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Court hits exploitative employer hard

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The Manitoba Court of Appeal sent a strong message in a recent case that employers who illegally hire foreign workers will be dealt with harshly. The court made it clear the law will protect foreign workers from being exploited, protect Canadian jobs and will ensure businesses that follow the law when hiring foreign workers will not be put at a competitive disadvantage. This was the right decision.

The court in August was asked whether a conditional discharge given to Jung Won Choi was a "fit" sentence under the law. Choi had hired six foreign workers who were not allowed to work in Canada. At his trial, he was given the conditional discharge, put on supervised probation, and was ordered to make $12,000 in charitable donations. By giving him a conditional discharge, Choi could have ended up with no criminal record if he met the conditions.

The Court of Appeal rightly found the conditional discharge unfit. The court found the accused kept two sets of financial books, which showed illegal foreign workers were paid less than the legal workers. In fact, for one illegal employee, the court found the accused did not pay him directly but instead sent money to his mother.

Allowing foreign workers to work illegally in Canada is bad for business, bad for Canadians and bad for the illegal foreign worker. The purpose of these immigration laws is threefold. First, these laws preserve a competitive balance among employers. Second, they ensure Canadian residents are offered jobs first. Finally, they protect foreign workers from exploitation.

If an employer who breaks the law pays his or her employees less than a law-abiding employer, the employer who breaks the law can get a competitive advantage. The accused in this case did not remit income taxes or other source deductions to the government for these employees, and therefore deprived the government of revenue.

The court said a significant penalty was needed to let other employers know a wilful violation of these immigration laws will result in a conviction and penalty that is "meaningful and not a token."

For Canadians, the immigration system in this case was designed to make the employer first try to find residents for these jobs. By hiring illegal foreign workers, unemployed Canadians were not given a chance to fill these jobs.

For the illegal foreign workers, they faced a greater risk of exploitation -- the illegal workers had no access to workers' compensation, employment insurance or Manitoba Health coverage.

This judgment sends the right message. As well, the fact this was a unanimous judgment of five judges sends a clear signal to all employers any foreigners employed in Manitoba must be employed legally or serious consequences will follow.

Since the Canadian legal system operates in such a way that a decision by any Court of Appeal can significantly influence decisions in other provinces, this decision is truly precedent-setting. Manitobans can look with pride to our courts as it has made it clear the courts are serious about enforcing immigration laws that protect business, Canadians and foreign workers.

In the end, the court convicted the accused and imposed a $15,000 fine. In particular, when talking about the possibility of a conditional discharge, the court said to allow this was not "adequate denunciation." The accused will now have a criminal record.

In the near future, more stringent laws will likely be introduced to protect foreign workers and ensure employers who play by the rules are not put at a competitive disadvantage. In June, Citizenship and Immigration Canada proposed a number of rules that will increase the government's ability to penalize employers of foreign workers who do not comply with the law. While some of these changes, such as the proposed rule that would allow the government to conduct certain warrantless searches of businesses, are excessive, the message is clear -- businesses that break the law will face consequences.

 

R. Reis Pagtakhan is a Winnipeg immigration lawyer.

Republished from the Winnipeg Free Press print edition September 12, 2013 0

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