an inquiry and that was how this individual died as well it was when a um uh a large uh tobacco uh like two thousand pound a tobacco container fell over on him when it was being lifted so the court said this isn't discriminatory because we already know how they die um it wasn't a very satisfying human rights complaint to uh to read um we okay so there's do you want me to read the next one sure um so there is a question here oh um i'll actually go to the last one because it's related somebody's asking is there a place for complaints to labor boards um so yes in so for the legislation that they haven't been left out of right so some legislation excludes them um for health and safety though they haven't been excluded under health and occupational safety legislation so complaints can be brought through that method the hard thing though is that as soon as someone um looks like they're going to bring a complaint um the the the farmer can repatriate them ostensibly on the ground of non-compliance they can put them on a plane that day and once the person you know is is back in a southern Caribbean source country it's extremely hard for them to bring any sort of legal action right they're not going to be permitted to come into Canada to testify maybe with zoom the situation might moderate somewhat but basically once they're gone they can't get that claim filed and they're never going to get a job again working in industry with the current system so one of the many things that we need to get rid of is the employer power to without reason um not recall workers in subsequent years right they need to give a justification that doesn't show an abuse of discretion to not recall a worker and we also need to um uh uh create oversight of the exercises of power by the employer to deport right it cannot merely be a consultation with the home consulate there needs to be once again an independent body who can determine if the the repatriation um is is legitimate uh or if it's once again an abuse of that discretionary power um and I don't think that's happening okay um so we have one more here um that's asking you what is the relationship between agricultural exceptionalism and the precarity of the seasonal workers program and does the Canadian agricultural exceptionalism um uh or rather is that the basis for this kind of labor exploitation so that's a complex question to answer so in agriculture as mentioned we we you know an average work week is going to be 80 hours and that's a okay um because of the exemptions from um uh our labor rules and you can work seven days um a week and and so on only have a vacation day every 10 um so agriculture exists differently and that's because of the the growing season that's how it's justified so we're starting with that situation um and I think the the real source of the um exceptionalism for the seasonal workers is that they are racialized people from the south who often speak no english and you know the difference that getting one of these jobs makes is they'll be able to afford to send their children to junior high school um which would otherwise be unattainable to them so you know this system has developed which like nobody would be applying for these jobs if it didn't make such a fundamental difference in their lives and that's why this sort of these rules and these practices can remain in place is that there will always continue to be desperate people who will work under these um unconscionable conditions and I think that is unless there is um uh any other kind of question we're gonna have to sort of wrap it up at this point uh I think we could probably carry on talking for the rest of the day um but I just want to note uh Stacey's comment in the chat as well uh she is uh noting that um she's noting that uh no one is illegal is organizing an online webinar on sunday march 20th at one p.m. uh where they will discuss the state of migrant worker rights in Nova Scotia so this is part of the national day of action calling for full and permanent immigration status for all migrants um and um Stacey's providing a link where people can uh uh find find that more about it or register for the event uh thank you for that okay so uh thank you so much Constance uh for for this very engaging presentation and discussion clearly it has gathered a lot of interest and um for those of you who uh want to re-watch or share it with others uh uh the uh the session is recorded and will be available tomorrow on Schulich School of Law YouTube channel um and um that's it for for today that's it for our health law institute seminar series for this year stay tuned for next year and thank you so much for attending and thanks again Constance you're welcome thank you bye bye thanks everybody