Legal Consciousness and Resistance in Carribean Seasonal Agricultural Workers

Canadian Journal of Law and Society

Volumn 20, Issue 2, 2005, Pages 95-122

  Smith, Adrian A ^a  

^a MCGILL UNIVERSITY   (Canada)

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EID: 34247672567     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1353/jls.2006.0027     Document Type: Article

References (67)

1. The SAWP operates in Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Prince Edward Island with most workers going to Ontario and Quebec. The program has recently been expanded to include British Columbia. See HRSD, News Release, “Government of Canada Seasonal Agricultural Workers Program expanded in British Columbia” (20 May 2004), online: HRSD
2. online: International Organization For Migration
3. See e.g. Randy Richmond, “Unwanted migrants taken to ‘safe house'” The London Free Press (22 June 2004), online: The London Free Press
4. Richmond, “A dream undone” The London Free Press (3 July 2004), online: The London Free Press
5. Program administration fell initially on the Department of Manpower and Immigration and the Canada Employment Commission. In 1987 FARMS assumed administrative duties. FARMS processes employer's requests for workers and “communicates the orders to the governments of the supply countries”. FARMS also works with CanAg Travel Services Ltd. the SAWP's authorized travel agent, to arrange workers’ travel itineraries. Employers may request that CanAg coordinate the movement of workers from the airport to the farm. Some commentators have argued that the inclusion of industry representatives in the administrative and design aspects of the SAWP constitutes an important or best practice. See Philip L. Martin, “Managing Labor Migration: Temporary Worker Programs For the 21st Century” (Geneva: International Institute For Labour Studies, 2003) at 23, online: International Labour Organization
6. Vic Satzewich, Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945 (New York: Routledge, 1991).
7. For additional political economic accounts see Irving Andre, “The Genesis and Persistence of the Commonwealth Caribbean Seasonal Agricultural Workers Program In Canada” (1990) 28:2 Osgoode Hall L.J. 245 (locating labour migration in the historically rooted and on-going process of “third world” labour exploitation, that is “as the logical outcome of a historical process or, indeed, the result of a conscious rational policy rooted in the political economy of the Commonwealth Caribbean)
8. Nandita Rani Sharma, “Birds of Prey and Birds of Passage: The Movement of Capital and the Migration of Labour” (1997) 30:1 Labour Cap. Soc. 8.
9. But see Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters (Montreal & Kingston: McGill-Queen's University Press, 2002) [Basok, Tortillas and Tomatoes] (arguing farm labour migration occurs not necessarily because of cheap labour but “captive labour” as, to put it simply, the natural environment dictates the picking and production schedule. The cheap labour rationale, contends Basok, is based on the outdated notion of the family farm)
10. David Griffith, “Peasants in Reserve: Temporary West Indian Labor in the U.S. Farm Labor Market” (1986) 20:4 International Migration Review 875 at 881 (“Coming from poor nations West Indians constitute a willing, reliable, and highly docile labor force. Most importantly, the West Indians constitute a captive labor force: they are certified to work for a single apple or sugar company and they have no freedom to move on to other, subjectively better jobs the primary reason for their desirability is that they are captive”). A commentator in the United States has argued that the corporatization of farming may present union organizing opportunities for farm workers. The accumulation of capital and other assets by corporate farms will allow the pool of workers to reach a critical mass at these farms from which union mobilization efforts can be launched.
11. Rebecca Clarren “Got guilt?” Salon.com (27 August 2004), online: Salon.com.
12. Kimberly Knowles points out that all but four of the thirty Jamaican workers she interviewed complained about the strenuous nature of farm work in Canada. Knowles, The Seasonal Agricultural Workers Program in Ontario: from the Perspective of Jamaican Migrants (M.A. Thesis, University of Guelph, 1997) [unpublished] at 73–75. The work can also be deadly. In August 2002, for instance, Ned Livinston Peart, a Jamaican migrant worker, was crushed to death by a 12000-pound kiln of tobacco on a farm in the Brantford Ontario area. A coroner's.inquest has not been called into Peart's death despite vehement calls from family members and activists. In other respects, the Ontario College of Family Physicians released a report linking the use of pesticides to a number of forms of cancer and other serious illnesses. A principle finding was that exposure to agricultural chemicals on the job may lead to adverse reproductive effects, including birth defects and fetal death. See Systematic Review of Pesticide Human Health Effects, (2004), online: Ontario College of Family Physicians
13. The formal shift in immigration policy has been recounted by Satzewich and others. See e.g. Satzewich, “Racism and Canadian Immigration Policy: The Government's View of Caribbean Migration, 1962–1966” (1989) 21:1 Canadian Ethnic Studies 77.
14. For a comparative examination of the rights afforded to migrant workers, see the Commission for Labor Cooperation, “Protection of Migrant Agricultural Workers in Canada, Mexico and the United States” (Secretariat of the Commission, 2002), online: Commission for Labor Cooperation
15. For a recent look at the socio-economic plight of migrant workers in the United States, Canada and Mexico, see R. Hinojosa-Ojeda, et al. “The Extent, Pattern, and Contributions of Migrant Labor in the NAFTA Countries: An Overview” (Los Angeles: The North American Integration and Development Center, 2000), online: The North American Integration and Development Center
16. See also Basok, The Extent, Pattern, and Contributions of Migrant Labor in the NAFTA Countries: An Overview 14
17. R.G. Cecil & G.E. Ebanks, “The Human Condition of West Indian Migrant Farm Labour in Southwestern Ontario” (1991) XXIX:3 International Migration 389
18. Satzewich, International Migration 12
19. Min Sook Lee's awarding- winning documentary “El Contrato” (National Film Board of Canada, 2003).
20. Satzewich, “El Contrato” 12 at 42.
21. See also Satzewich, “Unfree Labour and Canadian Capitalism: The Incorporation of Polish War Veterans” (1989) 28 Studies in Political Economy 89
22. Robert Miles, Capitalism and Unfree Labour: Anomaly or Necessity? (New York: Tavistock, 1987)
23. Ellen Wall, “Personal Labour Relations and Ethnicity in Ontario Agriculture” in Vic Satzewich, ed. Deconstructing A Nation: Immigration, Multiculturalism and Racism in ‘90s Canada (Halifax: Fernwood, 1992). The term unfree labour is used in contrast with free or wage labour which, in Marxian terms, refers to mere economic compulsion. Marx did not actually employ the term in his work.
24. See e.g. Miles, Deconstructing A Nation: Immigration, Multiculturalism and Racism in ‘90s Canada.; Jairus Banaji, “The Fictions of Free Labour, Contract, Coercion, and So-called Unfree Labour” (2003) 11:3 Historical Materialism 69
25. Tom Brass, “Why Unfree Labour is Not ‘So-Called': The Fictions of Jairus Banaji” (2003) 31:1 J. Peasant Stud. 101.
26. See Tanya Basok, “Free to Be Unfree: Mexican Guest Workers in Canada” (1999) 32:2 Labour Cap. Soc. 192.
27. For a searing attack on the capitalist notion of freedom that was so freely perpetuated in the work of neo-classical economists like Milton Friedman see C.B. Macpherson, “Elegant Tombstones: A Note on Friedman's Freedom” in Democratic Theory: Essays in Retrieval’ (New York: Oxford University Press, 1973) 143.
28. Basok, Democratic Theory: Essays in Retrieval 30 at 218.
29. See also Basok, “Post-national Citizenship, Social Exclusion and Migrant Rights: Mexican Seasonal Workers in Canada” (2004) 8:1 Citizenship Studies 47 at 50 [Basok, “Post-national Citizenship”] (arguing “[t]o formulate claims individuals and groups need to understand that they are denied legal rights and that extant legal or human rights frameworks make it possible for them to seek redress. These individuals and groups also require communication skills to translate their understanding
30. Interestingly, female domestic migrant workers entering under the auspices of what is now called the Live-In Caregiver Program have won the opportunity to apply for permanent residence status after two years of service in Canada (within three years of their arrival in Canada). Researchers have shown that the advantages of permanent residence status have quite often eluded female domestic workers in Canada. See e.g. Daiva K. Stasiulis & Abigail B. Bakan, Negotiating Citizenship: Migrant Women in Canada and the Global System (New York: Palgrave, 2003).
31. To be clear, Basok acknowledges this point. Basok also describes an incident during the course of research interviews of Mexican migrant workers which supports the view that workers likely know little about their legal entitlements. On this occasion, Basok and research assistant Nicole Noel were “bombarded” with questions about legal rights by workers. The pair later conducted a legal education session in which about 200 workers participated. They also arranged for representatives of the Occupational Health Clinics for Ontario Workers to conduct an information session. Basok, “Post-national Citizenship”, Negotiating Citizenship: Migrant Women in Canada and the Global System 35 at 52–53.
32. Ronald Dworkin, Law's Empire (London: The Belknap Press, 1986) at 410
33. Lesley Jacobs, “Legal Consciousness and Its Significance for Law and Society Teaching Outside Canadian Law Schools” (2003) 18:1 C.J.L.S. 61 at 64.
34. Austin Sarat, Lawrence Douglas, & Martha Umphrey, eds. Lives in the Law (Ann Arbor: University of Michigan, 2002) at 10.
35. Klare has described his politics as traditional leftist and Kennedy's as modernism/post- modernism, or MPM. See Karl Klare, “The Politics of Duncan Kennedy's Critique” (2001) 21 Cardozo L. Rev. 1073 at 1083, especially 1088–1093 [Klare, “Politics”].
36. As Richard Bauman argues, this adherence to Marxian (and Hegelian) philosophy is likely more about “inspiration rather than models strictly to be followed”, see Bauman, Ideology and Community in the First Wave of Critical Legal Studies (Toronto: University of Toronto, 2002) at 44. Klare reiterates these sentiments about Kennedy, noting Kennedy's acknowledgement of “Marx's influence” but arguing that “the strand in Marxism looking toward insurrectionary seizure of the organs of state finds no resonance in Kennedy's work; if anything, it is treated as a dangerous fantasy”, see Klare, Cardozo L. Rev. at 1089. The discrepancies between the critical legal understanding of legal consciousness and what might be deemed Marx's own understanding cannot be explored in detail here. An appropriate starting point for such an exploration might be Marx's Preface to the Critique of Political Economy. “Consciousness,” as Marx put it, “must be explained rather from the contradictions of material life, from the existing conflict between the social productive forces and the relations of production.” The Marxian legal project underwent a serious revision in the late 1970s and early 1980s. Neo-Marxian critiques adopted the relative autonomy of law thesis as a response to questions about determinism.
37. See e.g. Issac Balbus, “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law” (1977) 11 Law & Soc'y Rev. 571
38. Steven Spitzer, “Marxist Perspectives in the Sociology of Law” (1983) 9 Ann. Rev. Soc. 103
39. Alan Stone, “The Place of Law in the Marxian Structure-Superstructure Archetype” (1985) 19:1 Law & Soc'y Rev. 39
40. Eric Tucker, “The Law of Employers’ Liability In Ontario 1861–1900: The Search For A Theory” (1984) 22 Osgoode Hall L.J. 213.
41. See e.g. David Kairys, ed. The Politics of Law: A Progressive Critique, 3d ed. (New York: Basic Books, 1998)
42. Alan Hunt, “The Ideology of Law: Advances and Problems In Recent Applications of the Concept of Ideology to the Analysis of Law” (1985) 19:1 Law & Soc'y Rev. 11.
43. Karl Klare, “Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law” (1981) 4 Ind. Relat. L.J. 450 at 451.
44. Karl Klare, “Contracts Jurisprudence and the First-Year Casebook”, Book Review (1979)
45. Patricia Ewick & Susan S. Silbey, “Common Knowledge and Ideological Critique: The Significance of Knowing That the ‘Haves’ Come Out Ahead” (1999) 33 Law & Soc'y Rev. 1025 at 1026 [Ewick & Silbey, “Common Knowledge”].
46. Laura Beth Nielsen, “Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment” (2000) 34 Law & Soc'y Rev. 1056 at 1059.
47. Law & Soc'y Rev. at 1060. See also Patricia Ewick & Susan S. Silbey, “Conformity, Contestation, and Resistance: An Account of Legal Consciousness” (1992) 26 New Eng. L. Rev. 731 at 736 [Ewick & Silbey, “Conformity”], “[t]o know the uses of law, we need to know not only how and by whom the law is used, but also when and by whom it is not used.”
48. Ewick & Silbey, “Conformity”, New Eng. L. Rev. 60 at 736.
49. The discipline is so fragmented that some scholars have even questioned whether non- liberal perspectives on law have a legitimate place in legal professional education at all. See, for instance, the call from then Duke University Law School Dean Paul D. Carrington to banish critical legal studies from the legal academy, and for Crits to resign from their academic positions in law schools, Carrington, “Of Law and the River” (1984) 34 J. Legal Educ. 222. These close-minded and intolerant views continue to haunt legal education in both Canada and the United States.
50. See e.g. Jeannine Purdy, “Postcolonialism: The Emperor's New Clothes?” in Eve Darian- Smith & Peter Fitzpatrick, eds. Laws of the Postcolonial (Ann Arbor: University of Michigan, 1999) 203.
51. Ewick & Silbey, “Common Knowledge”, Laws of the Postcolonial 51 at 1027, note 1.
52. See e.g. Byron Sheldrick, Perils and Possibilities: Social Activism and the Law (Halifax: Fernwood, 2004).
53. Mauricio Garcia-Villegas, “Symbolic Power Without Violence? Critical Comments On Legal Consciousness Studies” (2003) 16 lnt' 1 J. Sem. L. 363 at 367.
54. See e.g. Judy Fudge & Eric Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 (Toronto: Oxford, 2001) at 15 (“our focus on legal institutions [represented in a concentration on “strike-related and trade union activity”] inevitably tends to obscure the texture of daily life against which class relations are played”).
55. Labour Before the Law: The Regulation of Workers' Collective Action in Canada, 1900–1948, at 48–54. In Harry Glasbeek's words, “ it is not necessary that the constructs of private property and private contract have to have a specific meaning or content. Indeed, it would be ahistorical, acontextual, i.e. profoundly anti-Marxian, to hold that the meaning and content of these constructs be written in stone. Historical struggles and material conditions will dictate the scope of these constructs ” See Glasbeek, “Class War: Ontario Teachers and the Courts” (1999) 37:4 Osgoode Hall L.J. 805 at 820.
56. “To assert that liberal law plays a central role in the maintenance and perpetuation of capitalist relations of production,” as Glasbeek asserts, “is not the same as saying that law automatically reflects the needs of capitalism”. This, according to Glasbeek would be “too crude a view of the way in which law works.” Instead, “[l]aw does more than reflect the fundamental needs of capitalism, in part because it is not clear what the precise scope of the needs its has in any one place at any one time”, see Glasbeek, Osgoode Hall L.J. at 819.
57. For an elaboration of the relative autonomy of law thesis see Eric Tucker, Osgoode Hall L.J. 45.
58. Cited in Michael Craton, “Proto-Peasant Revolts? The Late Slave Rebellions in the British West Indies 1816–1832” (1979) 85 Past Present 99. Owners struggle to contain and suppress workers’ acts of resistance to the extent desired for the most efficient extraction of surplus value.
59. In supporting the construction of Black Canadian identity bounded by a particular understanding of the nation-state, law takes on a pivotal role in shaping the disciplinary boundaries of Canadian labour studies. Liberal law imposes politico-legal constraints on migrant farm workers as non-citizens, which in turn legitimizes their exclusion from nation-state confined definitions of “Canadian,” or more specifically “Black Canadian”; consequently, legitimizing their exclusion from the study of Canadian labour. As mentioned above, Basok similarly criticizes earlier Marxian political economic studies on migrant labour for adopting a nation-state confined approach. See Basok, Past Present 30.
60. In a recent article, Satzewich acknowledges the validity of the transnational critique. See Satzewich & Lloyd Wong, “Immigration, Ethnicity, and Race: The Transformation of Transnationalism, Localism, and Identities” in Wallace Clement & Leah F. Vosko, eds. Changing Canada: Political Economy as Transformation (Montreal & Kingston: McGill- Queen's, 2003) 363.
61. I have uncovered three important exceptions: Andre, Changing Canada: Political Economy as Transformation 12 (drawing on the political economy of labour migration in the historical development of the Caribbean in an analysis of the legal framework governing migrant labour in Canada)
62. Knowles, Changing Canada: Political Economy as Transformation 16 (locating discussions on migrant farm workers in Ontario within the post- emancipation history of Jamaica)
63. Sherrie N. Larkin, Workin’ On The Contract: St Lucian Farmworkers In Ontario A Study of International Labour Migration (Ph.D Dissertation, McMaster University, 1998), (locating labour migration within the post-emancipation history of St Lucia in a discussion of St Lucian seasonal agricultural workers in Simcoe).
64. Farmers and government officials in the receiving and supplying nations have noted their concerns about worker flight—using the military acronym, absent without leave or “AWOL.” See Knowles, On The Contract: St Lucian Farmworkers In Ontario A Study of International Labour Migration, at 89–90 (including a statistical breakdown of the number of AWOL cases between 1986–1995. Farmers in the late 1980s saw a spike in the percentage of AWOL cases with 4.2% of all migrant workers in the SAWP in 1988 and 3.8% the following year. By 1995 the percentage had fallen to 1.4%). Moreover, we can draw on the second-hand accounts from activists and others of the actual tactics employed by migrant workers. For instance, J4MW member Chris Ramsaroop notes that workers have acknowledged purposely slowing the pace of work to disrupt the picking process— although he had never heard of workers feigning sickness or destroying crops. See also Basok, “He Came, He Saw, He Stayed. Guest Worker Programmes and the Issue of Non-Return” (2000) 38:2 Int. Migr. 215.
65. Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 (striking down an Ontario labour relations statute which withheld freedom of association rights from agricultural workers).
66. Kirk Makin, “Farm workers take issue with ‘useless’ law” Globe and Mail (15 March 2005) A9, noting the arguments put forth by UFCW lawyer Paul Cavalluzzo “ that a new law passed by the province, the Agricultural Employees Protection Act, is a cosmetic response to the top court's ruling and provides virtually no genuine rights or protections to the province's estimated 80,000 farm workers.”
67. See Affidavit of Judy Fudge in Dunmore v. Ontario, [1997] 37 O.R. 3d 287 (Ont. Ct. Gen. Div.).