The Charter of Rights and Freedoms and Migrant Farm Workers

“The fight is never about grapes or lettuce. It is always about people.”
– Cesar Chavez, civil rights and farm labour activist

Chavez uttered those words in 1970 in the U.S. For Canada’s migrant farm workers, they may ring as true today as they did half a century ago. It’s not about crops, it’s about fairness. The fight for improved working conditions and better pay, safety from illness, and the right to unionize.

Between 50,000 and 60,000 people a year arrive in Canada from Mexico, the Caribbean, Thailand, Guatemala and the Philippines. It is an annual, granular exercise of sweat, toil, illness and sometimes death. They perform backbreaking work for up to nine months to get food from field to supermarket to consumers’ tables. And then they return home. According to Katherine Lay of the University of Victoria’s Faculty of Law, workers too often have very little job security, no access to health care, and no human rights protections.

Programs that bring migrant workers to Canada include the Seasonal Agricultural Worker Program (SAWP) – initiated in 1966 for workers from Mexico and the Caribbean – and several initiatives under the Temporary Foreign Workers Program. Migrant farm workers often live in crowded bunk houses with little access to amenities like showers. And the COVID pandemic made a difficult situation worse for many. While the federal government provided $150 million to employers to help manage illness due to COVID, the situation for workers did not greatly approve, according to Lay. The rights of migrant workers in Canada are limited. They contract with a specific employer and can only switch employment if their employer and home government approve. They can be fired for non-compliance and work refusals, with little avenue for appeal. 

Yet according to the Government of Canada, “any person in Canada – whether they are a Canadian citizen, a permanent resident or a newcomer – has the rights and freedoms contained in the Charter.”  Section 15 of the Charter guarantees that “every individual in Canada – regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability – is to be treated with the same respect, dignity and consideration.”

“In most jurisdictions … farm workers are at the bottom of the market in terms of skills and union organization,” says Michael Lynk, a professor in Western University’s law school. Along with the construction industry, farm work ranks as the most dangerous work in Canada.

Employment Insurance and Unions

Two areas that have proven especially challenging are:

1. employment insurance – migrant farm workers must pay premiums but often cannot collect benefits, and
2. being denied the chance to form unions.

According to the United Food and Commercial Workers (UFCW), agricultural workers pay premiums under the Employment Insurance Act but cannot claim them. The UFCW says this violates their Charter rights. Most work from February to November each year, must leave when their contract is over, and are unable to claim benefits when they are out of work. According to the UFCW Canada website, “requiring these low wage workers to pay premiums for benefits they cannot receive violates section 15(1) of the Charter of Rights and Freedoms which guarantees every individual’s right to equality under the law and equal protection and benefit of the law without discrimination.”

With respect to unionizing, workers have taken their case to the Supreme Court of Canada. A 2011 decision found that section 2 of the Charter allows for collective bargaining under the guarantee of “freedom of association.” But the Court also allowed the exclusion of farm workers under the Labour Relations Act from forming a union. “In the opinion of many labour relations law academics (it was) one of the most shallow decisions by the Supreme Court,” says Lynk. The decision mirrored a pattern of behaviour that favoured the economic and social clout of farm owners over their often racialized (Latinx and Black) farm workers.

Many consider Ontario’s 2002 Agricultural Employees Protection Act to be a watered-down version of a farm employees’ protection bill. It allowed farm workers to present a petition to an employer, but the employer still had veto rights. Clearly, “your ability to agitate is much more enhanced if you have a union,” says Lynk.

COVID Pandemic

Also according to Lynk, “if ever there was a time when our farm worker rights were shown to be weak,” it was during the height of the COVID pandemic. The health crisis cast light on the “inability of employers to ensure adequate housing and living conditions for farm workers.”

In Ontario, more than 1,000 workers became ill from COVID in 2020 and three died. The province’s deputy coroner made 25 recommendations in a sweeping report that called for increased federal inspection of agricultural operations and a requirement that employers pay workers who were COVID-isolated and unable to work. Other issues identified ranged from dangerous working conditions (by the halfway point in 2021, up to 10 workers died from various causes) to death from cancer (due to pesticide exposure), COVID, or farm machinery mishaps.

Families may receive some compensation following a farm worker’s death. But groups like Justice for Migrant Workers have called for more accountability on the part of employers, including prosecution under the law. In September 2021, a farm operation in southern Ontario’s Norfolk County was charged with 27 counts of breaking the Occupational Health and Safety Act and the Reopening of Ontario Act. Two hundred migrant workers were found to be COVID-positive and one worker died because of the virus. It was the first prosecution of an employer in relation to COVID under Ontario’s occupational health and safety laws.

Understanding Rights & Accessing Supports

The University of British Columbia’s Bethany Hastie says there is a difference between migrant workers and workers who live year-round in Canada. In Canada, “access to courts and tribunals remains a key mechanism for enforcing legal rights … and can serve as a platform for wider reform.” By contrast, migrant workers are hampered by “a lack of knowledge of legal rights and resources and inability to access workplace justice.” And employer-specific, bonded work permits prevent workers from accessing their rights. This hampers their ability to speak out against dangerous working conditions. It also creates a power imbalance between employer and worker that thwarts migrant farm personnel from “converting legal rights into just conditions of work,” says Hastie.

Lynk agrees. “They are here for six to nine months a year. They gain no status for permanent residency. Because they are not allowed a stake in Canada, the provinces and federal government get away with ensuring that their working conditions are modest and that their vulnerability can be taken advantage of.”

The program essentially is a subsidized means for “Canada to try to pursue a low-cost food strategy that means it is borne by these workers who have formal rights” that are never realized,” adds Lynk. Previous governments have had opportunities to pass legislation allowing for unionization of farm workers but shied away because of pressure from homegrown voters – the farmers who employ the workers.

Cobourg, Ontario-based community service group Horizons of Friendship sees the challenges firsthand. It often joins with other organizations to provide services to migrant workers. Its Migrant Worker Outreach Program supports migrant workers’ health, legal, and social matters in the southern Ontario county of Northumberland. The program offers help to the up to 300 workers who toil on the area’s apple, chicken, dairy and vegetable farms.

According to Horizons’ community outreach officer Daniel Quesada-Rebolledo, the biggest barriers are in language differences, access to basic services like health and legal assistance, and social isolation. “One of the key things that I have noticed is the question of freedom of association … some workers want to associate with an organization like us or they want to do outreach with unions but workers will get reprimanded for talking to the wrong people. They don’t have the same freedom of association rights as you or I,” Quesada-Rebolledo says. If there is a dispute, “by the time you file a complaint and get a court date the workers might have been sent back to Mexico.”

Improvements Coming?

In March 2021, the federal government announced measures to protect migrant workers, according to an Employment and Social Development Canada news release. These measures included strengthened workplace inspections, and a “tip line” with multilingual workers “who can help workers better communicate situations of mistreatment or abuse, and [can provide] additional education for workers on their rights.” But activists have said these measures are not enough.

Often, “the attitude (among workers) is ‘keep your head down, get your work done and go home.’” Quesada-Rebolledo adds that groups like Horizons fill the gap when governments fail to provide necessary services to migrant farm workers.

John Cooper, EdD, is an educator and researcher who has taught journalism and corporate communications at Durham College and Centennial College.