Catherine Sas, K.C.The topic of illegal workers has been featured prominently in the news recently with Canada Border Services Agency (CBSA) in Vancouver conducting raids on several construction sites with television cameras in tow. This has drawn considerable media attention and has resulted in the BC Civil Liberties Association filing a formal complaint with the Privacy Commissioner against CBSA for filming migrant workers for a reality television series. Putting aside the concern about CBSA and television cameras, the real issue is about illegal workers. Nobody questions that working illegally is improper, but who is responsible for this? The worker, the employer, or both?
Regulation 196 of the Immigration and Refugee Protection Act (IRPA) clearly states,
“A foreign national must not work in Canada unless authorized to do so by a work permit or these Regulations.”
There are some situations in which a work permit is not required. Regulations provide for numerous exceptions to the need for a work permit such as coming to Canada as a business visitor, diplomat, foreign news correspondent, guest speaker, or professional athlete. However, in most situations a person will require a work permit in order to be lawfully permitted to work in Canada. Working illegally without a work permit can result in a person being issued an exclusion order for a period of one year or a deportation order which is a permanent bar to re-entry to Canada. In situations where a person leaves Canada prior to being discovered working illegally, an immigration officer is precluded from issuing another work permit for 6 months after the person has stopped the unauthorized work. The consequences of working illegally in Canada are severe, but what are the potential consequences to an employer for hiring an illegal worker?
Section 124(1)(c) states,
“Every person commits an offence who employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed.”
The Act goes on to state that,
“A person who fails to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized.”
There is however a due diligence defence to an employer who can establish that they took proactive steps to ensure that a worker was legally permitted to work. Employers have an obligation to ensure that the people they are employing are lawfully permitted to work in Canada. It is insufficient for an employer to say that they were unaware whether or not a person was in possession of a lawful work permit. Employers have a duty to ascertain the status of the people they employ and are required by law to exercise due diligence to ascertain the immigration status of their workers. In the event that employers are unable to establish that they have exercised due diligence, they are deemed to know that the worker is not lawfully permitted to work in Canada.
An employer found guilty of the offence of employing a person without a work permit is severe. An employer convicted of a summary offence is subject to a fine of up to $10,000 or 6 months in jail or both. An indictable conviction provides for a fine of up to $50,000 or imprisonment of up to 2 years or both.
The consequences for both employers and employees are significant when it comes to illegal foreign workers. The law is not on the side of employees to compel employers to let them work without work permits. Employers have the ultimate responsibility of ensuring that all of their employees are lawfully permitted to work in Canada.
