Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 29) sur le travail forcé, 1930 - Canada (Ratification: 2011)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Canada (Ratification: 2019)

The Committee welcomes the Government’s first report under the Protocol of 2014 to the Forced Labour Convention, which was ratified by Canada in 2019, and the detailed information provided by the Government in this respect. It also takes note of the observations of the Canadian Labour Congress (CLC) received on 31 August 2021; the observations of the Quebec Interprofessional Health Federation (FIQ) received on 10 February 2022; and the Government’s reply to the FIQ’s observations.

Articles 1(1) and 2(1) of the Convention, and Article 1(2) of the Protocol. National policy and systematic and coordinated action. Trafficking in persons. The Committee notes the Government’s information on the results of the Horizontal Evaluation of the National Action Plan to Combat Human Trafficking (NAP-HT) for the period 2012-2016, which involved the nine federal organizations. The Evaluation concluded that: (i) the NAP-HT increased awareness and understanding of human trafficking among federal government officials; (ii) it had a limited contribution to the investigation and prosecution of human trafficking cases; and (iii) there is a need to further focus on trafficking for the purpose of labour exploitation, improve data collection, ensure alignment between federal and provincial responses, and increase support for populations at risk. Following this evaluation, the National Strategy to Combat Human Trafficking 2019-2024 was launched which is based on five pillars: (i) empowerment of victims; (ii) prevention; (iii) protection; (iv) prosecution; and (v) partnership. According to the 2019-2020 Annual Report of the National Strategy, a Federal-Provincial-Territorial Trafficking in Persons Working Group has been set up to facilitate coordination and information sharing at all levels. The Committee further notes that the provincial government of Ontario adopted the Ontario’s Anti-Human Trafficking Strategy 2020-2025, which envisages actions to enhance community-based and indigenous-led services to support indigenous victims of trafficking. Likewise, the provincial government of Alberta launched an Action Plan to Combat Human Trafficking, which provides for the creation of a human trafficking task force to share information and coordinate action on an on-going basis. The Committee welcomes the continued efforts of the Government to strengthen action against trafficking in persons, at both federal and provincial levels, and to monitor its results. It requests the Government to continue providing information on the measures adopted under the National Strategy to Combat Human Trafficking and their results, indicating how coordinated and systematic action between the federal government and the provinces/territories is ensured through the Federal-Provincial-Territorial Trafficking in Persons Working Group. Lastly, the Committee requests the Government to continue providing information on the measures adopted at the provincial level to combat trafficking in persons, including in the framework of the Ontario’s Anti-Human Trafficking Strategy and the Alberta’s Action Plan to Combat Human Trafficking

Article 25 of the Convention and Article 1(3) of the Protocol. 1. Definition and criminalization of trafficking in persons (exploitation). The Committee recalls that pursuant to section 279.01 of the Criminal Code, every person who recruits, transports, transfers, receives, holds, conceals, or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence. Section 279.04(1) of the Criminal Code provides that, for the purpose of section 279.01, a person exploits another person “if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service”. The Committee notes in this regard the Bill S-224 An Act to amend the Criminal Code (trafficking in persons), which revises section 279.04 (1) and proposes a new definition of exploitation, according to which: “a person exploits another if they engage in conduct that (a) causes the other person to provide or offer to provide labour or a service; and (b) involves in relation to any person, the use or threatened use of force or another form of coercion, the use of deception or fraud, the abuse of a position of trust, power or authority, or any other similar act”.

The Committee observes that the objective of Bill S-224 is to eliminate from the definition of “exploitation” (contained in section 279.01 of the Criminal Code) the element of the person’s belief that his safety or the safety of a person known to him is threatened, as a condition for the existence of the crime of trafficking in persons. The Committee hopes that Bill S-224 will be adopted in the near future and that the new definition of “exploitation” would help qualifying the offense of trafficking in persons, thereby enabling more effective prosecutions, and requests the Government to continue providing information on any progress made in this regard.

2. Prosecution and imposition of sanctions. The Committee notes that, according to Statistics Canada, 511 human trafficking incidents were reported to the police in 2019: 67 per cent under section 279.01 of the Criminal Code, and 33 per cent under section 118 of the Immigration and Refugee Protection Act (cross-border trafficking). Of a total of 104 human trafficking court cases involving 356 human trafficking charges, the vast majority (89 per cent) of human trafficking charges were stayed, withdrawn, dismissed, or discharged. Less than one in ten charges resulted in a guilty finding. The Committee observes that the Evaluation of the NAP-HT points out to the difficulties in gathering evidence to prosecute traffickers as well as to the reluctance of the victims to testify for fear of reprisal. The Committee further notes the information provided by the Government concerning various measures to enhance the capacities of law-enforcement bodies involved in the investigation of trafficking cases. At the provincial level, Ontario adopted the Accommodation Sector Registration of Gests Act (which is part of the Combating Anti-Human Trafficking Act, 2021), which contains rules on how and when police services can access information from hotel guest registries to deter trafficking and identify and locate victims. Moreover, a dedicated Human Trafficking Prosecution Team was set up, which today has 14 dedicated human trafficking prosecutors in every region of the province. In Alberta, the Ministry of Labour and Immigration has provided training to staff on human trafficking identification and victims support, which contributed to an increase of the number of investigations from 58 situations in 2019/2020 to 95 situations in 2020/2021. The Committee requests the Government to continue taking measures to address the difficulties faced by law-enforcement authorities in the investigation of cases of trafficking and further prosecution of perpetrators. In addition, the Committee requests the Government to continue providing information on the number of prosecutions, convictions and penalties applied under sections 279.01 of the Criminal Code and section 118 of the Immigration and Refugee Protection Act.

Article 2 of the Protocol. Preventive measures. Clauses c) and d). Protecting migrant workers from abusive and fraudulent practices and strengthening of labour inspection services. Temporary foreign workers. The Committee notes that, in 2021, the Government proposed amendments to the Immigration and Refugee Protection Regulations with the aim to enhance the protection of temporary foreign workers by setting new employer requirements and conditions. This includes a requirement for employers to provide workers with the most recent information about their rights in Canada and to sign employment agreement with their workers. The proposal would also expand the definition of “abuse” (contained in section 209.2(1) of the Regulations) to include reprisal against a temporary foreign worker. It would also prohibit employers and recruiters operating on their behalf to charge or recover recruitment fees from the worker. The Committee also notes that several provincial regulations on temporary foreign workers prohibit the confiscation of a foreign worker’s identity document.

The Committee notes that, in its observations, the CLC refers to the situation of temporary foreign workers who fear deportation if they complain of bad conditions and treatment. In this respect, the Government indicates that, in 2019, the Immigration, Refugees and Citizenship Canada (IRCC) introduced the open work permit for vulnerable workers, which is specified under section 207.1(1) of the Immigration and Refugee Protection Regulations. This type of permit allows temporary foreign workers, who are holders of a valid employer-specific work permit and experiencing abuse or are at risk of abuse, to receive a time-limited open work permit to abandon the employer while keeping the authorization to continue working in Canada.

The Committee further notes that section 209.5 of the Immigration and Refugee Protection Regulations sets the triggers to initiate an employer compliance inspection, namely: a reason to suspect non-compliance, a history of non-compliance, and random selection. Between 2018 and 2020, a total of 11,828 inspections were carried under the international mobility program and one per cent of the employers inspected were found non-compliant. In Alberta, 275 inspections were conducted between 2019 and 2021 by the Special Investigations and Inspections Unit, which related to temporary foreign workers. In Nova Scotia, 71 focused inspections of temporary foreign worker employers were conducted, of which 63 were in the agricultural sector and 8 in the fishing processing sector, and no violations were detected. In Ontario, a province-wide compliance initiative took place between September 2019 and April 2020, which focused on repeat violators, temporary help agencies and workplaces that employ temporary foreign workers. Under this initiative, 831 inspections were conducted in which 277 employers were found not compliant. The Committee welcomes the efforts made by the Government to monitor the working conditions of temporary foreign workers and requests it to continue providing information on the results of inspections of temporary foreign worker employers and employment agencies, including information on the number of violations detected and the penalties applied. The Committee also requests the Government to provide information on the number of vulnerable foreign workers who have benefited from open work permits, as well as on the progress made regarding the adoption of the amendments to the Immigration and Refugee Protection Regulations.

Clause e). Supporting due diligence by both the public and private sectors. The Committee takes due note of the various initiatives taken by the Government to prevent forced labour in supply chains, including by supporting due diligence, such as: (i) the Policy on the Ethical Procurement of Apparel, which requires apparel suppliers to certify that they and their direct Canadian and foreign suppliers comply with fundamental labour rights, including freedom from forced labour; (ii) Amendments to the Customs Tariff Act to include a prohibition on the importation of goods that are produced wholly, or in part, by forced labour regardless of their country of origin; (iii) preparation of Bill S-211 An Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tarif. The Act imposes on government institutions producing, purchasing, or distributing goods in Canada or elsewhere and entities producing goods in Canada or elsewhere or in importing goods produced outside Canada the obligation to report annually on due diligence processes, including on measures taken to remediate any situation of forced labour detected. The Committee takes due note of the above-mentioned measures and requests the Government to continue providing information on further initiatives to support due diligence by both the public and private sectors, as well as on any assessment of their impact. Please also provide information on the progress made regarding the adoption of Bill S-211and on its application if adopted.

Article 3 of the Protocol. Protection and rehabilitation of victims of forced labour. The Committee notes that the Government provides information on the creation of a Human Trafficking Hotline, which is a confidential multilingual service, operating 24/7, to connect victims and survivors with social services, law enforcement and emergency services, as well as to receive tips from the public. It notes the Government’s indication that, under the Canadian Constitution, the provinces and territories are responsible for the administration of justice, which includes the delivery of victim services, and that some provinces have put in place special services for the protection of victims of trafficking in persons.

The Committee further notes the Government’s indication that victims of trafficking in persons can obtain free of charge a special temporary resident permit for victims of trafficking in persons (VTIP TRPs) for up to 6 months, which is not contingent on the victim cooperating with policy and judicial authorities. A foreign national who receives a VTIP TRP that is valid for at least 6 months becomes eligible for an open work permit and for health coverage under the Interim Federal Health Program. According to the statistical information provided by the Government, in 2019, 267 applications for VTIP TRPs were received, 92 per cent of which were approved; in 2020, 131 applications were approved (88 per cent approval rate); and between January-April 2021, 32 applications were approved (90 per cent of approval rate). The Committee requests the Government to continue providing information on the protection and rehabilitation measures afforded to victims of forced labour. In this regard, it requests the Government to provide statistical information on the number of victims of forced labour who have obtained temporary resident permit for victims of trafficking in person, and on the number of victims who have benefited from rehabilitation and reintegration services.

Article 4 of the Protocol. Access to appropriate and effective remedies, including compensation. The Committee notes the Government’s indication that under the Canadian Victims Bill of Rights, every victim has the right to have the court consider making a restitution order. Under the Criminal Code, persons sentenced for human trafficking offences may receive a restitution order as part of their sentence, which requires the offender to pay an amount to the victim. Some provinces have also adopted legislation that provide victims with the possibility to initiate civil action against their traffickers to obtain from them monetary redress. The Committee requests the Government to provide information on the number of victims of forced labour who have claimed and obtained compensation or other forms of remedies. Please indicate how victims can obtain compensation outside legal proceedings or when perpetrators have not been identified.

Articles 1(1) and 2(1) of the Convention. 1. Freedom of civil servants to leave their service. The Committee recalls that under the Public Service Employment Act (section 63) and the New Brunswick Civil Service Act (section 24), the resignation of a public service employee is subject to the acceptance by the deputy head. The Government indicates in this respect that there are no provisions in the Public Service Employment Act that would prevent the acceptance of a resignation, and therefore there are no statistics available concerning the number of refusals. It also notes that the review of the New Brunswick Civil Service Act is still on-going. The Committee requests the Government to continue providing information on any progress made regarding the review of the New Brunswick Civil Service Act.

2. Obligation to work overtime. Nursing personnel. The Committee notes that the FIQ refers in its observations to a long-standing and regular practice of imposing overtime work on the nursing personnel of healthcare institutions in Quebec to fill the existing shortfall of personnel. In particular, the FIQ indicates that according to section 59.01 of the Act respecting Labour Standards of Quebec, an employee cannot refuse to work overtime in situations where there is a danger to the life, health or safety of employees or the population; where there is a risk of destruction or serious deterioration of movable or immovable property or in any other case of superior force; or if the refusal is inconsistent with the employee’s professional code of ethics. It points out that, in most of the cases the employers do not demonstrate the existence of force major but impose overtime based on the code of ethics (which is a part of the labour contract), that prevents the nursing personnel from leaving their functions without ensuring their continuity by another staff member. Those who refuse to work overtime are threatened with complaints against them before labour tribunals. The Committee observers that, according to the FIQ, this practice has negative consequences for the health and well-being of nurses.

The Committee takes note of the Government’s detailed reply to the FIQ, which contains a description of the applicable legal framework concerning overtime for health care workers in Quebec, updated statistics, as well as information about further measures taken to reduce recourse to mandatary overtime work of nurses. The Government indicates that the collective agreement between the FIQ and the Government of Quebec, in force until March 2023, does not specifically regulate mandatory overtime. However, both the Code of Ethics for Nurses and the Code of Ethics for Nursing Assistants provide for the duties of not abandoning the patient and ensuring the continuity of their service. The Government emphasises that the person’s decision to work as a nurse comes along with his or her acceptance to respect the obligations set forth if their respective codes of ethics and clarifies that imposing overtime work on the nursing personnel is a measure of last resort that is analysed on a case-by-case basis. The Committee notes that the Government refers to different agreements between the FIQ and different health care institutions of Quebec that ensure that recourse to compulsory overtime work does not constitute a systematic practice to overcome the workforce deficit but remains an exceptional measure. Jurisprudence has also been developed in the subject underscoring the principles that compulsory overtime work of nursing personnel shall only be permitted in exceptional and emergency situations, and not be used in an abusive, irrational, or discriminatory manner by the employer. According to the statistics provided by the Government, 30 per cent of the nursing personnel of Quebec has worked overtime in a two-week payroll period at least on one occasion in the year 2021–22 (19 per cent has done so up to three times in a year; 11 per cent up to four times or more; and 2.6 per cent have exceeded 100 hours of working time in a two-weeks period four times or more).

Finally, the Committee notes the Government’s indication that in October 2021, the Director of Working Conditions of the Ministry of Health and Social Services of Quebec issued a letter for health institutions indicating different means to limit recourse to compulsory overtime work of the existing nursing personnel, which include: the maintenance of a list of staff available to work overtime on a voluntary basis; reorganization of working plans of the existing personnel; and evaluating the possibility of contracting the services of independent professionals with the required expertise. It also notes that the Government of Quebec has established a system for monitoring the use of compulsory overtime in health services.

The Government adds that the imposition of overtime work on nursing personnel due to the shortfall of nursing staff is an important issue and, therefore the Government of Quebec has expressed its commitment to continue limiting recourse to this practice by supporting the operation of health institutions and improving working conditions of nursing personnel.

The Committee takes due note of all this information and of the commitment of the Government to keep the imposition of overtime work on the nursing personnel of healthcare institutions in Quebec as a last resort measure. While acknowledging the need to ensure the continuity of the health care service, the Committee encourages the Government to continue to pursue efforts to limit recourse to compulsory overtime work of the nursing personnel to exceptional circumstances and take measures to address the issue of shortages of nursing personnel, in consultation with workers’ organizations, so as to ensure continuity of the health care service. Please continue to provide updated statistical information on the number of nurses who have undertaken compulsory overtime work and the frequency in which overtime is required.

Article 2(2)(c) of the Convention. Compulsory labour exacted as a consequence of a conviction in a court of law. Prison labour. The Committee previously noted that in Nunavut and Prince Edward Islands labour appeared to be compulsory for prisoners and requested the Government to indicate if, in that case, prisoners could work for private entities. The Government indicates that the Nunavut’s Corrections Act was replaced in its entirety in 2019. Regarding Prince Edward Islands, it indicates that the correctional facility in that province does not hire out prisoners or place them with private individuals or companies or associations, however inmates can be granted permission to attend work while incarcerated, usually with the individual’s previous employer. The Committee requests the Government to provide a copy of the Nunavut’s Corrections Act, including its regulations, in its next report.