Radical Resistance in the Penumbra of the Law: Legal Mobilization for Migrant Farmworkers under Neo-colonial Racial Capitalism

Authors

Vasanthi Venkatesh, Faculty of Law, University of Windsor

Publication Date

3-31-2025

Document Type

Article

English Abstract

Workers from the Global South with temporary immigration status provide a transitory, cheap, exploitable workforce that is responsive to economic vicissitudes and supremacist anti-migration discourse. They are created as an exceptional category of persons “essential” for their work but with no right to remain and claim citizenship-type entitlement to the Global North. The programs in agriculture are rooted in the legacies of indentureship, plantation, and other forms of racialized coerced labour. These programs continue to entrench a neocolonial racial capitalist global order where “unfree labour” is sanctified by contemporary liberal laws. Caught in the vice of a hegemonic, racial, state-governed project, migrant farmworkers are caught in what Best and Hartman call a “negative relation to law”—marked by “the necessity of legal remedy” but “the impossibility of redress.” Scholars within the Black radical tradition have configured fugitivity, or the practice of refusal, as a form of liberatory resistance that subverts the politics of recognition. The concept of fugitivity has been used in recent scholarship on illegalized crossings of securitized borders; but fugitive resistance is not meant to be seen in the registers of the established scripts of liberal resistance, such as legal claims. Using empirical evidence from migrant worker organizing in Canada, this paper suggests the possibility of radical legal mobilization that centres a praxis of refusal. This approach uses the law not for statist benevolence but as a counter-pedagogy for challenging neocolonial, racial capitalist sites and reframing the movement of marginalized, racialized persons. Such a legal mobilization enables and supports ‘fugitive’ actions of migrant workers––agentic choices by workers that reject, refuse, and escape the system that creates racialized unfreedoms. I show that radical legal mobilization can be conceptualized to involve three modalities of praxis (subversive legality, relationship-building, and radical knowledge production) that map to the three themes of performance, sociality, and futurity/imagination found in Fred Moten’s work.

Citation Information

Venkatesh, Vasanthi. "Radical Resistance in the Penumbra of the Law: Legal Mobilization for Migrant Farmworkers under Neo-colonial Racial Capitalism." Journal of Law and Social Policy 37. (2025): 22-48.
DOI: https://doi.org/10.60082/0829-3929.1489
https://digitalcommons.osgoode.yorku.ca/jlsp/vol37/iss1/3

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12 Stephen Best & Saidiya Hartman, "Fugitive Justice" (2005) 92:1 Representations 1 at 11 [emphasis added]. https://doi.org/10.1525/rep.2005.92.1.1

13 Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014); Joy James, "Afrarealism and the Black Matrix: Maroon Philosophy at Democracy's Border" (2013) 43:4 The Black Scholar 124; Best & Hartman, supra note 12; Akwugo Emejulu, Fugitive Feminism (London: Silver Press, 2022); Stefano Harney & Fred Moten, The Undercommons: Fugitive Planning and Black Studies (New York: Autonomedia, 2013).

14 This study defines legal mobilization as the use of law in an explicit, self-conscious manner, invoking institutional legal mechanisms (constitution, statutes, common law, courts and administrative agencies etc) on behalf of a collectivity as part of a "group struggle." Emilio Lehoucq & Whitney K Taylor, "Conceptualizing Legal Mobilization: How Should We Understand the Deployment of Legal Strategies?" (2020) 45:1 Law & Soc Inquiry 166 https://doi.org/10.1017/lsi.2019.59; Michael McCann, "Litigation and Legal Mobilization" in Gregory L Caldeira, Daniel Keleman & Keith E Whittington, eds, Oxford Handbook of Law and Politics (2008) 522 at 532-3. https://doi.org/10.1093/oxfordhb/9780199208425.003.0030

15 El-Enany, supra note 3.

16 Vasanthi Venkatesh, "Confronting Myths: Agricultural Citizenship and Temporary Foreign Worker Programs" (2019) 5:1-2 International Journal of Migration and Border Studies 82 [Venkatesh, "Confronting Myths"] https://doi.org/10.1504/IJMBS.2019.099720; Tanya Basok, "Canada's Temporary Migration Program: A Model Despite Flaws" (2007), online: migrationpolicy.org/article/canadas-temporary-migration-program-model-despite-flaws [https://perma.cc/FV5SGAUT].

17 Venkatesh, "Confronting Myths," supra note 16; Aziz Choudry et al, Fight Back: Work Place Justice for Immigrants (Black Point, N.S.: Fernwood, 2009) at 60-61.

18 Immigration, Refugees and Citizenship Canada, "Temporary Residents: Temporary Foreign Worker Program (TFWP) and International Mobility Program (IMP) Work Permit Holders" (September 2021), online: open.canada.ca/data/en/dataset/360024f2-17e9-4558-bfc1-3616485d65b9 [perma.cc/9MXF-QNMS].

19 JD, Justicia member (October 2015) via interview [communicated to author].

20 Kathleen J Fitzgerald & Diane M Rodgers, "Radical Social Movement Organizations: A Theoretical Model" (2000) 41:4 Sociological Quarterly 573. https://doi.org/10.1111/j.1533-8525.2000.tb00074.x

21 Darcy K Leach, "Prefigurative Politics" in The Wiley-Blackwell Encyclopedia of Social and Political Movements (John Wiley & Sons, Ltd, 2013) 1004. https://doi.org/10.1002/9780470674871.wbespm167

22 INCITE! Women of Color Against Violence, The Revolution Will Not Be Funded: Beyond the Non-Profit Industrial Complex (Durham, NC: Duke University Press, 2017). https://doi.org/10.1215/9780822373001

23 In social movement theory, collective action is differentiated along a scale of "contentious politics." See Charles Tilly & Sidney G Tarrow, Contentious Politics (Boulder, Colo: Paradigm Publishers, 2007) and Doug McAdam, Charles Tilly, & Sidney G Tarrow, Dynamics of Contention (New York: Cambridge University Press, 2001). In the broader sense, the defining characteristic of such collective action is that it is discontinuous, i.e., "not built into daily routines," has implications beyond immediate self-interest, i.e., "for interests of people outside the acting group," and disrupts systemic power imbalances. See Charles Tilly, "Collective Action" (2001) 3 Encyclopedia of European Social History 189.

24 In general, the "reform" and "radical change" debate has a long history of contrasting whether social movements should strive for incremental change in norms and structures (legal, social, political, or other), or whether they should reject and replace prevailing values and systems. See Rosa Luxemburg, "Reform or revolution (1900)" online: marxists.org/archive/luxemburg/1900/reform-revolution/ [perma.cc/U3TR-9KRQ]; Fitzgerald & Rodgers, supra note 20. Gramscian scholar William Carroll defines radical resistance as the struggle against domination that develops "counterpower" in the form of a "collective, agentic capacity" taking up the "standpoint of subalterns." At a discursive level, it contests, reverses, deconstructs dominant practices, norms, and identities and, at an analytical level, it engages in a process of "unmask[ing] surface appearances of seemingly isolated problems" within larger structures. William K Carroll, "Robust Radicalism" (2015) 47:4 Review of Radical Political Econs 663 at 663-664. See also Akbar, "Non-Reformist Reforms," supra note 2, and Stump, supra note 2, addressing the debate within law and social movements scholarship.

25 See, for example, Ontario (Attorney General) v. Fraser, 2011 SCC 20 [Fraser] O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 [Presteve]; Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4454; Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611 [Peart]; Hosein v. Ontario (Community Safety and Correctional Services), 2018 HRTO 298 [Hosein].

26 While lawyers, legal academics, and law students do the traditional lawyering work such as drafting legal documents, providing summary advice, and oral advocacy before courts and tribunals, the non-lawyers, including former SAWP workers, play a significant (often greater) role in outreach, legal education, engaging directly with the workers, translating the law, and providing the analysis for the laws and policies. (See Part III) As such, when the paper refers to legal mobilization and lawyering, it does not distinguish between the actions of legal professionals and non-lawyers.

27 Praxis is used here in the Gramscian and Frierian sense as a dialectical integration of theory (ideas and thought), action, and reflection towards transformative counterhegemony. Paulo Freire, Pedagogy of the oppressed (New York: Seabury Press, 1968).

28 The research is ethics approved. I have received informed consent for the use of the empirical evidence in this paper, which is, for the most part, publicly available. Since I am intimately involved with the organization, I relied on bracketing techniques in order to delineate my suppositions from the analysis of the data collected. See Lea Tufford & Peter Newman, "Bracketing in Qualitative Research" (2012) 11:1 Qualitative Social Work 80. https://doi.org/10.1177/1473325010368316

29 Frantz Fanon, Black Skin, White Masks (London: Pluto Press, 2008); Lewis R Gordon, "Through the Zone of Nonbeing A Reading of Black Skin, White Masks in Celebration of Fanon's Eightieth Birthday" (2005) 11:1 CLR James Journal 1; Ramon Grosfoguel, Laura Oso & Anastasia Christou, "'Racism,' Intersectionality and Migration Studies: Framing some Theoretical Reflections" in Laura Oso, Ramon Grosfoguel & Anastasia Christou, eds, Interrogating Intersectionalities, Gendering Mobilities, Racializing Transnationalism, 1st ed (London: Routledge, 2017). https://doi.org/10.4324/9781315226491-1

30 Best & Hartman, supra note 12; Damien Sojoyner, "Another Life Is Possible: Black Fugitivity and Enclosed Places" (2017) 32:4 Cultural Anthropology 514; Nick J Sciullo, "Boston Kings Fugitive Passing: Fred Moten, Saidiya Hartman, and Tina Campts, "Rhetoric of Resistance" (2019) 35 Rhizomes: Cultural Studies in Emerging Knowledge; Harney & Moten, supra note 13.

31 Sojourner, supra note 30 at 516.

32 James, supra note 13.

33 Ibid at 124-125. James also points to the "white saviour" narrative that underlies liberal rights-based claims which decentre agentic resistance when they state: "In fantasies of democracy, the enslaver rescues the savage from barbarity, and the abolitionist saves the savage from the enslaver. Afrarealism sees both forms of 'salvation' as captivity." This statement takes particular relevance within the discourse of "modern slavery" and anti-trafficking used as responses to migrant worker exploitation. See Irene Peano, "'New Slavery,' Modern Marronage and the Multiple Afterlives of Plantations in Contemporary Italy" in Colette Le Petitcorps, Marta Macedo & Irene Peano, eds, Global Plantations in the Modern World: Sovereignties, Ecologies, Afterlives, Cambridge Imperial and Post-Colonial Studies (Cham: Springer International Publishing, 2023) 285. https://doi.org/10.1007/978-3-031-08537-6_11

34 Harney & Moten, supra note 13; Fred Moten, Stolen Life (Durham, NC: Duke University Press, 2018) [Moten, Stolen Life]; George Shulman, "Fred Moten's Refusals and Consents: The Politics of Fugitivity" (2021) 49:2 Political Theory 272; Sciullo, supra note 30. https://doi.org/10.1177/0090591720937375

35 Emejulu, supra note 13.

36 Katherine McKittrick, Dear Science and Other Stories, Errantries (Durham, NC: Duke University Press, 2021) at 28. https://doi.org/10.1215/9781478012573

37 Ibid at 24-34.

38 Fanon, supra note 29 at 2.

39 Grosfoguel, Oso & Christou, supra note 29.

40 Karma R Chávez, "Sanctuary, Fugitivity, and Insurgent Models of Migrant Justice" (2020) 9:1 Departures in Critical Qualitative Research 89; Debarati Sanyal, "Calais's 'Jungle': Refugees, Biopolitics, and the Arts of Resistance" (2017) 139 Representations 1; Julia O'Connell Davidson, "Fugitivity and Marronage and the Study of Sex Work" (2023) Frontiers in Sociology, online: frontiersin.org/articles/10.3389/fsoc.2023.1151284 [perma.cc/SHE7-BF26]; Angelo Martins Junior & Julia O'Connell Davidson, "Tacking Towards Freedom? Bringing Journeys out of Slavery into Dialogue with Contemporary Migration" (2022) 48:7 Journal of Ethnic and Migration Studies 1479; Peano, supra note 33; Ma Vang, History on the Run: Secrecy, Fugitivity, and Hmong Refugee Epistemologies (Durham, NC: Duke University Press, 2021); Isabel Meier, "Acts of Disengagement in Border Struggles: Fugitive Practices of Refusal," Antipode (2023), online: onlinelibrary.wiley.com/doi/abs/10.1111/anti.12948 [https://perma.cc/P25N-T23H].

41 Sora Han, "Slavery as Contract: Betty's Case and the Question of Freedom" (2015) 27:3 Law and Literature 395 at 410; Moten, Stolen Life, supra note 34 at 246-266. Betty was freed as slave by the Massachusetts Supreme Court but she went back to Tennessee with her slave owners to her family. The decision ruled her relationship with her owners as one determined by a labour contract entered into by free will. https://doi.org/10.1080/1535685X.2015.1058621

42 Moten, Stolen Life, supra note 34 at 8.

43 Ibid at 6, 1-27, 242 [emphasis added]. On jurispathy and the violence of the law, see Robert M. Cover, "The Supreme Court, 1982 Term - Foreword: Nomos and Narrative" (1983) 97:4 Harv L Rev 4. Cover argues that claims by communities to autonomous interpretations of the law are met with violence of the law and state. He asserts: "Judges are people of violence. Because of the violence they command, judges characteristically do not create law, but kill it. Theirs is the jurispathic office. Confronting the luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to destroy the rest." Ibid, at 53.

44 Tina M Campt, Listening to Images (Durham, NC: Duke University Press, 2017) at 109. https://doi.org/10.1515/9780822373582

45 Ibid at 31-32.

46 Adrian A Smith, "The Bloody Life of Labour Power Commodification and the Fugitive Movement of the Disloyal We," TWAILR Reflection (30 August 2019), online: /twailr.com/the-bloody-life-of-labour-power-commodificationand-the-fugitive-movement-of-the-disloyal-we/ [perma.cc/3ALD-996M] [Smith, "The Bloody Life"], citing C.L.James, Grace C. Lee, and Pierre Chaulieu, Facing Reality (Bewick, 1974/1958) 5.

47 Fred Moten, Black and Blur (Durham, NC: Duke University Press, 2017) [Moten, Black and Blur]; Moten, Stolen Life, supra note 34; Fred Moten, The Universal Machine (Durham, NC: Duke University Press, 2018) [Moten, The Universal Machine]. https://doi.org/10.1215/9780822372226

48 El-Enany, supra note 3.

49 Kendra Strauss & Siobhán McGrath, "Temporary Migration, Precarious Employment and Unfree Labour Relations: Exploring the 'Continuum of Exploitation' in Canada's Temporary Foreign Worker Program" (2017) 78 Geoforum 199. https://doi.org/10.1016/j.geoforum.2016.01.008

50 Coulthard, supra note 11; Venkatesh, "Confronting Myths," supra note 16.

51 Ibid, at 85-86.

52 H Clare Pentland, Labour and Capital in Canada, 1650-1860 (Toronto: Lorimer, 1981) at 1-4; Venkatesh, "Confronting Myths," supra note 16 at 86-87; Ninette Kelley & M J Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1998) at 106, 195, 334-335; Lisa Lowe, The Intimacies of Four Continents (Durham, NC: Duke University Press, 2015); Radhika Mongia, Indian Migration and Empire: A Colonial Genealogy of the Modern State (Durham, NC: Duke University Press, 2018); El-Enany, supra note 3.

53 Nandita Rani Sharma, Home Economics: Nationalism and the Making of 'Migrant Workers' in Canada (Toronto: University of Toronto Press, 2006); Venkatesh, "Confronting Myths," supra note 16; Luin Goldring, Carolina Berinstein & Judith K Bernhard, "Institutionalizing Precarious Migratory Status in Canada" (2009) 13:3 Citizenship Studies 239. https://doi.org/10.1080/13621020902850643

54 Hennebry, Jenna, "Permanently Temporary? Agricultural Migrant Workers and Their Integration in Canada," Institute for Research on Public Policy (28 February 2012), online: irpp.org/research-studies/permanentlytemporary/ [perma.cc/R76W-FTUY].

55 Leigh Binford, Tomorrow We're All Going to the Harvest: Temporary Foreign Worker Programs and Neoliberal Political Economy (Austin: University of Texas Press, 2013); Venkatesh, "Confronting Myths," supra note 16.

56 Binford, supra note 55; JD, Justicia member, (July 2020) via interview [communicated to author]. More than 80 per cent of workers are "named" year after year. Presentation by Mexican Consulate representative for the Windsor Law Clinic Seminar (October 15, 2020).

57 Jane Ku et al, "'Canadian Experience' Discourse and Anti-Racialism in a 'Post-Racial' Society" (2019) 42:2 Ethnic and Racial Studies 291; Cindy Hahamovitch, "Creating Perfect Immigrants: Guestworkers of the World in Historical Perspective" (2003) 44:1 Lab History 69; Vic Satzewich, Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945 (London; New York: Routledge, 1991); Sharma, supra note 53; Smith, "Troubling 'Project Canada,'" supra note 7; Harsha Walia, "Transient Servitude: Migrant Labour in Canada and the Apartheid of Citizenship" (2010) 52:1 Race & Class 71; Evelyn Encalada Grez, "Contestations of the Heart: Mexican Migrant Women and Transnational Loving from Rural Ontario" (2019) 5:1-2 International Journal of Migration and Border Studies 118 [Encalada Grez, "Contestations of the Heart"].

58 Hahamovitch, "Creating Perfect Immigrants," supra note 57.

59 Venkatesh et al, supra note 6; King, Lulle & Melossi, supra note 6.

60 Employment Insurance Regulations, SOR/96-332, ss 9, 55(1); After years of advocacy by J4MW, IAVGO Community Legal Clinic, and injured workers, the Workplace Safety and Insurance Appeal Tribunal recently found that the deeming practice is contrary to the Workplace Safety and Insurance Act. Decision No. 1736/21, 2023 ONWSIAT 1422. However, the WSIB can also appeal the decision After years of advocacy by J4MW, IAVGO Community Legal Clinic, and injured workers, the Workplace Safety and Insurance Appeal Tribunal recently found that the deeming practice is contrary to the Workplace Safety and Insurance Act. Decision No. 1736/21, 2023 ONWSIAT 1422. However, the WSIB has limited the scope of this decision to only foreign agricultural workers under the SAWP program (excluding all the other foreign workers, including foreign agricultural workers under the 2-year Ag-Stream). See WSIB, "WSIB review leads to change in how injured foreign agricultural workers are treated," WSIB (May 15, 2024) www.wsib.ca/en/news-release/wsib-review-leads-change-how-injured-foreign-agriculturalworkers-are-treated [https://perma.cc/9NDE-P2NF] and WSIB, "Foreign Agricultural Worker Strategy," WSIB (2024) www.wsib.ca/en/foreign-agricultural-worker-strategy [https://perma.cc/4CNU-U392].

61 Jenna Hennebry, "Who Has Their Eye on the Ball? 'Jurisdictional Futbol' and Canada's Temporary Foreign Worker Program" (2010) 31:7 Policy Options 62; Leah F Vosko & Rebecca Casey, "Enforcing Employment Standards for Temporary Migrant Agricultural Workers in Ontario, Canada: Exposing Underexplored Layers of Vulnerability" (2019) 35:2 Intl J Comp Lab L & Ind Rel 227. https://doi.org/10.54648/IJCL2019011

62 Vasanthi Venkatesh, "No Status, No Race": Toussaint and the Erasure of Race in Immigration Judicial Making" (2023) [unpublished] [Venkatesh, "No Status, No Race"].

63 J4MW organiser and SAWP worker quoted in Likam Kyanzaire, "Former Migrant Worker Exposes Canada's Predatory Agriculture Industry," By Blacks (23 May 2023), online: /byblacks.com/news/item/3487-former-migrantworker-exposes-canada-s-predatory-agriculture-industry [perma.cc/3QG2-NTNH].

64 J4MW discussion on slavery discourse in the context of Jamaica's inquiry (September 2022) via meeting.

65 O'Connell Davidson, supra note 40; Judy Fudge, "Bad for Business: The Construction of Modern Slavery and the Reconfiguration of Sovereignty" (2022) 10:1 London Review of International Law 3; Kamala Kempadoo, "'Bound Coolies' and Other Indentured Workers in the Caribbean: Implications for Debates about Human Trafficking and Modern Slavery" (2017) 9 Anti-Trafficking Review 48; Peano, supra note 33. https://doi.org/10.14197/atr.20121794

66 JA, Justicia member (October 2015) via interview [communicated to author].

67 Participant Observation during Justicia's Harvesting Freedom campaign (October 2016).

68 HUMA Committee, Temporary Foreign Worker Program: Report of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities for the 42nd Parliament (2016).

69 Migrant Rights Network, "Migrants win path to Permanent Residence! We want Status for All!" (14 April 2021), online: migrantrights.ca/migrantswinprpath/ [perma.cc/T7RN-C2TG]. 70 J4MW, "J4MW Response to the 90,000 PR Pathway" (19 April 2021), online: docs.google.com/forms/d/e/1FAIpQLSdUbS4Mw86-tYitr7SZgo-3Fs1ewr8TIazhaLq8lZLqkDuvA/viewform [perma.cc/F6RB-CYHA].

71 Immigration, Refugees and Citizenship Canada, Access to Information Act Request A-2020-00174-2021-45611/LG (Ottawa: Government of Canada, 2021).

72 Adrian A Smith, "Legal Consciousness and Resistance in Caribbean Seasonal Agricultural Workers" (2005) 20:2 95 [Smith, "Legal Consciousness"]. https://doi.org/10.1353/jls.2006.0027

73 FW6 (SAWP worker), Submission to the Expert Advisory Panel on Occupational Health and Safety (July 2010), online: iavgo.org/wp-content/uploads/2013/11/IAVGOs-Submission-to-the-Expert-Advisory-Panel-on-Occupational-Health-and-Safety.rtf (on file with the author).

74 Rosenburg, supra note 2.

75 Hiroshi Motomura, "Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation" (1990) 100 Yale LJ 545 https://doi.org/10.2307/796662; Vasanthi Venkatesh, "Mobilizing under Illegality: The Arizona Immigrant Rights Movement's Engagement with the Law" (2016) 19 Harv Latino L Rev 165 [Venkatesh, "Mobilizing under Illegality"]; Peter H Schuck, "The Transformation of Immigration Law" (1984) 84:1 Colum L Rev 1. https://doi.org/10.2307/1122369

76 Irene Bloemraad & Doris Marie Provine, "Immigrants and Civil Rights in Cross-National Perspective: Lessons from North America" (2013) 1:1 Journal of Comparative Migration Studies 45. https://doi.org/10.5117/CMS2013.1.BLOE

77 Tshepo Madlingozi, "Post-Apartheid Social Movements and the Quest for the Elusive 'New' South Africa" (2007) 34:1 JL & Soc'y 77. https://doi.org/10.1111/j.1467-6478.2007.00383.x

78 Ryan Hartigan, "'This Is a Trial, Not a Performance!': Staging the Time of the Law" in Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey, eds, Law and Performance (Amherst: University of Massachusetts Press, 2018); Adrian A Smith, "Racialized in Justice: The Legal and Extra-Legal Struggles of Migrant Agricultural Workers in Canada" (2013) 31:2 Windsor YB Access Just 15 [Smith, "Racialized in Justice"]. https://doi.org/10.22329/wyaj.v31i2.4410

79 Fraser, supra note 25.

80 Tigchelaar Berry Farms v. Espinoza, 2013 ONSC 1506 [Espinoza].

81 Catherine Dauvergne, "How the Charter Has Failed Non-citizens in Canada: Reviewing Thirty Years of Supreme Court of Canada Jurisprudence" (2013) 58:3 McGill LJ 663. https://doi.org/10.7202/1018393ar

82 Rosenberg, supra note 2.

83 Logan v. Ontario (Solicitor General), 2022 HRTO 1004 [Logan].

84 Ibid at para 206.

85 Monrose v. Double Diamond Acres Limited, 2013 HRTO 1273 [Monrose].

86 OHIP v. Clarke & Williams, 2014 ONSC 2009 [Clarke & Williams].

87 Hillary Beaumont, "'They care about their plants and not us': for migrant farmworkers in Ontario, COVID-19 made a bad situation worse," The Narwhal (18 December 2021), online: thenarwhal.ca/covid-19-migrant-farmworkers/ [perma.cc/Z2YM-3J2Y].

88 Daniel Farbman, "Resistance Lawyering" (2019) 107:6 Cal L Rev 1877 at 1880.

89 Ibid at 1888.

90 Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2019-148, (2019) C Gaz II.

91 JD, Justicia member (July 2020) via interview [communicated to author].

92 Beaumont, supra note 87.

93 Gerald P Lopez, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (Boulder, Colo: Westview Press, 1992) at 275-329. Lopez describes lay layering as "lawyering" by those without legal training but who have learned the "law-in-action" through extensive contact and everyday lived experience.

94 JA, Justicia member (November 2015) via interview [communicated to author]; Participant observation during a Justicia meeting (June 2015); De Jesus v. Canada (AG) 2013 FCA 264 [De Jesus].

95 Harney & Moten, supra note 13 at 18 [emphasis added].

96 Moten, Stolen Life, supra note 34 at 55.

97 Ibid at 3-4.

98 EB, Justicia member (October 2021) via interview [communicated to author].

99 Harney & Moten, supra note 13 at 96 [emphasis added].

100 Ibid at 98.

101 Interview of Anonymized Worker (31 August 2022) Jamaican Farm Workers Speak Out, All Angles, Jamaica, online.

102 Satnam Virdee, "Racialized Capitalism: An Account of Its Contested Origins and Consolidation" (2019) 67:1 The Sociological Review 3; Jodi Melamed, "Racial Capitalism" (2015) 1:1 Critical Ethnic Studies 76; Cedric J Robinson, Black Marxism: The Making of the Black Radical Tradition, 2 edition ed (Chapel Hill, N.C: The University of North Carolina Press, 2000). https://doi.org/10.1177/0038026118820293

103 Richard Delgado & Jean Stefancic, "Critical Race Theory and Criminal Justice" (2007) 31:2/3 Humanity & Society 133 at 137; Ian Haney-López, White by Law: The Legal Construction of Race (New York: New York University Press, 1996); Robert S Chang & Neil Gotanda, "The Race Question in LatCrit Theory and Asian American Jurisprudence Afterword" (2006) 7:3 Nev LJ 1012. https://doi.org/10.1177/016059760703100201

104 Kerry Preibisch & Leigh Binford, "Interrogating Racialized Global Labour Supply: An Exploration of the Racial/National Replacement of Foreign Agricultural Workers in Canada" (2007) 44:1 Canadian Review of Sociology 5; DS, Justicia member (June 2016) via interview [communicated to author]. https://doi.org/10.1111/j.1755-618X.2007.tb01146.x

105 Giselle Valarezo & Christine Hughes, "Pushed to the Edge: Political Activism of Guatemalan Migrant Farmworkers" (2012) 5 Global Justice: Theory, Practice, Rhetoric 94. https://doi.org/10.21248/gjn.5.0.34

106 (TFWPs) structure flexible labour regimes that provide 'just-in-time' workers for select industries. Through these programs, workers are commodified into units of production with minimal rights and excessive restrictions on their comportment. In this paper I focus on the restrictions placed on migrant women's bodies, desires, and sexualities through the long- standing Seasonal Agricultural Workers Program (SAWP). Based on 16 years of community engaged research in rural Canada and Mexico, I demonstrate that from the point of recruitment in Mexico, to their encounters with Canadian employers, to the seasons of life and work between rural Canada and rural Mexico, migrant women are barred from fully expressing love, desire, and sexualities. I delve into contestations of the heart and argue that the love and desire that migrant women assert are among the many forms of resistance to their commodification within a coercive labour and immigration regime that favours production over reproductions of love and affection. I argue that social justice projects must account for the frontiers of the heart and the right to love beyond borders to be fully emancipatory. Evelyn Encalada Grez, "Vulnerabilities of Female Migrant Farm Workers from Latin America and the Caribbean in Canada," FOCAL Policy Brief (2011), online: s3.amazonaws.com/migrants_heroku_production/datas/201/Encalada_2011_E_original.pdf?1312495966 [perma.cc/45AG-P696]; Encalada Grez, "Contestations of the Heart," supra note 57.

107 Preibisch & Binford, supra note 104; Judy Fudge, "The Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers" (2011) Vancouver: Centre of Excellence for Research on Immigration and Diversity, Working Paper No 1958360, online papers.ssrn.com [perma.cc/VY8E-BA5W].

108 Adrian A Smith, "Temporary Labour Migration and the 'Ceremony of Innocence' of Postwar Labour Law: Confronting 'the South of the North'" (2018) 33:2 CJLS 261 [Smith, "Temporary Labour Migration"]. https://doi.org/10.1017/cls.2018.18

109 Smith, "Racialized in Justice," supra note 78.

110 Peart, supra note 25.

111 Hosein, supra note 25 at paras 249-251.

112 Participant observation (September 2015).

113 FW5, SAWP worker, Public expression by worker on experience of a court hearing in a Justicia meeting (June 2016).

114 DS, Justicia member (May 2021) via interview [communicated to author].

115 Austin Sarat & Stuart A Scheingold, eds, Cause Lawyering and the State in a Global Era, Oxford socio-legal studies (New York: Oxford University Press, 2001); Akbar, "Non-Reformist Reforms," supra note 2.

116 Harney & Moten, supra note 13 at 109.

117 Bridget Anderson, "New Directions in Migration Studies: Towards Methodological De-nationalism" (2019) 7:1 Comparative Migration Studies 36. https://doi.org/10.1186/s40878-019-0140-8

118 Grosfoguel, Oso & Christou, supra note 29; Encarnación Gutiérrez Rodríguez, "The Coloniality of Migration and the 'Refugee Crisis': On the Asylum-Migration Nexus, the Transatlantic White European Settler Colonialism-Migration and Racial Capitalism" (2018) 34:1 Refuge: Canada's Journal on Refugees 16; Achiume, supra note 4; El-Enany, supra note 3. https://doi.org/10.7202/1050851ar

119 Andreas Wimmer & Nina Glick Schiller, "Methodological Nationalism, the Social Sciences, and the Study of Migration: An Essay in Historical Epistemology" (2003) 37:3 The International Migration Review 576; Anderson, supra note 117; Lucy Mayblin, Migration studies and colonialism (Cambridge, UK; Polity Press, 2021). https://doi.org/10.1111/j.1747-7379.2003.tb00151.x

120 International Organization for Migration, World Migration 2008: Managing Labour Mobility in the Evolving Global Economy (Hammersmith Press, 2008) at 92.

121 Venkatesh, "Confronting Myths," supra note 16; H Friedmann, "Feeding the Empire: Pathologies of Globalized Agriculture" [2005] Socialist Register 124.

122 Agriculture and Agri-Food Canada, "Overview of the Canadian Agriculture and Agri-Food System," (May 2016), online: canada.ca/en/agriculture-agri-food/news/2016/05/overview-of-the-canadian-agriculture-and-agri-foodsystem.html [perma.cc/Q266-N2ZR].

123 Al Mussel, "The Economic Impact of the Seasonal Agricultural Worker Program in the Ontario Horticulture Sector," Agri-Food Economic Systems (2015); Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters in Canada (Montréal: McGill-Queen's University Press, 2014).

124 Venkatesh, "Confronting Myths," supra note 16. The "yeoman farmer" discourse idealizes all farmers as small subsistence landowners doing essential and useful service to the nation and society by producing food through hard family labour. For example, during the pandemic, J4MW was the one organization to call for shutdown of farms where outbreaks were detected, demanding that impacted workers be provided with full loss of wages and secure immigration status. The Premier of Ontario condemned J4MW's call for a shut-down and absolved the farmer, saying: "These poor farmers, they're not trying to take advantage of anyone … I'm not about to throw a hard-working farmer underneath the bus for nothing that he's done wrong." Shawn Jeffords, "Migrant farm workers 'hid' from COVID-19 testing in Windsor-Essex: Ford," The Toronto Star (2 July 2020), online: www.thestar.com/news/canada/2020/07/02/migrantfarm-workers-hid-from-covid-19-testing-in-windsor-essex-ford.html [perma.cc/5Q8G-PAN6]. The "poor" farmer to which the Premier referred was Nature Fresh, one of the largest independent greenhouse produce growers in Canada and the largest producer of peppers in North America.

125 Kathleen Harris, "Exploitation, abuse, health hazards rise for migrant workers during COVID-19, group says," CBC News (8 June 2020), online: cbc.ca/news/politics/migrant-workers-farm-deaths-report-1.5602596 [perma.cc/W2UR-7X5N]; Audrey Macklin, "(In)Essential Bordering: Canada, COVID, and Mobility" (2020) 2 Frontiers in Human Dynamics 16. https://doi.org/10.3389/fhumd.2020.609694

126 Tavia Grant & Kathryn Blaze Baum, "Ontario farms struggle to contain COVID-19 as migrant workers test positive," The Globe and Mail (3 June 2020), online: [perma.cc/97KL-2XH9].

127 Chris Ramsaroop, "Discipline and Resistance in Southwestern Ontario: Securitization of Migrant Workers and their Acts of Defiance" (2023) 23:3 Journal of Agrarian Change 600. https://doi.org/10.1111/joac.12541

128 Smith, "The Bunk House Rules," supra note 6.

129 Ibid. See Hosein, supra note 25.

130 Harris, supra note 1 at 368.

131 Ibid, at 369.

132 Smith, "Legal Consciousness," supra note 72; Joanne Coysh, "The Dominant Discourse of Human Rights Education: A Critique" (2014) 6:1 Journal of Human Rights Practice 89. https://doi.org/10.1093/jhuman/hut033

133 Salvador Plascencia, The People of Paper (San Francisco: McSweeney's Books, 2005); Kamal Sadiq, Paper Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries: How Illegal Immigrants Acquire Citizenship in Developing Countries (Oxford University Press, 2008).

134 Grosfoguel, Oso & Christou, supra note 29.

135 Moten, Stolen Life, supra note 34 at xii.

136 Presteve, supra note 25.

137 JD, Justicia member, (December 2022) via interview [communicated to author].

138 Ibid.

139 James C Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven: Yale University Press, 1990).

140 Fraser, supra note 25; Smith, "Racialized in Justice," supra note 78 at 17.

141 Leti Volpp, "Civility and the Undocumented Alien" in Austin Sarat, ed, Civility, Legality, and Justice in America (New York, N.Y: Cambridge University Press, 2014). https://doi.org/10.1017/CBO9781107479852.004

142 Marcus Morgan, "Performance and Power in Social Movements: Biko's Role as a Witness in the SASO/BPC Trial" (2018) 12:4 Cultural Sociology 456; Hartigan, supra note 78; Venkatesh, "Mobilizing under Illegality," supra note 75. https://doi.org/10.1177/1749975517752586

143 JA (Justicia member), interview with author, November 2015; Participant observation, October 2015.

144 Justicia and IAVGO, Factum of Interveners, in Fraser, supra note 25, at paras 11, 15, 25.

145 Ibid at paras 14-16, 18 [emphasis added].

146 Schuyler, supra note 25.

147 J4MW and IAVGO, Factum of Interveners, in Schuyler Ibid at paras 16, 22.

148 J4MW's actions have sometimes led courts to acknowledge hegemonic oppressions. See for example, Peart, supra note 23 at para 273; Schuyler, supra note 23 at paras 16, 22; Logan, supra note 83.

149 Robin D G Kelley, Race Rebels: Culture, Politics, and the Black Working Class (New York: Free Press) at 9.

150 Also see George I Lovell, Michael McCann & Kirstine Taylor, "Covering Legal Mobilization: A Bottom-Up Analysis of Wards Cove v. Atonio" (2016) 41:1 Law & Soc Inquiry 61. https://doi.org/10.1111/lsi.12143

151 Kathryn Abrams, "Performative Citizenship in the Civil Rights and Immigrant Rights Movements" in Ellen Katz & Sam Bagenstos, eds, A Nation of Widening Opportunity: the Civil Rights Act at 50 (Ann Arbor, MI: University ofMichigan Press, 2015); Kathleen M Coll, Remaking Citizenship: Latina Immigrants and New American Politics (Stanford, CA: Stanford University Press, 2010); Venkatesh, "Mobilizing under Illegality," supra note 75.

152 Ashar, supra note 2; Harris, supra note 1.

153 Fanon, supra note 29 at 2.

154 Lila Abu-Lughod, "The Romance of Resistance: Tracing Transformations of Power Through Bedouin Women" (1990) 17:1 American Ethnologist 41. Abu-Lughod cautions against the romanticizing of resistance, but it should nevertheless be used a diagnostic of the changing relations of power. See Kelley, supra note 48. https://doi.org/10.1525/ae.1990.17.1.02a00030