Legal Fictions: Exploitation, Human Trafficking, and Canada's Temporary Foreign Worker Program

• In Event: Criminology of Mobility. Panel 9. Contemporary issues related to human trafficking

Abstract

The exploitation of migrant labour in the Temporary Foreign Worker Program (TFWP) arguably aligns with the definition of human trafficking under both international and Canadian law, yet such cases are rarely classified as trafficking. Drawing on a detailed analysis of Canada's Criminal Code provisions and their application to the TFWP, this presentation examines how the anti-trafficking framework perpetuates a false dichotomy between “legitimate” state-sanctioned exploitation and “illegitimate” trafficking.

The presentation points to a clear reluctance to apply the trafficking label to migrant exploitation within the TFWP, creating a situation where state-facilitated trafficking-like conditions become normalized and invisible. Workers under this program face significant restrictions on their labour mobility, are often isolated from society, and experience what courts have recognized as “exceptional vulnerability” due to their immigration status, race, and precarious employment relationships. However, the Criminal Code’s purposeful redefinition of “exploitation” effectively distinguishes state-sanctioned programs from criminal trafficking. This distinction persists even as workers contend with substandard living conditions, inadequate safety protections, and the constant threat of repatriation if they become injured or ill.

While the trafficking label itself carries problematic effects and should not be applied loosely, this labelling perversion shifts attention away from the structural conditions that enable exploitation. The federal government maintains this system while benefitting from workers’ contributions to various programs (e.g., Employment Insurance), despite their inability to access regular benefits due to program restrictions.
The chapter concludes by arguing that the particular framing of exploitation, threat, force, coercion, and related conditions in anti-trafficking legislation can reproduce harm by rendering state-sanctioned exploitation immune from the scrutiny and intervention that the anti-trafficking framework enables. The selective application of anti-trafficking provisions suggests that seemingly neutral legal definitions can serve to preserve and legitimize systemic exploitation but maintain the appearance of opposing trafficking.

Author

• Ann De Shalit, Trent University