THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Monday, March 28, 2022
The Standing Senate Committee on Human Rights met with videoconference this day at 5:04 p.m. [ET] for the consideration of Bill S-211, An Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tariff.
Senator Salma Ataullahjan (Chair) in the chair.
[English]
The Chair: I am Salma Ataullahjan from Toronto and chair of this committee.
Today is our fourth and final meeting with witnesses on Bill S-211, An Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tariff.
I would like to introduce our panel of witnesses. We have with us Peter Talibart, Lawyer with Seyfarth Shaw, who is appearing from the United Kingdom. I thank you, sir, for taking the time to appear. We also have Surya Deva, Member of the United Nations Working Group on Business and Human Rights. Professor Deva is also a member of the faculty of the Macquarie Law School in Sydney, Australia. He is appearing from Bangladesh, where I think it’s an ungodly hour of 3 or 4 a.m., sir. So we really, really appreciate that you are up at that hour and willing to appear as a witness.
Thank you both for making yourselves available at this very late hour, and I will invite Mr. Talibart to make his opening remarks. Then we will ask Professor Deva to give his. Afterwards, we will have questions from the senators.
Peter Talibart, Lawyer, Seyfarth Shaw (UK) LLP, as an individual: Good afternoon and good evening from a very dark London, senators. I am honoured to be able to address you on this subject, which is truly one of the most important issues of our life and times.
I am the co-head of the international law department of an Am Law 100 U.S. law firm, Seyfarth Shaw LLP. By profession, I am an international employment lawyer. I am also a global trustee of the international human rights charity STOP THE TRAFFIK, and I’ve been their pro bono legal advisor for about 17 years.
I advised it and the bishops of the Church of England in the House of Lords on the supply chains provisions of the U.K. Modern Slavery Act as it passed through Parliament, so I’ve been through this process before. I’m also a very proud Canadian.
I am speaking to you this evening — this afternoon — as an individual, and the views I shall express are entirely my own.
I have five things I would like to discuss with you, principally about the architecture of this bill, in no particular order as follows:
In my opinion, this is a good and well-balanced law. It advances the transparency model, going somewhat farther than the California, U.K. and Australian laws upon which it’s modelled. But it’s not so aggressive as to be unduly problematic for Canadian businesses to comply with as currently drafted or such that it would likely only have limited application to the very largest of Canadian companies. I can explain that comment in a few minutes.
In my opinion, this bill rather skilfully incorporates the approach of both common law and civil law systems to the problem of modern slavery with transparency around human rights due diligence process as part of the modern slavery statement requirements. That, in my submission, is a reasonable and proportionate way to deal with the concept of human rights due diligence that otherwise avoids many of the pitfalls of that approach as drafted law.
Modern slavery laws will be the first in human history to be informed by artificial intelligences, and if you let me, I will explain why that’s the case. If you graciously give me even more time — probably an hour or so at a later date — I can show you how this would be the case and give you an opportunity to interrogate the machine.
In its preamble, this bill refers to public international laws dating back to the 1930s that commit Canada to join the fight against modern slavery. The Canadian government set up a body to consider human trafficking issues in 1999, yet here we are with nothing really yet done. That’s absolutely shameful for our country.
In my opinion, public international law, as laudable and as important as all of it is, cannot by itself disrupt the global industry of modern slavery. So my submission is that the world needs more national laws that directly bind economic actors, like this bill.
The new design of these transparency-based laws, using the levers of consumer, investor, shareholder, communications, social media and regulatory pressure, can work alongside other legal frameworks to starve this global crime of its ability to earn the vast, untaxed profits that it does. Faced with the good law, such as this is — one that is consistent with one of the two prevailing international models being adopted by states, that actually borrows the best from both and, especially, that can be further modified if required through supplementary regulations — in those circumstances, any further delay in introducing the concept of supply chain transparency for human beings into the Canadian legal system is utterly inexcusable.
There is a growing humanitarian crisis out there, an invisible country of men, women and children working in unacceptable conditions, and we are supporting that every day we simply talk. Business is ready for a good law everywhere. So is Canada, and this is it.
There are certainly things to discuss in this bill. I have a few observations, and different interest groups will have particular sensitivities, but no legislation is ever going to keep every stakeholder happy on every aspect of it. Sooner or later, the Parliament of Canada is going to have to adopt a reasonable position on each of these issues, or Canada will never legislate on supply chain transparency for human beings.
As far as I can see, all of those outstanding issues appear to be points of detail. Equally, one can talk about legislation in other jurisdictions or the application of other legal models to Canada, but we must bear in mind that these laws sit within very different legal systems and traditions in their respective countries.
I believe the senators can make the most out of someone like myself through a discussion of the architecture of this bill and an understanding of the intent and design of these laws. There seems to be some confusion about that out there. I’m very pleased to render whatever assistance I can. Thank you very much.
The Chair: Thank you very much.
Professor Deva, the floor is yours.
Surya Deva, Member, United Nations Working Group on Business and Human Rights, as an individual: Madam Chair, thank you very much for inviting me to share views of the United Nations Working Group on Business and Human Rights about the proposed law to fight against forced labour and child labour in supply chains.
The working group has a mandate given by the Human Rights Council to promote the dissemination and the implementation of the United Nations Guiding Principles on Business and Human Rights. We work with the states, businesses, civil society organizations and other stakeholders to discharge this mandate. If requested, we can provide advice and recommendations regarding the development of domestic legislation and policies relating to business and human rights, and my intervention today is precisely in line with this mandate that we have.
The commentary to guiding principle 3 provides that the states “should consider a smart mix of measures – national and international, mandatory and voluntary – to foster business respect for human rights.”
Mandatory human rights due diligence laws are widely seen as an integral part of this smart mix.
In the last five years, five European states, namely, France, the Netherlands, Switzerland, Germany and Norway, have enacted some kind of a mandatory human rights due diligence law. Mandatory human rights due diligence is also part of the proposed business and human rights treaty being negotiated in the Human Rights Council.
More recently, the European Commission has released a draft directive on corporate sustainability due diligence, which recommends European Union member states ensure that companies above a certain size conduct human rights and environmental due diligence.
It is also worth recalling that in the 2018 report on the country visit to Canada, for which I had the pleasure of visiting Canada, the working group had encouraged the federal government to explore ways and means to incentivize human rights due diligence by companies, including through regulations on mandatory due diligence and disclosure.
Madam Chair, we should therefore see the Canadian bill in this wider context of the evolving regulatory landscape at the national, regional and international levels.
I would like to make four specific points.
First, similar to what the working group has stressed regarding the European Commission’s directive, the Canadian bill should be in line with the UN guiding principles. From this perspective, the narrow scope of the bill is problematic, as it does not cover all internationally recognized human rights, nor does it apply to all business enterprises.
Second, it seems that the bill merely imposes an annual reporting obligation on selected business enterprises. This is very different from the expectation under pillar II of the UN Guiding Principles to conduct regular human rights due diligence.
Third, it is critical that mandatory human rights due diligence laws provide for an effective remedy to those affected by corporate human rights abuses. The proposed bill falls short on this count too, as the proposed liability is limited to breaching the reporting obligation or making a false or misleading statement.
Fourth, despite the International Labour Organization estimates that more than 70% of the victims of modern slavery are women and girls, the bill does not integrate a gender perspective, nor does it consider other vulnerability considerations having a bearing on child labour or forced labour.
In short, the Canadian government should enact a comprehensive human rights due diligence law covering human rights, labour rights, environmental rights and, I will add, climate change. Such a law should also strengthen access to effective remedy.
I look forward to our dialogue today. Thank you very much for your attention, and I would welcome any questions and comments that I could respond to.
The Chair: Thank you very much to the witnesses.
As has been our previous practice, I would like to remind each senator that you have five minutes for your questions, and that includes the answer. If you have more than one question, we can always go back to second round. That, of course, depends on your first question. Sometimes you can get two of them in.
Senator Bernard: Thank you to both our witnesses, especially knowing that you’re joining us very late in your day or very early.
I will start with Professor Deva. In listening to your opening remarks, I think you’ve alluded to the fact that this bill doesn’t address any of the root causes of modern slavery. Could you specifically comment on that.
You’ve also identified a number of limitations you see with this bill. Do you have any specific recommendations that you would like to make to address those limitations that you have outlined? Thank you.
Mr. Deva: Thank you very much, senator. Thank you for the question. I think the major difficulty of this proposed bill is that it is modelled on the Australian and the U.K. modern slavery legislation, and there is significant evidence that these legislations have failed to address this gross situation of modern slavery. There is plenty of evidence and research indicating that.
So why should any country at this point of time in 2022 follow a very defective model of regulation when far superior models of regulation are emerging out of Europe in terms of comprehensive human rights due diligence?
Because when companies have to do any due diligence to find child labour or forced labour in supply chains, it is like asking them to only focus on modern slavery and ignore other elements. For example, if they find sexual harassment in the supply chain, the bill says don’t worry about it. If you see environmental pollution, don’t worry about it. I’m speaking at this hearing from Dhaka where, coincidentally, in 2013, the Rana Plaza disaster took place, where the occupational health and safety issues were very seriously breached and more than 1,000 workers lost their lives. This bill will not cover those kinds of situations. That it is why it is critical that a holistic approach is adopted.
Human rights are interdependent. We cannot really pick one element of those labour rights and human rights when those interconnections are very much clear.
My recommendation will strongly be that, at this point in time, it will not be very helpful for Canadian businesses to merely focus on these narrow elements of modern slavery.
On the other hand, if the Canadian Parliament wishes to focus narrowly, then it has to at least apply this law to all Canadian businesses, like the Dutch legislation. Even if you are focusing narrowly on modern slavery situations, then you cannot really create this hierarchy that it will only apply to certain big businesses who are employing certain numbers of employees or having certain number of millions of dollars of turnover. Thank you.
Senator Bernard: Thank you. Let me see if I can get this question in for Mr. Talibart.
Bill S-211 includes public reporting obligations for government institutions that produce, purchase or distribute goods. Unlike for private entities, the bill does not include specific enforcement or investigation powers to ensure that such reports are complete and are not false or misleading. Do you think the transparency of government institution reports will be a sufficient tool, or are more specific enforcement or investigation powers needed?
Mr. Talibart: I think the government typically self-polices to a very high degree. Given the fact that the minister and the government departments have to make a report, I wouldn’t necessarily see a requirement for an independent assessment of what the government is doing in the same way that I would for private industry, but this is something that you could argue with conviction either way. It’s a political question, as much as anything else.
Senator Miville-Dechêne: Thank you both for your testimony. My question is for Mr. Talibart.
You heard Mr. Deva saying that the U.K. modern slavery law is very defective. I’d like you to answer that. Because you were involved in reviewing the U.K. law, I’d like you to point out what the differences are with our bill here in terms of penalties, coverage of enterprise and not saying untruthful things in reports. Basically, can you make this comparison?
Mr. Talibart: I think I can. Thank you, and thank you to my friend for his comments. No law in this area is going to be perfect. When we were struggling to get the U.K. government to accept that there should be a supply chains provision in the Modern Slavery Act, which was by no means a guaranteed thing, the practical view we took was that the objective was to get the notion of supply chain transparency for human beings into the legal system. As long as it’s not in the legal system, businesses and actors who are within the country don’t have to consider the problem, except to the extent to which they interact with foreign laws in this area.
The real victory for us was starting somewhere. As you all know, politics is the art of what’s possible, and if a law becomes too aggressive, then business starts to push back. One of the advantages of the transparency model is that it seeks to work with businesses and make businesses actors in the fight against modern slavery rather than treating them as criminals. There are two principal models evolving in the world that I would probably call the common law model and the European model. You could argue that either model has its advantages or its disadvantages.
I was looking at this a little earlier on today, and just did a little bit of math. I think it’s understood that the French loi de vigilance will hit about 263 companies [Technical difficulties] — estimates that the Modern Slavery Act will impact about 18,000 companies.
Now the Canadian economy — and this is probably a really rough way to figure this — is about 70% of that of the French. So the French economy is 261 trillion; if we drafted a similar law to the loi de vigilance, using the same mathematics and proportion of the economy, we would hit 184 companies in Canada. So I don’t think that the loi de vigilance is a superior model. I think the legislators are so afraid of it because it’s so draconian that they have restricted the scope of it only to the largest of companies.
Let’s think about what that law does in plain language. It’s not a due diligence law. It makes directors liable directly for risks outside their borders that they cannot adequately control and gives them a defence that they asked all reasonable questions before the company got embroiled in a human rights event in their supply chain. That is a very high risk for business. Canadian multinationals do a lot of good in the field. If you think about the way that labour rights have developed in a lot of the emerging world, notions like vacation, maternity and all sorts of other benefits have actually come into being via the impact of the multinationals on the labour force, not from the countries themselves. So we don’t want to pass a law that’s so aggressive that it causes Canadian business to withdraw from the field.
We have quite an aggressive law with this bill. It has financial penalties that none of the other common law models have. It has mandatory due diligence as part of the requirements in the modern slavery statement. It has penalties for the provision of false information. In fact, there’s a private member’s bill in the U.K. to try to put some of the teeth in the U.K. Modern Slavery Act that we see in the draft of Bill S-211. So actually, this law goes farther than the U.K. law, the Australian law or the Californian law, but it still strikes a reasonable balance that I think business is capable of absorbing, and it also gives us the opportunity to get the concept of supply chain transparency for human beings into the legal system.
Legal systems are amazing engines for change. We just need to get it into the system. Then the various legal systems of Canada can start to work on the problems and improve the law.
Senator Miville-Dechêne: Thank you very much, Mr. Talibart.
The Chair: Thank you. I have a housekeeping note. In the Senate of Canada, it’s still mandatory for us to wear a mask, so if anyone in the room is not wearing a mask, please wear a mask, thank you. I appreciate that.
Senator Boyer: My question is for Mr. Talibart, and I’m expanding a little bit on what Senator Bernard had asked you. Your personal profile on Seyfarth Shaw’s website indicates the extent of support, resources and outreach that’s required to effectively address violations of international employment law. It highlights important discrepancies in the ability to access resources for marginalized people within a society.
Bill S-211 proposes a reporting scheme that relies on detailed reports produced by employers, business owners and government institutions, but the bill does not mention any additional resources to be provided or promoted within at-risk work environments. I’m really curious about your thoughts around the effectiveness of Bill S-211 in providing protection to the victims of trafficking if it excludes the voices and observations of these workers in the reporting scheme.
Mr. Talibart: I don’t think Bill S-211 or the other Commonwealth laws are victim-centric laws. Let’s be very clear about the purpose. Modern slavery is a vast, industrial-sized crime that profits to a significant extent from the ability to take the profits of illicit activities and effectively launder the money.
The purpose of these laws is to align businesses against the crime, because, otherwise, they may inadvertently be assisting it. So I’m not sure how victims’ rights, which are very important, necessarily come into a law of this nature, except, I suppose, to the extent that there is some information from victims provided to the companies in the preparations of the report. But the idea very much is to align business against this terrible crime.
If you want to talk about assistance for victims or rescue, then there are probably other better and more effective ways to try to build that protection rather than trying to stick those provisions into a bill like this, if that’s what you were suggesting.
Senator Boyer: What you’re saying is that it is a systemic issue or a systemic response, correct? Is that generally what I’m hearing? And the victim is only accounted for within the response of the government as in their reports, correct?
Mr. Talibart: No, not necessarily. There is scope for Canada to pass supplementary legislation related to victims. There is scope to perhaps provide that some of the penalty money be redirected toward victims’ aid. But I just don’t think a subject like assistance for victims of modern slavery belongs in an act that’s oriented toward prevention and making sure that business takes prudent steps to avoid being involved in it in the first place.
Senator Boyer: Okay, thank you.
The Chair: I have a couple of questions. Professor Deva, you talk about this bill is not aligned with the UN perspective. What do you think we need to add to have it aligned with the UN perspective?
Mr. Deva: Thank you, senator. To answer this question, let me also respond to my fellow witness, Mr. Talibart’s certain observations. With due respect, I will disagree with some of his conclusions, recommendations and findings. They are not in line with the regulated landscape and how it is emerging in Europe and internationally and the softer standards that are there, whether these are the UN Guiding Principles on Business and Human Rights or the OECD Guidelines on Multinational Enterprises. Canada is an OECD country. We must be mindful of where the landscape is going. I will make three or four points.
First of all, this legislation is not draconian; it’s not aggressive. The French legislation is not even draconian in my view because certain penalties were removed before the French legislation was adopted. It is perhaps inaccurate to suggest that this Canadian Bill S-211 is very aggressive or the French legislation is very draconian. That’s not true in my view.
Second, it may not be accurate to suggest that the two models are emerging: one is the common law model in Australia or England and the second is the civil law model in Europe. That is perhaps an inaccurate characterization, because what is happening here is that these are the early stages of human rights due diligence legislation. The legislation of reporting, whether this was in California or in the U.K. — and that was copied in Australia and Australian law is up for review, because, again, this is proving to be unsatisfactory in Australia. So that is not working. There is tremendous evidence. That is where UN guiding principles, the OECD guidelines and the ILO declaration, which is directly relevant to forced labour and child labour, all of these international softer standards, which are directly applicable to the Canadian government as well as businesses, they expect human rights due diligence, which is a four-step process, senator. Reporting is only the fourth step. Businesses are expected to do all four steps, not merely the fourth one, which this law is talking about in terms of reporting obligation.
I would also like to mention here that the victims are central to this issue. If you look at pillar II of the UN Guiding Principles, remediation is a key component of it, so we cannot ignore remediation. If the European Commission’s directive comes into force, it will also apply extraterritorially. The Canadian businesses with a significant footprint in the European Union will still be bound to follow the European Commission’s directive.
This legislation is not really going to help Canadian businesses in my view. I would strongly encourage the senators to look at the competing models and where the softer standards as well as the hard standards are moving.
In 2022, you should be looking ahead to what is needed. So this is a good starting point, but in my humble opinion, this is not really an effective legislation, and it is not going to work very effectively in addressing those particular challenges or even providing victims effective remedy. Thank you.
The Chair: Professor Deva, you said there is better legislation emerging from Europe. Could you tell us about one specific one that we should be looking at? Then, Mr. Talibart, you can respond too. You had your hand up so I’ll give you the floor.
Mr. Deva: Thank you, senator. Yes, there are five pieces of legislation. The French was the earliest one. You should look at the German legislation or the legislation coming out of Norway. German legislation, in particular, covers all international human rights because the obligation of the Canadian government is not merely to fight modern slavery. The Canadian government has treaty obligations to protect and promote all international human rights, including issues of environment and climate change. So that will be a missed opportunity if this law is going to focus very narrowly on child labour and modern slavery.
I would strongly encourage the senators to look at the legislation that is there. They are wider in scope in terms of the human rights they cover. At least if the narrow scope is to be adopted, only focusing on modern slavery, then look at the Dutch legislation, which covers all businesses, not merely certain types of businesses.
I should mention as a footnote that the government of the Netherlands recently proposed that they are going to adopt a more comprehensive human rights legislation, rather than merely focusing on modern slavery pieces.
The winds are definitely indicating that the modern slavery reporting only legislation is out of date and not working. Thank you.
Mr. Talibart: Thank you. I don’t want to disagree with anybody. As I said at the outset, either model can be criticized. I just beg to differ with my friend.
It would be wonderful if Canada could pass a law that covered every single human right, that covered every single aspect of environmental, social responsibility, given the climate crisis that we’re in, but that would take decades. Every day that Canadian businesses don’t have a very clear signal that they need to withdraw from what is the fastest-growing organized crime in the world, the traffickers are winning.
Again, you can take a view as to whether one favours one model or another. The only real example we have of the corporate due diligence approach that has been around for any length of time is the French. In Europe, it is still a draft directive. It may pass; it may not. We don’t know.
There are winds of change, but because Canada passes an initial law on this subject that starts the education process for Canadian businesses around modern slavery, it doesn’t tie Canada’s hands in the future if it turns out that any of the winds of change suggested by my colleague prove to be popular and become well-established.
I know my view is a little heretical. I don’t think people know what to draft. I’m a big believer in public international law, but we have to admit as lawyers that the growth of modern slavery represents a catastrophic failure of the international legal system. We’ve had a lot of these public international laws since 1930. Some of them are quoted in the preamble of the bill.
Those of us who started thinking about how to attack this issue from a different perspective were focused very much on taking the money out of it. The idea of putting a barrier, a disrupter, in between legitimate business and modern slavery was really designed to attack the economics of the crime.
My colleague is perfectly correct to point out OECD guidelines, to point out the guiding principles of the United Nations. Those laws aren’t going to go away simply because Canada passes a modern slavery law. They’re still going to apply to those organizations that either subscribe to voluntary controls or are hit by mandatory controls. I just don’t see the point of repeating them again in a Canadian law that might take years to pass.
You’ve all made tremendous progress. You can argue as to whether the European approach or the common law approach is the better one. The single fact is that Canada has taken a recognized international model that’s now been copied three times and has drafted a stronger version of that, and that’s not a bad place to start. If, in the fullness of time, Canada decides to revamp the act, it can do that.
My view is that we need five years of gathering information from corporates in preparation of these modern slavery statements before we can start drafting mandatory laws, because if anybody knew what would work, we wouldn’t have 48 million people working in slavery conditions on planet Earth in 2022, despite all this lofty law we have wafting around the planet.
Please don’t be distracted by the fact that Canada could do multiple times more. There will always be a situation where you can do more, but you must not let that get in the way of progress. This bill moves the needle.
[Translation]
Senator Audette: My comment and my question are for you, Mr. Talibart. Thank you very much for your presentation.
As I understand it, it would take several years if this bill also contained the full human rights component that’s been presented by other groups and our witness who is with you on this panel. Let’s look at it from the perspective of a victim, a person in a country that is experiencing modern slavery. What tools, remedies or systems are in place to tell the multinationals or corporations, “my rights have been violated”? If you have any examples, I’d love to hear or see them, and for you to send us the links.
Why not move toward a bill that will also include that? When we speak of decades, several years, please reassure me, because if we don’t do it now, we’ll be talking about human rights 20 years from now. So I tell myself that we need to think from the victim’s point of view, but also from the perspective of striking a balance with the economy in Canada. Do you have any examples to recommend or that you would like me to read?
[English]
Mr. Talibart: No, I don’t think I can give you a good example. Again, the common law models tend to focus more on commercial activities. What I did notice, which was quite interesting in Bill S-211, is the discussion about mitigation remediation. It’s my anticipation that in preparation of these reports, victims’ stories are going to come to light, and they are going to get aired with corporates who are presenting these reports to government.
Just so we understand the model, these reports are supposed to be iterative, so you never want a situation where a company is just publishing the same report every year. The report has to focus on what the organization has learned.
I don’t for one moment dismiss the heartbreaking conditions of victims in the vast crime of modern slavery. When you look at the activists in the arena, some focus on rescue. I’m more in the camp of people who focus on prevention. I would like to see more effort go into preventing these situations from happening in the first place. This is a personal view and not everybody will agree with it, but I think we need clear, preventive measures, such as a bill of this nature. Perhaps we deal with victims in a different way, but one that can also modify corporate behaviour.
Has that sufficiently answered your question?
The Chair: Thank you. Professor Deva, would you like to also address the question too?
Mr. Deva: Yes. I agree with Mr. Talibart on the question of prevention. Prevention is vital, but I would suggest that this bill will not prevent modern slavery. I can assure you of that based on my experience of more than 20 years working in business and human rights in different capacities all over the world. I can assure you, senators, that this bill will fail to prevent modern slavery for the precise reason that it does not provide for the tools needed to prevent it. The internationally recognized tool to prevent adverse impacts on human rights, including modern slavery in this case, is continuous practice of meaningful human rights due diligence.
Businesses need to consult their stakeholders. There is a four-step process. First is the identification. Second is the integration of your policies and all this. Then you need to track the responses. I can share more in writing later on. Time does not allow me to go into detail.
This bill is only focusing on the fourth and final step of human rights due diligence reporting. It escapes the crucial first three steps of due diligence, and that is why it will fail to prevent.
Senator, say there are some modern slavery victims in Bangladesh, where I’m giving this testimony, how is this bill going to help them? How will these victims know that they have some access to remedy? They have no access to remedy under this legislation, because there are penalties, and possibly it is [Technical difficulties] but that is triggered by the reporting obligations. That is triggered if the reporting is misleading or false.
This is definitely an improvement over the U.K. and Australian models, but it definitely does not provide any remedies to the victims, and that is where legislation, like the German legislation or the French legislation or even the Norwegian legislation, which provides for the right to information, is crucial. I would suggest strongly that the senators look at those models. I would be happy to provide more information in writing later on to inform this discussion.
Thank you very much.
[Translation]
Senator Gerba: Many thanks to our witnesses, who are here with us at rather late hours where they are. My question is for Mr. Deva. You say that Bill S-211 doesn’t go very far. In some countries, the law is considered to be strict, and in others it appears to be rather relaxed. Given that some businesses may have branches in several countries at once, should we decide to strengthen the legislation, how do we know that businesses won’t leave a country where the law is more stringent and move to where the law seems much more favourable and less stringent?
[English]
Mr. Deva: I will mention two quick points because of the brief time that is left. First, we need to create a global-level playing field, and that is where the negotiation of an international treaty on business and human rights that has provisions on due diligence is going to be a game changer. I very much hope that after the European Commission’s directive is adopted, the European Union will also actively participate in this particular process to create a global-level playing field. We need to create a global-level playing field, and domestic legislation alone will not be sufficient.
At the same time, it is crucial that we try to target all the supply chains of Canadian businesses. So even if those businesses are operating anywhere else in the world, they have to be captured by such legislation coming out of Europe. It has to have a very extensive, extraterritorial effect, in my view, and, of course, it has to also capture non-Canadian businesses which have footprints within Canada. It works both ways: Canadian businesses with their supply chains outside of Canada and non-Canadian businesses who are providing products and services inside of Canada.
I hope this law can take concrete steps moving in this particular direction, and it can do that if there are provisions about human rights due diligence, in my view, not merely reporting obligations.
Thank you.
Senator Bernard: This question is for both witnesses. We haven’t heard much about gender and the absence of gender and a gender-based analysis in this bill, and I’m wondering if you could each speak to that absence and whether or not you think that we should be specifically bringing gender awareness into this bill as well.
Mr. Talibart: Look, I guess my view is this bill is a first step. Along with supply chain transparency in Canada, it would be an important first step. It gets the concept into the legal system.
For the moment, I would treat all categories of people working in inhumane conditions, whether they be men, women or children, the same. I don’t think we know enough yet about the differences to start drafting specific differentiators in a law about particular gender. There’s lots of information about how different groups are treated, but I think we also have to be a little bit wary about drafting before we know what we’re talking about.
If the totality of laws in this area were as successful as we would like to believe, maybe we could be more confident. If there was a universal law on human rights that applied to every country, that would be amazing, but I don’t know that’s something the Parliament of Canada can achieve. So no, I don’t think I would make those distinctions at this stage.
The Chair: Thank you.
Mr. Deva, do you have a comment?
Mr. Deva: Thank you very much, senator, for that very critical question, in my view. In my statement I briefly mentioned about the gender aspect missing from this Bill S-211, and I would strongly encourage the Parliament of Canada to integrate a gender perspective that would be in line with the very well-established policy of the Canadian government of GBA+ analysis. This bill does not take into account that perspective, despite significant evidence provided by the ILO and other researchers that more than 70% of the victims of modern slavery are women and girls.
This is a fact. We don’t need to discuss anything more. This is a reality. How are we going to address this particular dimension when we are ignoring this very simple fact? Many of these victims could be even inside Canada. We should not assume that the modern slavery that we are trying to address here is only in the global south or in the supply chains. Because modern slavery is a very pervasive concept. It is hidden, and I think those situations of exploitation could be dealt with better, in my view, if we adopt a gender-sensitive approach. I would be happy to send to senators a report of 2019 in which it was already articulated how a gender perspective could be integrated in these pieces of legislation. I will share that report later on, because the time does not allow me to elaborate on that. It has concrete, particular examples of how this gender aspect could be integrated into the business and human rights landscape of regulation.
Thank you.
Senator Miville-Dechêne: I’ll be brief. This is for Mr. Deva. Obviously, I’ve looked at the same figure as you do. The 70% figure includes human trafficking of a sexual nature. If we only talk about forced labour and child labour, we are absolutely not sure that there are more women than men. I’ve looked at all the figures of ILO. You are including human trafficking for sexual exploitation, which is not part of my bill. I’m talking about forced labour and child labour in companies. We are talking about the supply chain.
I just want to make that clear, because figures are very strong, and this is not the figure that relates to my bill.
Mr. Deva: Senator, thank you for this comment and observation. I will not separate human trafficking from forced labour in supply chains, because if you look at the reality in the business sector, many of these victims who are trafficked are working in those factories. We cannot really artificially separate human trafficking. Human trafficking could be for sexual exploitation. I can also say that businesses are involved in human trafficking for sexual exploitation. Sex tourism is taking place. I can provide plenty of evidence of that, so it would not be accurate, in my view, to suggest that there is no gender dimension. There is an intersectional dimension, which is pervasive. Migrant status, poverty, race, ethnicity and language all have a bearing on who is more likely to be prone to modern slavery, so it is appropriate, in my view, to consider an intersectional and gender perspective in enacting any legislation at this particular point of time. Thank you.
Senator Miville-Dechêne: I’m certainly for gender analysis, but in that case, I do not agree with you about who we’re talking about. This is not about sexual exploitation. It may be at the margin, but this is different, and the ILO figures make that difference.
The Chair: Thank you, Senator Miville-Dechêne. We have come to the end of our time with this panel, but as the chair, I can extend this by about 10 minutes. We do have the next panel waiting, but so much interest has been generated. We have two other senators with questions, and I myself have two questions, so I will turn to Senator Boyer to be followed by Senator Gerba. Senators, if you can keep your questions brief, and witnesses, if you can keep your answers brief, it would be much appreciated.
Senator Boyer: My question has been asked by Senator Bernard, and it deals with the gender-based approach.
I would like to make the comment that in Canada, we deal with a huge population of Indigenous people who are in a vulnerable position and who would be affected by this as well. I want to mention that a culturally relevant gender-based analysis would be important when considering this bill. That was my comment. Thank you.
Mr. Talibart: I agree with all of this. This bill isn’t going to fix everything. I’m not sure what could or how long it would take while we do nothing, pending either waiting for the European Union or trying to fix every single human rights abuse we can.
What this bill does give us is information. Companies are going to start tackling this. They are going to start thinking about the issue. They’re going to discover how modern slavery intersects with their businesses. They know that better than government does.
It’s likely that the information that’s thrown out by harvesting the intelligence that the Parliament of Canada gets from these modern slavery statements will allow an informed response in relation to things like gender or cultural impacts or impacts on particular groups.
I’m just not sure we have the data yet to safely legislate. We have to start somewhere, and this is a good place.
The Chair: Thank you.
[Translation]
Senator Gerba: Once again, I will go to Mr. Deva. Can you elaborate on the preventive measures that will strengthen this bill? You mentioned preventive measures.
[English]
Mr. Deva: Thank you, senator. The most crucial preventive tool that is widely accepted globally, I would say, in both softer standards as well as harder standards, is the practice of regular human rights due diligence. That is the difficulty with this reporting obligation, which happens only once in a year.
Due diligence is a regular initiative. Businesses are expected to keep an eye on this regularly. Things may change. The pandemic created more exploitative situations in supply chains because of power inequality, and many people lost their jobs. Annual reporting is not going to fix that. What is needed is, I repeat, a human rights due diligence process, which is a four-step process.
Consultation with the stakeholders is crucial. How can a Canadian company find out that there are potential situations of modern slavery in supply chains that could be spread all over the world? That company would have to consult the trade unions, civil society organizations, human rights defenders, UN agencies, et cetera. Reporting cannot be done by sitting in offices in Toronto and just preparing a statement. That is not how it works. It is crucial that there be meaningful consultation with these stakeholders on the ground, because they will tell you that this is happening here. From that perspective, it is absolutely vital that this bill does not focus merely on the last step, which is the reporting.
The first step is identification. How do you identify? There are many tools available for that, and there is tremendous guidance provided by Organisation for Economic Co-operation and Development, or OECD, due diligence guidance. I’d be happy to share those resources with the senators so that you make an informed decision. Thank you very much.
The Chair: Thank you. I will ask the final two questions.
My first one is for you, Professor Deva. Previous witness Kevin Thomas, who is the CEO of SHARE, stated that he was involved in the Accord on Fire and Building Safety in Bangladesh after the Rana Plaza factory collapse. I was in Bangladesh a couple of months later. The Rana Plaza collapse was in April, and I visited the site in August. When I came back, I proposed that this very committee, the Standing Senate Committee on Human Rights, look at the rights of the garment workers, and we did.
Mr. Thomas states that there was improvement because of a legal remedy and binding arbitration, and this has recently been expanded internationally through negotiations with companies. Yet, you said earlier that you felt that not much has changed since Rana Plaza. Could you elaborate briefly for me, please?
Mr. Deva: Thank you, senator. When it comes to the impact of the accord, it definitely has had an impact on the ground, because it provides for remediation through binding arbitration, but it is limited. It does not cover all workers in all sectors.
We have to understand that we are talking about more than 60 million people working in Bangladesh in different sectors. The accord does not cover all those workers in all situations. We also have to be mindful of what we call generically informal economy workers. Many of these workers may not be part of the formal system. There has definitely been a positive impact, but we should not overstate the positive impact of the accord or anything else for that matter.
From that perspective, senator, it is worth reflecting on how this bill can provide remedies to the victims of modern slavery. How can they approach the judicial or non-judicial system in Canada, or somewhere else, if they are victims of human trafficking?
Let us say Company A in Canada makes a statement that it has taken ABC steps in terms of identifying child labour and forced labour in their supply chain. Then, there are certain victims identified by a civil society organization. Should they not be able to claim some remediation against the company that is based in Canada? I think the senators should look at that particular issue carefully in my view. Thank you.
The Chair: Mr. Talibart, could you please tell us about the use of supercomputers and artificial intelligence to track slavery movements across the border? You did give us a map, and I thank you for that.
To what extent could Canadian companies rely on this technology to eradicate forced labour and child labour from their supply chains?
Mr. Talibart: This is something that you should all see.
STOP THE TRAFFIK, working in conjunction with IBM and Watson, have developed an application for artificial intelligence to look at reported incidents of modern slavery and translate those into visuals. I think this could help a company visualize where it is, in fact, interacting with modern slavery in its supply chain.
The Chair: Mr. Talibart, excuse me. We seem to have lost translation.
We could probably follow up in writing, if the senators are okay with that. Yes, we will follow up in writing.
Mr. Talibart: Okay. May I make one final comment?
Please note that clause 23 of the bill gives you an opportunity to draft supplementary regulations, so if you wanted to, for example, expand upon the meaning of “due diligence,” you’ve got the framework to do it already within this bill. So the architecture you’re using gives you the ability to amend regulations as the international model for modern slavery law evolves.
The Chair: Mr. Talibart, because we lost interpretation and what you just said, we couldn’t use it. I will ask you, therefore, to make a written submission of that. Then it can be part of our testimony. I would really appreciate that.
Mr. Talibart: I will do that.
The Chair: Thank you so much.
We’ve come to the end of this panel, and I would like to thank both of you for your testimony. Your assistance with our study is appreciated. You can see that you generated much conversation, and many thoughts and questions, because you opened up so many avenues. I want to thank you both. I know it’s very late in England and even morning in Bangladesh, so thank you.
Honourable senators, I would like to introduce our final panel with our witness. We have with us Ms. Nicole Barrett, Director, International Justice and Human Rights Clinic, Peter A. Allard School of Law, University of British Columbia. I will invite the professor to make her presentation, and then we will proceed with questions from the senators.
Actually, since Ms. Barrett has students and they might be responding to some of the questions, I will take this opportunity to introduce them too. All student clinicians at the Peter A. Allard School of Law at the University of British Columbia, we have Lauryn Boag, Letty Condon and Adam Snyder. I thank you all for being here today.
Professor, the floor is yours.
Nicole Barrett, Director, International Justice and Human Rights Clinic, Peter A. Allard School of Law, University of British Columbia, as an individual: Thank you very much for the opportunity to speak today. Honourable chair, I’m speaking to you today from the unceded ancestral territory of the Musqueam people.
The International Justice and Human Rights Clinic works as the external research group to Canada’s All Party Parliamentary Group to End Modern Slavery and Human Trafficking. We’re very pleased to speak to you today on the importance of passing strong legislation to prevent human rights abuses in Canadian supply chains.
We welcome Bill S-211 as a first step to addressing forced labour and child labour, and we agree with Senator Miville-Dechêne that Canada is currently complicit in these unacceptable practices. We also agree, however, with others who have testified before this committee that, in its current form, Bill S-211 does not go far enough to be effective.
Bill S-211 is primarily a reporting law that requires entities to file annual reports that set out the steps taken to prevent or reduce the risk that forced or child labour is used in their supply chains. Entities can, however, satisfy their obligations under the bill by simply reporting that they have taken no action whatsoever to mitigate or prevent human rights abuses.
We think that mandatory human rights due diligence laws that go beyond basic reporting requirements are needed to effectively address human rights violations in Canadian supply chains. While we also support environmental due diligence requirements, I will not focus on those today, but I note that the UN Human Rights Committee has confirmed that environmental degradation and climate change are some of the most serious threats to the right to life, protected by the International Covenant on Civil and Political Rights, which is binding on Canada.
Supply chain due diligence laws are increasingly the norm in human-rights-supporting countries. France, Germany, the Netherlands, Norway and Switzerland have already passed due diligence laws. The European Parliament recently approved a directive requiring EU member states to implement mandatory human rights and environmental due diligence standards. The resulting laws and regulations will apply to many Canadian corporations that sell to Europe.
We thus have a real opportunity to bring Canadian legislation up to speed with the emerging international standard and support Canadian corporations in avoiding pitfalls and litigation resulting from failing to address human rights violations in their supply chains.
In light of this context, we have three main recommendations to strengthen Bill S-211. First and foremost, we urge Parliament to enact mandatory human rights due diligence legislation for Canadian companies. The four core steps of human rights due diligence include, first, assessing both the potential and the actual human rights impacts directly caused, or indirectly contributed to, by an entity’s business activities; second, taking action in light of these findings to mitigate current human rights impacts and prevent future impacts; third, assessing the effectiveness of such actions; and fourth, issuing reports on the entity’s human rights policies, practices and outcomes that are publicly available, both on the entity’s website and in a centralized, state-run registry.
Our second recommendation is that we recommend Parliament expand the scope of Bill S-211 in two ways. First, Bill S-211 should cover the provision of services as well as the production of goods. Bill S-211’s clause 9 currently captures only entities whose business activities concern goods.
We also suggest Parliament lower the threshold for which entities are covered by the bill. Currently, Bill S-211 applies only to large entities and some medium-sized entities. Several human rights treaty monitoring bodies have urged Canada to implement supply chain legislation that applies to all Canadian corporations.
Third, Parliament should increase the range of enforcement measures in Bill S-211. Fines alone are not enough as they can simply be absorbed into the cost of doing business. Canada should instead follow the lead of other countries and implement a combination of civil and criminal liability for violations. Most notably, in keeping with Canada’s obligation under the protocol of the Forced Labour Convention, this law should create a civil cause of action so that victims of human rights violations abroad are empowered to seek remedies in Canadian courts. As the evidentiary burden falls upon those bringing a complaint, the courts will not be inundated with new cases, and only the most meritorious claims are likely to succeed.
We have heard concerns about potential adverse effects of due diligence laws on the competitiveness of Canadian companies. Ethical entities can be aided and reinforced, however, by levelling the playing field. If all companies are required to undertake supply chain due diligence, the many corporations already voluntarily implementing due diligence processes will no longer be at an unfair disadvantage because they are spending time and resources while other entities are not.
Our amendments may also provide significant benefits to Canadian companies. Responsible business conduct abroad is associated with lower company risk and increased company value. Avoiding negative human rights impacts — and the associated consumer boycotts, negative press and litigation — can protect share value and shareholder confidence, which is important in today’s tumultuous world.
In conclusion, this is a fantastic opportunity for Canada to demonstrate its human rights leadership and create effective legislation to prevent human rights abuses in Canadian supply chains. Canada should join like-minded, human-rights-supporting countries and pass a broad, robust law that includes human rights due diligence requirements and has effective enforcement measures.
Thank you very much, and I look forward to your questions.
The Chair: Thank you, Madam Barrett.
Senator Bernard: Thank you, Ms. Barrett and your students for being with us this evening.
You’ve been very clear in the three recommendations that you’ve presented that you believe would strengthen this bill, and we’ve certainly heard witnesses argue against amendments to the bill, and we’ve heard witnesses argue for similar recommendations to yours.
Could you tell us what you believe would be some of the drawbacks to expanding the scope and also some of the benefits to expanding the scope? Thank you.
Ms. Barrett: I think the biggest benefit of expanding the scope would be that it would put the bill in line with international human rights obligations that Canada has signed on to. So I think as Mr. Surya Deva was alluding to, there are many human rights obligations that Canada has signed on to. Some of the most familiar are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, so there is a large body of human rights laws that Canada is obligated to uphold.
The human rights due diligence would feed into this overarching framework that Canada has already decided it wants to be a part of and to support. In fact, Canada was one of the founding countries in the whole human rights movement. So there’s a long history of Canadian support for human rights laws. I see this as part of that historical legacy.
From the negative point of view, I think it could take more time. It may be more difficult to garner consensus amongst the political parties to agree on measures that are broader. I think that is one of the challenges. We are legal researchers and lawyers, so we’re not in the difficult position of having to put together political consensus.
We do understand that it’s challenging, and I’ve seen the history of the bills in this regard, in Canada, and they haven’t passed to this point. There have been three prior attempts, and they have not been successful. So I do see that it’s politically challenging.
However, I think there is a real shift that has occurred in the past two years, especially because of the momentum coming from Europe, where we can see that countries are now understanding that this is a very significant problem and that real laws that actually address the issue need to be passed, not merely laws that look to gather information.
I’m not saying that information isn’t a great thing. It’s fantastic to have a lot of information. It can help inform policies. So I very much see this as a step in the right direction because now we don’t have much information. That is one of the reasons why we started initially to look into this supply chain question back in 2017, because the students were very concerned with reports that they were reading about Canadian companies operating overseas, human rights abuses, and they were hearing and seeing things filed in Canadian courts.
We looked to gather information about what was required for companies to give to the Canadian government so we could assess what is needed in this supply chain area, and we were very surprised to find out that very little information was required.
We initially wrote a report in 2017, after about eight months of research, called In the Dark, because we were in the dark. We didn’t know what we were dealing with. At that time, we wanted a bill similar to this that had mostly an information-gathering focus.
Since then, I think there has been a big shift in the movement of other countries and they are pushing forward quite quickly. There has also been rapid globalization in all of the issues that we see coming from that. We have increasing cases within the Canadian courts, such as the Nevsun case, which we all study very closely here in law schools in Canada now.
There has been a lot of forward movement on corporate due diligence, and we think that Canada should keep up with that forward momentum and be part of the solution.
Senator Miville-Dechêne: Thank you, Ms. Barrett, for your testimony, and thank you also for recognizing that politics is the art of the possible and that it’s difficult to find consensus.
I want to read the first sentence of your summary: “This bill provides a meaningful opportunity to prevent human rights abuses in Canadian supply chains . . . “
This seems to be quite a positive assessment of Bill S-211. However, you continue by saying that the due diligence bill could be better.
On that front, I would ask how you can possibly have a threshold that requires companies that are $15,000 in value to send reports on modern slavery. We know how difficult it is to look into the supply chain and do a good job finding a different level, especially at the first tier, in fields in very small shops. How do you think very, very small companies could do that in Canada? You seem to have a positive view of the bill. How pragmatic do you think your recommendation of lowering the threshold is?
Ms. Barrett: Thank you, Senator Miville-Dechêne.
I do have a positive view of the bill. I do think it’s a step in the right direction, and I do think there could be improvements to make it better. I wanted to incorporate both of those sentiments into my reply.
Initially, we were not against a threshold because we did recognize that it was difficult for smaller operators to cover the cost. Initially, I think we put together a model supply chain bill, and we had a threshold of $35 million that we placed that would get medium-sized — it was lower than the very large companies but would go further down. I don’t think that it’s impossible to have a threshold and only focus on the medium- and larger-sized companies. I do think it would be better the further down you can go.
The other comment I would make is that it’s probably unlikely that the small operators are going to have the very complex supply chains that are 100 different links down the chain. We know that some corporations do have over 100, especially the large oil and gas extractive companies. We tried to map Chevron’s subsidiaries, and it took about a year. It was hundreds of subsidiaries. It was very complex. I don’t think that type of very complex analysis will be impacting the smaller companies to the same extent as the large companies.
Another point I would make is that companies have to collect a lot of information already for their financial reporting. So we don’t see human rights due diligence as costing that much more. There will be some costs in addition, but there are several factors that will make those costs decrease over time. First, the mapping of the supply chains will take some time, effort and funding, but after you understand your supply chains, those costs will diminish. You have to be reporting annually anyway when you’re doing audits and financial accounting, so looking into the suppliers and the supply chain can be added on as another step in the annual review process. We don’t see it as an onerous burden in the way it is sometimes represented by companies.
We also think that when we have databases that are transparent — where all of the information goes and it’s easy to compare — companies themselves will be able to use those databases and find their suppliers. There will be more information for the companies, and the costs of their due diligence will go down.
I would be interested to hear Mr. Talibart’s discussion about artificial intelligence and how that is going to give us all the information we need. Maybe we don’t have to do anything at all anymore. The machines can take over. If there are programs being developed for supply chain tracking, I think that can be very helpful.
Because there is momentum and focus now, I think there will be diminishing costs.
Senator Miville-Dechêne: Thank you.
Senator Boyer: Professor Barrett, I thank you for sharing your suggestions on the amendments to this bill, and I really enjoyed the memorandum that you sent to us beforehand. It gave us an opportunity to have a really good look at them, so thank you.
Your academic profile states you are a member of the national Task Force on Trafficking of Women and Girls in Canada, and that’s where you directed major projects on human trafficking prevention. That would be for the Canadian government.
With that experience in mind, can you identify any potential gaps in the ability of Bill S-211 to protect women and girls from being trafficked, particularly as it relates to Indigenous women and girls?
Ms. Barrett: Thank you for the question. I should specify that the task force I was on was specifically on sex trafficking. It didn’t cover labour trafficking. That was about a two-year task force, and we looked very thoroughly into the question of trafficking of Indigenous women and girls in Canada and found that there was a heightened level of trafficking within Indigenous communities, so the impacts were more serious for Indigenous communities.
It’s interesting the way trafficking is often divided into sex trafficking and labour trafficking. I do see it as somewhat separate because this bill is focused mostly on international supply chains, and the trafficking of Indigenous Canadian women and girls happens within Canadian borders to a large extent. I mean, there are some cross-border situations. At the same time, it’s also true that many different groups will lump the two together and count sex trafficking and labour trafficking as one group. So when numbers are being used, you have to look very closely as to whether or not that division is being made.
With this bill focused on supply chains, I think there aren’t gaps to fill in terms of reaching the question of sex trafficking of Indigenous women and girls in Canada. I think it is a separate area.
I would say that with Indigenous communities generally around the world, there are many serious impacts on Indigenous communities. The trafficking and human rights abuses that are occurring do often impact Indigenous communities to a greater extent than other communities.
Senator Boyer: Thank you, Professor Barrett.
Senator Hartling: Thank you, Professor Barrett. I love your enthusiasm and your very interesting presentation. Welcome to the students. I can only imagine your classes must be very dynamic with lots of discussion and maybe not always agreeing on everything.
I liked what I heard and the summary that you gave us. What I’m wondering is this: what would you say are some of the best practices that you’ve looked at in the world that would fit into the Canadian context? What were some of the countries that you looked at in your studies and with your students that you think might fit with our context.
Ms. Barrett: Thank you for the question. We do think that the European laws are most interesting to us now because they’re actually trying to address and respond to the victims. That’s always what we’re ultimately trying to pass laws for: to protect victims. When you have a globalized world, it’s quite difficult to get to a victim at the bottom of the supply chain, right? That information is not easy to get. One of the reasons we’re concerned is that it’s hard for victims to bring any cases. If they’re living overseas and are a victim of abuse in a large supply chain, first of all, they may really need their job and may not want to complain, right? This is a very unusual situation that is not uncommon. But you need to have pathways and channels that are accessible to victims on the ground.
What has happened so far here is that civil society organizations and activist groups have found plaintiffs in country, brought them into Canadian courts through tort law and used international human rights law via a tort claim in Canadian courts. That has been successful. The Supreme Court of Canada recently affirmed that this could happen in the Nevsun case. A big settlement followed, and the 90 plaintiffs from Eritrea were quite happy with the settlement. But that’s a very unique situation. That was mostly because of the very hard work of several lawyers and a small civil society group. That’s not really a systemic solution. They got lucky. They got lucky that they had good people on their side, but not everyone else will be so lucky.
Maybe I could ask Letty if she would like to come up and talk about the European situation because she has been looking into it.
Letty Condon, Student Clinician, International Justice and Human Rights Clinic, Peter A. Allard School of Law, University of British Columbia: Yes, of course, thank you for giving me this opportunity to speak this afternoon, this evening or middle of the night where everyone is. My name is Letty Condon.
We’ve been looking at the legislation that has been put into place in countries across the world and probably most notably in Europe. I think what’s been most interesting to us is that the European Commission proposed a draft directive some time ago instigating managing human rights due diligence measures for corporations. Actually, their most recent proposal only last month was a slightly watered-down version of that. That has been a process of considerable research and engagement on the part of both corporations and legal scholars, and yet they’ve still taken an approach that does include measures like a private right of action for victims and requiring corporations to undertake mandatory human rights due diligence. They have introduced a threshold; they have accepted that not every company can necessarily put into place these measures that easily, perhaps, at least, to start with. As time goes on, as more companies are engaging with it, then things will be cheaper and easier to do as well. That seems to be in keeping with the research they have undertaken.
We really feel that the most recent proposal by the European Commission is perhaps the expected bare minimum international standard now for corporations. Thank you very much.
Senator Hartling: Thank you very much. Very interesting.
The Chair: Thank you very much.
Senator Bernard: Professor Barrett, I would like to come back to this question of the absence of a gender-based or gender-plus analysis that takes into account intersectionality and culturally responsive intersectionality. I would ask for your perspective on that, or if any of your students have specifically looked at that, we would appreciate hearing from you.
Ms. Barrett: I can point you to some research reports that the UN Office on Drugs and Crime have published, and they have good statistics that show who the victims are and they break them down by gender. You can see that in sex trafficking, there are significantly more women and girls than men and boys, up towards 90%, but when it is labour trafficking, the numbers are much closer to 50-50. It’s shifted over time, and increasingly, there are more men and boys who are also in labour trafficking. They have a whole series of graphs, and you can see it broken down by type of trafficking what the gender differences are. We’re happy to provide those graphs to you. I think that will easily give everyone views. I think Senator Miville-Dechêne probably has them at her fingertips as well, because I know she was closely studying those aspects as well.
Senator Bernard: That would be helpful. Thank you.
The Chair: Thank you. I have a supplemental to Senator Bernard’s question. When we talk about gender differences, what are the numbers when we look at child labour? Is it still majority girls or equal? Do you have any idea? Do you have figures?
Ms. Barrett: We do have figures. I can’t remember off the top of my head. They have it broken down into boys and girls as well. I know the overall number of adults comes close to 50-50 with labour trafficking. I don’t know and will have to look and send you whether that’s different with boys and girls.
Does anyone recall? No. We’ll have to send you further information on that.
The Chair: Thank you. I see that my colleague Senator Miville-Dechêne has a supplemental or a clarification.
Senator Miville-Dechêne: In what I have read on child labour, there are more boys than girls, but a lot of people are not convinced by those statistics because there may be many girls working at home and not counted doing that labour at home who could be in that category of forced labour. It is not absolutely clear for children, but officially there are more boys than girls as working children.
Ms. Barrett: I would also follow up to say that it depends on whether you count sex trafficking as labour, because some groups do. If you count sex trafficking in those groups, if it’s sex work rather than sexual exploitation, which is sometimes counted, then there would be far more girls.
Senator Miville-Dechêne: Yes. I should have said that.
The Chair: This brings me to my final question. I ask this question because sometimes we need clarification on what we have heard from witnesses for our studies.
In its brief to the committee, the International Justice and Human Rights Clinic at the University of British Columbia recommended that Bill S-211 be amended to capture businesses engaged in the provision or procurement of services in addition to goods. Does this distinction affect whether human trafficking and sexual exploitation are covered by this bill?
Ms. Barrett: For that, I’m going to ask Adam Snyder, who has been looking at this question, to come up.
Adam Snyder, Student Clinician, International Justice and Human Rights Clinic, Peter A. Allard School of Law, University of British Columbia: My name is Adam Snyder, and I will address the issue of whether Bill S-211 should apply to corporations or any entity whose activities concern only the provision of services, which it currently does not. In the current form, the requirements of Bill S-211 do not apply to entities whose business activities concern only services. This loophole would allow a significant number of entities to escape regulation under Bill S-211, undermining the bill’s important goal of preventing human rights abuses in Canadian supply chains. According to Statistics Canada, Canada imported $86.6 billion in commercial services in 2019 alone, which includes management services, financial services and information services.
Further, restricting the requirements of Bill S-211 to entities whose activities concern goods would be out of line with other prominent examples of human rights supply chain legislation abroad, including the older, reporting-only pieces of legislation, such as California’s Transparency In Supply Chains Act. It is also inconsistent with Canada’s obligation under international human rights law. As we mentioned in our brief, and Professor Barrett mentioned at the beginning of her presentation, there are many human rights treaties that Canada is a party to that have asked Canada to pass regulation and legal frameworks to ensure that Canadian companies do not adversely affect human rights abroad. They have not tailored their recommendations to only small- and medium-sized corporations. In fact, both the Human Rights Committee and the Committee on the Rights of the Child have asked that these laws apply to all Canadian corporations, not just large ones.
With respect to whether the addition of a provision that would capture services in Bill S-211 that would also include sex trafficking and human trafficking, I am not personally sure. That is a great issue that the senators should consider, but I don’t think it should be what stops the senators from including this very simple amendment to capture companies who would perhaps infringe on human rights but don’t produce goods. Thank you.
The Chair: Professor Barrett, I don’t want Lauryn Boag to feel left out. If you can give her a few minutes. I’m a mother — what I can I say?
Ms. Barrett: Thank you. I was trying to figure out what I was going to say.
The Chair: If we can hear from her, or if there is any aspect of the bill that she would like to address, we would be more than happy to hear it.
Ms. Barrett: I will pick an issue. Lauryn, could you please come up and talk about the importance of transparency and central registries?
Lauryn Boag, Student Clinician, International Justice and Human Rights Clinic, Peter A. Allard School of Law, University of British Columbia: Thank you very much. As Professor Barrett mentioned, I’ll briefly talk about how transparency is very important for this bill.
As it currently stands, Bill S-211 does include a provision indicating the Department of Public Safety and Emergency Preparedness will maintain a public, online registry containing all reports that would be provided to the minister. We believe this could be strengthened further. We think it would benefit from a specific list of all the entities required to be reporting under the bill. This would allow the government, consumers and civil society to easily identify who is not in compliance with the legislation and who is.
As previous speakers mentioned, this transparency is a vital aspect of human rights due diligence, but it is only one aspect. We do think that companies should be doing more than simply reporting; they should be taking steps to avoid and mitigate human rights violations.
The Chair: Thank you very much.
Senator Miville-Dechêne: Could you explain what you understand by the word “remediation” because this is a word that is often used? It is used in our bill, and it seems that there are quite a few meanings. When we ask companies to tell us about remediation of forced and child labour, what does that imply from your point of view?
Ms. Barrett: From our point of view, it implies that the companies are taking steps to change whatever the problem is. They’re addressing the problems themselves and fixing the issues within their supply chains. You may need to change suppliers. There is a whole list of things of various possible remediations that could take place.
There is a whole cottage industry that looks at evaluating supply chains, and they do risk analysis. They have a whole series of remediations that can take place. Sometimes it’s working with suppliers to get them to change their behaviour. If they won’t comply, then changing suppliers and finding others who are willing to comply.
That’s where these databases, these big central registries, can be very effective because you can then find the good actors because you can see. There are some really great business actors out there. One I would point to that we marvel at is Levi Strauss. When you look at what they have done in the supply chains and the information they’ve given, you can really tell they’re trying to solve issues. They will give information about problems they found in their own supply chains and what they did about it. I can provide that information and you can compare it then to some of the other statements which are two brief paragraphs long that say almost nothing.
There are a very wide range of responses that we see from businesses. The remediation can be many different things. You can look to the best actors and then see the strong remediation practices.
Then another confusion, just to clarify, is that remedies sound like remediation. When they talk about human rights remedies, it is often for victims’ ability to seek some kind of accountability in a court system or an adjudicative body, so there is another aspect to remediation.
But for remedies, one thing we haven’t spoken about is how the CORE, the Canadian Ombudsperson for Responsible Enterprise, fits into this picture and whether or not that’s sufficient. We would say it’s not because the victims need to have the ability to proceed with their inquiry and not have it be something that’s optional that businesses can opt out of.
Senator Miville-Dechêne: Thank you. Thank you for all your research.
Ms. Barrett: You’re very welcome. We’re excited to be doing it and very pleased to have the opportunity to speak with you today.
The Chair: Thank you very much, senators. That brings us to the end of today’s testimony for the Standing Senate Committee on Human Rights.
On that note, I would like to thank you very much for your participation here, and your assistance with our study is much appreciated. Thank you, senators. We will be proceeding to clause-by-clause next week on Monday, April 4. Thank you.
(The committee adjourned.)