‘Jail for Thee but Not for Me’: Bill C-17, CERB and Workforce Discipline

Written by Alec Stromdahl, Ursel, Phillips, Fellows, Hopkinson, LLP

Jails and prisons are designed to break human beings, to convert the population into specimens in a zoo—obedient to our keepers, but dangerous to each other. — Angela Davis

On June 10, 2020 the Liberal government tabled Bill C-17 which, if passed, would amend the statutory scheme that regulates the $2,000.00 a month Canada Emergency Response Benefit  (“CERB”).^[1]

The Bill, among other changes, introduces steep fines and the risk of a 6 month jail sentence for anyone who knowingly provides misleading or inaccurate information while making a CERB application. Ostensibly the amendments are intended “to enhance the administration and enforcement of the Act.”^[2]

But Bill C-17 isn’t actually about enforcement or administrative efficiency — it’s about labour discipline.  The threat of jail is being introduced to scare workers back into low paying jobs during a pandemic.

CERB Abuse is Not Widespread

The reliance on jail time as a sanction for CERB abuse is perplexing at first glance. Bill C-17 creates a sledgehammer to smash what seems a mosquito-like problem. Statistics from the Government of Canada suggest that around 8.41 million people have applied for CERB.^[3] According to recent CBC reporting the Canada Revenue Agency  (the “CRA”) has processed almost 190,000 CERB repayments from people who applied for the benefit but we’re later deemed ineligible.  

In light of the sheer amount of unique applications these numbers do not suggest that CERB abuse is a widespread issue. But then why has the liberal government introduced the possibility of jail for knowingly making misleading CERB applications? 

One answer might be that the amendments are not directed at people who make honest mistakes but at people who intentionally abuse the system. This explanation is not plausible. If the government wanted to crack down on egregious CERB abuse they can rely on the fraud provisions that already exist under the Criminal Code.^[4]  In fact this is already happening.  

As reported by the CBC on June 12, 2020 the Toronto police arrested a person for (allegedly)  attempting to open bank accounts for the purpose of making false CERB applications. The police laid the following charges: 

• Fraud under $5,000.00;
• Altering or creating a document for the purpose of fraud;
• Possession of an identity document; and 
• Impersonation.

If the government already has tools to deter CERB fraud under the Criminal Codethen why is it creating new offences to perform the same purpose under Bill C-17?  The answer is that Bill C-17 is not about deterrence or enforcement at all.  It’s about coercing workers back into low wage jobs with the threat of jail or poverty — It’s about creating workforce obedience.

Criminal Sanctions for Refusing to Return to Work 

Bill C-17 doesn’t just introduce new penalties for CERB abuse, it also amends the qualifications for the benefit itself. Bill C-17 (if passed) will deem workers ineligible to claim CERB  if a worker declines a “reasonable job offer” or fails to return to work “when it is reasonable to do so” and the employer requests that the worker return.

Everyone who reads this provision will immediately ask themselves the same question. What exactly is a “reasonable job offer”? 

The answer is left intentionally vague because ambiguity is part of the threat.  Bill C-17 creates a number of new offences including knowingly making a misleading CERB application because of “non-disclosure of facts.”  

Offences

14.‍1 (1) Every person is guilty of an offence who

(a) in relation to an application for an income support payment made under section 5, makes a representation that they know to be false or misleading;

(b) being required under this Act to provide information, provides information or makes a representation that the person knows to be false or misleading;

(c) knowingly fails to declare to the Minister all or some of the person’s income for the period in respect of which the person applied for the payment;

(d) makes an application or declaration under this Act that the person knows is false or misleading because of the non-disclosure of facts;

(e) knowingly, in any manner, receives an income support payment that the person is not eligible to receive under this Act; or

(f) participates in, assents to or acquiesces in an act or omission mentioned in paragraphs (a) to (e).

In other words, if the Bill becomes law a worker risks 6 months in jail if they fail to disclose the existence of a “reasonable job offer” (a fact which would render them ineligible for the benefit) when applying for CERB.

The practical implication here is that if an employee expresses reluctance about returning to work, due to legitimate concerns about COVID-19, employers can lay out 3 options for the worker to consider:

1. Come back to work on the terms that I (the employer) dictate; 
2. Stay at home, apply for CERB, and risk steep fines and jail time. If the CRA calls I will tell them that I made you a “reasonable job offer”^[5];
3. Stay at home, don’t apply for CERB, and try to get by on no income. And by the way, unless you qualify for a statutory leave of absence don’t expect your job to be here when you return.  

This is the tool that Bill C-17 is designed to give employers. It leverages the criminal powers of the state to back up employer demands that employees return to work. If, as recent reporting suggests, the Liberal government extends CERB for an additional 2 months the pressure to impose workforce discipline will only increase.  

Jail for Thee but Not for Me 

Employers are well aware of the incentives created by Bill C-17. The Canadian Federation of Independent Business (“CFIB”), a corporate lobby group, made the following statement regarding Bill C-17 according to an article by the Globe and Mail:

Dan Kelly, president of the Canadian Federation of Independent Business, said the stronger language is welcome because many small-business owners are having a hard time persuading workers to return. While some workers are worried about returning to work for health-related reasons, many are happy to take the summer off if their income needs are taken care of through CERB,” he said

Bill C-17 is a one-sided gift to corporate Canada.  Remember that unlike workers, employers do not risk jail time for knowingly making a misleading application for the Canada Emergency Wage Subsidy (CEWS) which provides employers up to 75% of employee wages for up to 24 weeks.  

The threat of imprisonment is reserved for workers alone — jail for thee but not for me. 

Alec Stromdahl, “‘Jail for Thee but Not for Me’: Bill C-17, CERB and Workforce Discipline” Canadian Law of Work Forum (June 16 2020): https://lawofwork.ca/?p=12709

---

^[1]COVID-19 Emergency Response Act, SC 2020, c 5, <http://canlii.ca/t/549rb>

^[2]BILL C-17, An Act respecting additional COVID-19 measures, Summary, <https://www.parl.ca/DocumentViewer/en/43-1/bill/C-17/first-reading>

^[3]Government of Canada, Total CERB Benefits (delivered by Service Canada and Canada Revenue agency, combined) as of June 4th, 2020, <https://www.canada.ca/en/services/benefits/ei/claims-report.html>

^[4]See for example S.380(1) of the Criminal Code (Fraud under $5,000.00)

^[5]Bill C-17 makes it an offence to “participate” in the making of a misleading CERB application. Employers also risk prosecution if they remain silent.