We recommend that the government take urgently-needed steps to ensure Canadian companies respect human rights, labour rights, and the environment throughout their global operations and supply chains. The government should do so by effectively resourcing and empowering the Canadian Ombudsperson for Responsible Enterprise to independently investigate abuses by Canadian companies, and by tabling mandatory human rights and environmental due diligence legislation. 

Read our submissions in full: 

• Submission to the Standing Committee on Finance (August 1, 2025) 
• Submission to the Department of Finance (August 28, 2025)

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For over a decade, the Canadian Network for Corporate Accountability (CNCA) has advocated for an independent Ombudsperson with real powers to investigate the abuses and harms caused by Canadian companies operating abroad. Drawing on this experience, we have provided our recommendations in a 2-page briefing available here.

Canadian companies operating abroad or importing goods into Canada are associated with widespread and egregious human rights abuses, including forced labour, serious environmental damage and killings. This is contributing to a global ecological and social crisis.

Nonetheless, the CORE lacks essential powers to investigate complaints and compel witness testimony. As a result, it is unable to take meaningful action and impacted communities risk wasting their time if they file a complaint. In our submission, we call on the government to ensure the CORE is able to investigate all complaints transparently and in a timely fashion.

According to CNCA director Shane Moffatt:

“The CORE has a vital role to play in holding Canadian corporations accountable for their actions overseas. Trade Minister Mary Ng needs to ensure it has the power to fully investigate complaints. People harmed by Canadian companies deserve an Ombudsperson who can get to the bottom of human rights abuses and prevent further harms.”

“As one of the authors of the multi-stakeholder CSR Roundtable Report (2007), MiningWatch Canada joined with mining industry representatives in calling on the Government of Canada to establish an Ombudsperson. The need for this office is as great as ever, but it must finally be granted the investigatory powers the government initially committed to and be provided independence from the government.” – Catherine Coumans, Research Coordinator, MiningWatch Canada

“The CORE must have real investigative powers to address the harms caused by corporations operating abroad. Without such accountability, women—who already face systemic discrimination and violence—will continue to suffer disproportionately from exploitative practices like land grabs, forced labor, and environmental damage. Empowering CORE is essential for safeguarding human rights and advancing women’s economic and social well-being globally.” – Jean Symes, Deputy Executive Director, Inter Pares

ENDS

Note to editors: 

The CNCA’s submission to Global Affairs Canada is available here.

For more information, please contact:

Shane Moffatt, Director, Canadian Network for Corporate Accountability 

smoffatt@cnca-rcrce.ca

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The Government of Canada has committed to introducing legislation to “eradicate forced labour from Canadian supply chains and ensure that Canadian businesses operating abroad do not contribute to human rights abuses”. Budget 2023 promised that the legislation would be introduced by 2024. In October 2023, Economic, Social Development Canada requested additional input on the content of legislation, specifically asking questions about the human rights due diligence obligations, entities covered and enforcement of the import ban.

Please note that the Canadian Network for Corporate Accountability (CNCA) and its members have previously provided the Government of Canada with extensive input on these and related issues. In addition to input provided in regular meetings with decision-makers, and supplemental information provided below, we ask you to refer to the following online documents as official annexes of this submission:

• In 2019, CNCA participated in formal stakeholder consultations with Minister Patty Hajdu and subsequently submitted consensus starting points for supply chain legislation that were endorsed by 35 Canadian civil society networks, organizations and unions. 
• In 2021, CNCA released a complete model law for the Government of Canada to use as a blueprint for effective mHREDD legislation. 
• In 2022, CNCA produced a comprehensive brief on the five key elements of an adequate supply chain law about which the Government of Canada requested additional input.The annex to that brief includes selected publications and input from CNCA and CNCA member organizations produced from 2017- 2022. 

The CNCA was pleased to see a renewed commitment in Budget 2023 to introduce supply chain legislation by 2024. However, to be effective at protecting human rights in supply chains, that legislation must: 

1. require companies to prevent human rights violations and to put in place adequate human rights due diligence procedures;
2. help affected people outside Canada access remedy in Canadian courts; and
3. apply to all human rights.

It is urgent for Canada to respond to the widespread, well-documented evidence of human rights abuses and serious environmental damage in Canadian supply chains and global business operations.

Supplemental feedback on ESDC discussion document

CNCA provided input at the in-person full day session organized on Friday October 13, 2023. We wish to provide some additional comments in writing. They do not cover all of the input provided at the in-person session nor attempt to answer all of the discussion questions. 

1. Canada’s supply chain due diligence law must absolutely be consistent with UNGPs

It is imperative that Canada’s supply chain human rights due diligence law be consistent with the United Nations Guiding Principles on Business and Human Rights. There are worrying indications in the discussion document that officials might be contemplating legislative options that would be inconsistent with the due diligence processes laid out in the United Nations Guiding Principles on Business and Human Rights.

For instance, remediation is not merely an optional action for a company in cases where they have caused or contributed to harm. Rather, it forms a crucial component of how they implement their responsibilities. This constitutes an essential aspect of the due diligence process as laid out in the UNGPs at Principle 15(c) and in the OECD Due Diligence Guidelines. Similarly, continuous engagement with stakeholders and rights-holders is fundamental to the due diligence process outlined in the UNGPs. It serves as a vital mechanism for companies to identify risks, mitigate and prevent harms and offer appropriate remedy, aligning with the principles laid out in UNGP 18.2. If these steps are made optional under the new law, then what it will be requiring of companies is not human rights due diligence, but rather a substandard risk management exercise.

The 2017 end of mission report of the United Nations Working Group on Business and Human Rights similarly integrate remediation as a core part of  human rights due diligence:

“The UN Guiding Principles calls upon companies to conduct human rights due diligence to identify, mitigate and remediate adverse human rights impacts in business operations and business relationships. We heard from many stakeholders that Canada should encourage more robust human rights due diligence from extractive companies and should begin to address issues such as human trafficking/modern slavery and other human rights abuses in global supply chains. We would encourage the federal government to examine how it might use regulatory measures focused on mandatory due diligence and non-financial disclosure as means of promoting respect for human rights…” (emphasis added)

2. The evidence is crystal – clear: voluntary measures don’t work. Therefore, if you take any of the due diligence steps out they will not happen.

To date, Canada has relied almost exclusively on voluntary approaches to prevent, address and remedy serious harms. Voluntary approaches, in Canada and elsewhere, have proven on their own to be ineffective at curbing corporate abuse. Below are a few examples elucidating the point:

• A 2020 study commissioned by the European Commission established that voluntary measures have had only a limited impact.
• A 2022 report by Know the Chain “exposes the glacial rate of progress on due diligence by the world’s largest companies over the last five years. On average, the 129 companies benchmarked by KnowTheChain score a mere 29% for their human rights due diligence efforts. Key findings include:
  • Over a third of benchmarked companies (36%) do not show any evidence they are assessing human rights risk in their supply chains.
  • Four out of five provide no evidence they are adopting responsible purchasing practices to mitigate the risk of forced labour in their supply chains.
• A 2021 Responsible Mining Foundation report highlights that “the vast majority of companies assessed in the RMI Report 2020 show no evidence of translating their corporate commitments into action plans, thorough due diligence processes, and tracking the effectiveness of implementation. On average the set of large mining companies assessed in the RMI Report 2020 achieve a low 19% score on human rights-related issues.”

Germany’s 2011 national action plan on business and human rights sets out an expectation that companies respect human rights. However, a study commissioned by the German government found that a decade into this voluntary expectation being articulated in the country’s NAP, only 13-17% of companies were undertaking human rights due diligence procedures. This led Germany to pass a supply chain human rights due diligence law. 

3. CNCA has provided a ready-to-use, credible blueprint through its model law

CNCA’s model should serve as the foundation of the government’s due diligence legislation. This model was meticulously crafted by Canadian legal experts, drawing from insights provided by subject matter experts, active engagement with rights-holders, a comprehensive study of international best practice, and is endorsed by academics, rights-holder groups, investors and Canadian civil society.

The CNCA’s model law:

1. was the product of years of extensive research, outreach and input from renowned legal experts here in Canada and around the world; 
2. has been endorsed by 61 organizations, unions and investor groups from Canada and around the world; 150 organizations, unions and groups working with directly impacted people from 32 countries; and
3. would back up the Canadian government’s long-standing “expectation” that companies respect human rights with a legal requirement to do so. 

4. Recent UN special rapporteurs confirm the need to ensure due diligence obligations, access to remedy and strong enforcement measures

In 2023, two UN special rapporteurs undertook country visits to Canada: the Special Rapporteur on the rights of Indigenous peoples (UNSRRIP) and the Special Rapporteur on contemporary forms of slavery (UNSRCFS). Both concluded that Canada was failing to adequately fulfill their obligations under those conventions:

UNSRRIP (2023):  The UNSR on the rights of Indigenous Peoples’ 2023 report on Canada recommends, amongst other things, that Canada should:

• “Recognize the extraterritorial human rights obligations of Canadian companies operating abroad and ensure that they are held accountable for human rights violations committed in other countries, including against Indigenous Peoples”;
• “Adopt human rights and environmental due diligence legislation to require companies to proactively prevent violations of human rights, including rights contained in the United Nations Declaration on the Rights of Indigenous Peoples”;
• “Establish mechanisms to ensure that government support to companies, including political and commercial support by embassies and financing through Export Development Canada, is conditional on respect for international human rights and environmental standards, including the Declaration”;
• “Reform the office of the Canadian Ombudsperson for Responsible Enterprise to ensure that it is fully independent, and strengthen its mandate by granting it full investigatory powers, establish effective safeguards to protect Indigenous petitioners from reprisals and create greater awareness of the mechanism”.

UNSRCFS (2023):  The UN Special Rapporteur on Contemporary Forms of Slavery in his September 2023 End of Mission Report said:

“While the Special Rapporteur acknowledges these important developments, he retains some concerns over Canada’s current approach to human rights due diligence for Canadian companies. The annual reporting required under Bill S-211 can promote transparency to some extent; however, there is a risk of this becoming a box ticking exercise where companies simply submit the same statement every year, as has been reported in other jurisdictions. Self-reporting and the lack of a monitoring mechanism mean that companies could conceal or omit relevant information to protect their reputation and profits. In addition, Bill S-211 does not require Canadian businesses to implement human rights due diligence, nor implement measures to prevent, address, and remedy abuses once identified. Some interlocutors fear that Bill-211 may do more harm than good as it creates the appearance of strengthening human rights due diligence among Canadian companies without having this result in practice, and may lead to complacency in terms of introducing and implementing more robust human rights diligence, such as for example the measures outlined in Bill C-262, the Corporate Responsibility to Protect Human Rights Act.

In relation to the import ban, Canada so far has intercepted only one shipment, which was later released upon appeal. Issues like a high evidential requirement and lack of resources have been raised as obstacles, and the Special Rapporteur urges the Government to rectify these as soon as possible as he is concerned by the reports that a large amount of goods potentially produced as a result of forced labour enter into Canada unchecked. Further, although public procurement policies to end relationships with suppliers using forced labour were applied in the instance of Supermax, some interlocutors noted this was only after widespread media coverage of the issue and action by the United States.

The Special Rapporteur raised these concerns with the Government of Canada, which replied that it was currently considering a draft legislation on due diligence which aims to complement Bill S-211, though the Government would not specify whether the scope of this due diligence included human rights considerations. The Special Rapporteur regards that the imposition of mandatory human rights due diligence, with a sufficient penalty regime for non- compliance, is the way forward, and urges the Government to consider this seriously and expeditiously. In the interim, clear guidance on the reporting required under Bill S-211 and a mechanism for monitoring and oversight should be established.” (emphasis added)

Multiple UN bodies call on Canada to do more

Canada’s failure to regulate and ensure access to remedy for harms associated with Canadian business activity overseas is inconsistent with Canada’s international human rights obligations and has attracted the attention of the United Nations. For example, from 2007 to 2016, at least four United Nations treaty monitoring bodies called attention to human rights violations by Canadian extractive companies overseas and called on the Canadian government to take steps to prevent abuses and facilitate access to justice and remedy. 

About the CNCA

 Our network unites 41 human rights, labour, international development, environmental and faith-based organizations from across Canada that collectively represent the voices of millions of Canadians. Together we call for Canadian law and policy reform to ensure that impacted communities can access remedy in Canada if they are harmed by Canadian business activity abroad or by practices in Canadian supply chains; Canadian companies respect human rights in their global operations; and, if they are involved in abuses abroad, Canadian companies face real consequences in Canada. A link to our member list is in the Annex.

Many of our members have decades-long relationships with people who have been negatively affected by Canadian businesses abroad, especially in the extractive sector. We are subject matter experts on corporate accountability and on business and human rights. Examples of our members’ work to put an end to forced labour include Above Ground’s 2021 report Creating Consequences: Canada’s Moment to Act on Slavery in Global Supply Chains; the 2020 report by the Centre international de solidarité ouvrière on preventing forced labour in Canadian food supply chains; submissions by the Canadian Labour Congress, Amnesty International Canada and Human Rights Watch Canada to the House of Commons Subcommittee on International Human Rights’ 2017 study on child labour and modern slavery; and CNCA member interventions in the Supreme Court of Canada case involving Canadian company Nevsun Resources’ links to forced labour in Eritrea (see, for example, here and here).

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Cover Letter

RE: Call for submissions ahead of visit to Canada

TO: Professor Tomoya Obokata, Special Rapporteur on contemporary forms of slavery; Office of the United Nations High Commissioner for Human Rights; Palais des Nations, CH-1211 Geneva 10, Switzerland

May 31, 2023

Dear Professor Obokata,

Above Ground and the Canadian Network for Corporate Accountability (CNCA) welcome the opportunity to inform preparations for your upcoming visit to Canada. What follows is a brief by Above Ground outlining gaps in existing Canadian laws and policies on forced labour abroad, and including commentary from the CNCA on Canada’s new corporate reporting law, the Fighting Against Forced Labour and Child Labour in Supply Chains Act. We show that Canada lacks measures requiring companies to exercise due diligence, its forced labour import ban has gone largely unenforced, and its new law requires no action by companies to address the issue.

We would also welcome the opportunity to meet with you during your visit.

Above Ground works to ensure that companies based in Canada or supported by the Canadian state respect human rights and the environment wherever they operate. Above Ground is a member of the CNCA.

The CNCA advocates for mandatory corporate accountability standards for Canadian companies operating abroad. The network brings together forty human rights, environmental, labour, faith-based and solidarity groups from across Canada. It represents the concerns of millions of Canadians and is connected with communities, workers, Indigenous peoples, and environmental and human rights defenders from around the world.

Sincerely,

Karen Hamilton, Director, Above Ground
Aidan Gilchrist-Blackwood, Network Coordinator, Canadian Network for Corporate Accountability

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Submission to the UN High Commissioner for Human Rights’ Special Rapporteur on contemporary forms of slavery

The Canadian government and Parliament are actively examining legislative options to address forced labour in companies’ global supply chains. Crafting an effective legal framework to counter this injustice will require a clear understanding of the gaps left unaddressed by Canada’s existing laws and policies, and their enforcement. To help inform this debate, here we take stock of existing Canadian legislation and policies that either aim explicitly to fight forced labour in companies’ international supply chains or could be used towards that end. [1]

Customs Tariff import ban on products of forced labour

Canada committed to ban the importation of all products of forced labour when it signed the Canada-United-States-Mexico Agreement in 2018. The prohibition applies to all “goods that are mined, manufactured, or produced wholly or in part by forced labour.” It was added to Canada’s Customs Tariff legislation and came into effect in July 2020.

While other jurisdictions are considering similar measures, the U.S. and Canada are the only countries that have had such a legal provision in force for a significant period of time. [2]

In both countries, the ban is enforced by customs authorities, who are expected to block goods made with forced labour from entering the domestic market by detaining shipments of these goods as they arrive at the border. An importer whose shipment is detained could forfeit it, export it to another country, [3] or challenge its classification as a product of forced labour. If the importer can prove that no forced labour was used to produce the goods, they will be released.
Beyond this, however, Canada’s enforcement approach differs dramatically from that of the U.S., in ways that will likely continue to result in Canadian enforcement action being far rarer and more limited in scope. For instance:

• While U.S. customs authorities will block goods based on “reasonable suspicion” they were made using forced labour, the Canada Border Services Agency (CBSA) says it must have “legally sufficient and defensible evidence of production by forced labour” before it can act. [4]
• The CBSA says Canada’s Customs Act and Privacy Act prohibit it from publicly naming the manufacturers whose goods it decides to block. Such disclosure is a key factor in the effectiveness of U.S. enforcement actions. It flags to all importers goods that must be removed from their supply chains, and exerts additional pressure on manufacturers to clean up their practices. [5]
• The CBSA asserts that it can’t make determinations that all goods of a certain type from a specific region are produced by forced labour and are therefore prohibited—as U.S. authorities have done with products containing cotton from Turkmenistan or from the region of China known as East Turkestan or Xinjiang, for instance.

The U.S. has also adopted additional legislation directing its customs authorities to block all goods made in this region of China. Similar legislation has been tabled in Canada, but it has several stages still to pass through in Parliament before it could be voted into law.

It’s not clear if Canada’s enforcement framework even allows for the prohibition of all goods of a given type made by a specific company. The CBSA insists goods can only be classified by individual officers on a shipment-by-shipment basis, as each one arrives at the border. The CBSA has declined to clarify whether, once one officer classifies a company’s product as having been made with forced labour, other officers are required to follow suit with other shipments of the same product from the same manufacturer. [6]

These and other notable differences between the Canadian and U.S. enforcement approaches are summarized in the table below.

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Sanctions legislation

Canadian sanctions law can be used to place restrictions on financial, business or technological dealings with foreign individuals, governments or companies in relation to “gross and systematic human rights violations” committed abroad. When targeting individuals or companies, these restrictions generally forbid Canadians and Canadian businesses [12] from dealing in any property, including financial assets, of the person or company in question.

It is possible, then, for Canada to use sanctions to limit Canadian business ties to foreign companies implicated in systematic forced labour schemes, particularly when these affect vast swathes of a population or are tied to other serious human rights violations, as has been reported in East Turkestan / Xinjiang.

Canada has taken one step in this direction, passing sanctions that restrict business dealings with a division of a Chinese entity, the Xinjiang Production and Construction Corps (XPCC), for its role “in the mass arbitrary detention, torture…, mass surveillance and forced labour of Uyghurs and other Muslim ethnic minorities in the XUAR [Xinjiang Uyghur Autonomous Region].” The XPCC is a paramilitary organization that operates as both a state-owned business and government authority in a large territory within this region. It owns thousands of subsidiary companies across many industries. Canada’s sanctions do not apply to the XPCC as a whole, however, but only to its “Public Security Bureau.” The government notes that “it is unlikely that Canadian businesses have dealings” with this entity.

Beyond this, Canadian sanctions law can also be used to impose financial, trade or investment restrictions on whole business sectors—or all business sectors—within a given region or country. [13] This can include prohibiting the importation of any goods from a certain region.

Unlike the Customs Tariff provision, which can only be used to block the importation of goods into Canada, sanctions legislation could be used to bar Canadian companies operating anywhere in the world from doing business with a designated company or sourcing from a given region. It would also offer greater transparency on the restrictions established, as sanctions are imposed through regulations specifying which activities are prohibited, and which goods, companies or regions are covered.

The Fighting Against Forced Labour and Child Labour in Supply Chains Act

On May 3, 2023 Canada adopted the Fighting Against Forced Labour and Child Labour in Supply Chains Act (formerly Bill S-211). Contrary to claims made by proponents and widely reported by the media, the act does not require companies to examine their supply chains or take steps to ensure they are free of forced labour. Instead, under the act, medium and large firms are required to publish annual reports stating the steps they’ve taken, if any, “to prevent and reduce the risk” that forced labour or child labour is used in their supply chains. 

According to analysis of Bill S-211 by law professor Penelope Simons, “[i]f a company has no policies on forced or child labour and/or has taken no such steps, it will only need to report that fact. It is only if a company fails to report, to make the report public, or if it provides false or misleading information that it can incur a fine of up to $250,000. The prescriptions of this Bill do not meet Canada’s obligations to protect human rights, nor do they meet the UN Guiding Principles on Business and Human Rights.”

 Proponents of the act have argued that reporting requirements can nonetheless have an impact: once companies face public scrutiny over potential abuse in their supply chains, they will feel compelled to take meaningful action to end it. This is disputable. The act is modelled on similar laws in the U.K. and Australia, and recent studies show these laws have failed to incentivize companies to address the risk of forced labour and child labour in their supply chains.

The CNCA repeatedly raised concerns about Bill S-211 before it was adopted, including that it would give a false impression of government action on human rights and could delay progress towards effective measures. To effectively address forced labour and other abuses, the network advocates for a robust mandatory human rights and environmental due diligence law in Canada, such as the Corporate Responsibility to Protect Human Rights Act (Bill C-262), which is based on model legislation developed by the CNCA.

Government pledges new legislation in 2024: The Canadian government recently committed to “introduce government legislation next year to help eradicate forced labour from Canadian supply chains” and “strengthen the import ban on goods produced using forced labour.” The labour minister reportedly said the legislation “will build on S-211” and “oblige companies to take steps to eradicate forced labour from their supply chains after it’s discovered.” However, the “exact measures in this upcoming bill are still to be determined” and it appears the deadline has been pushed to “the end of” 2024.  The CNCA calls on the government to immediately put forward legislation that: requires companies to exercise due diligence in preventing human rights abuses; helps people outside of Canada who have been harmed access remedy in Canadian courts; and applies to all human rights. 

Public procurement policies

Since 2018, the Canadian government has required its apparel suppliers to sign a statement declaring that they and their first-tier subcontractors respect “eight fundamental human and labour rights,” including by not using any “forced labour or compulsory labour.”

In 2021 the government adopted a similar requirement for all suppliers contracting with its central procurement department, Public Services and Procurement Canada (PSPC). [14] The department’s updated code of conduct for suppliers states that it “expects vendors to guarantee workers’ labour and human rights in their main operations and their supply chains.” This includes monitoring for abuse in their supply chains, and ensuring that they and their subcontractors don’t import into Canada goods made with forced labour.

The department also amended its standard contract terms to allow it to end a contract if it has “reasonable grounds to believe” the goods supplied were “produced in whole or in part” with forced labour. PSPC “may” opt to terminate a contract on these grounds, but this result isn’t certain even if the goods are determined by the Canada Border Services Agency to be products of forced labour. Business considerations may take precedence in PSPC’s decision in such cases. [15]

There is one publicly known case in which the government terminated a contract over forced labour concerns. In January 2022 it cancelled two contracts with Supermax Healthcare Canada, from which it was sourcing disposable gloves made in Malaysia by the firm’s parent company, Supermax Corporation. 

These contracts had come under media scrutiny in October 2021 when American authorities banned Supermax’s gloves from the U.S., reporting they’d found all but one of the ILO’s 11 indicators of forced labour at the Malaysian factories. In November 2021 the Canadian government said it was putting deliveries of the gloves on hold pending results of an audit ordered by the company. Two months later it opted to cancel the contracts due to “the seriousness of the allegations” and lack of timely results from the audit. 

It’s unclear if these alleged abuses would have come to the Canadian government’s attention if not for widespread media coverage of the U.S. enforcement action. The procurement department states that it will not monitor suppliers’ compliance with the code. Instead, it “is expected that vendors will follow the principles set out in the code in good faith.”

Complaint review and mediation offices

The government operates two offices that encourage businesses to respect human rights in their dealings around the globe: Canada’s National Contact Point (NCP) for responsible business conduct, which covers all industries, and the Canadian Ombudsperson for Responsible Enterprise (CORE), which focuses on the extractive and garment industries. Both can receive complaints about a Canadian company’s harmful practices, and may offer “dialogue facilitation” to the company and aggrieved parties or recommend steps the company should take to resolve the problem. In principle, either the NCP or CORE could consider a complaint that a company employs forced workers itself overseas or sources goods from manufacturers that do.

It should be noted, however, that a voluntary agreement by a company to change its practices has been an exceedingly rare outcome in the dozens of cases brought to the NCP since it was created in 2000. [16] The CORE is a newer office, and has yet to conclude a case. It has no substantial powers that go beyond those of the NCP, despite an initial commitment by the government to grant the office investigative powers to ensure its ability to uncover the truth about alleged human rights abuse.

Trade and financial support policies

Questions have been raised as to whether a company’s eligibility to receive trade and financial support from the Canadian government would be affected by evidence of forced labour in its supply chain. The government’s policy here, as set out in its “Responsible Business Conduct” strategy document, isn’t entirely clear.

The government requires businesses seeking trade advocacy support to “attest that they operate in a manner consistent with the UN Guiding Principles [on Business and Human Rights].” It further requires those with ties to East Turkestan / Xinjiang to sign a declaration that they haven’t “knowingly sourced” from a supplier implicated in forced labour or other human rights abuse in the region. It doesn’t state, however, what consequence would follow if it became clear that a company that signed one or both of these statements is in fact sourcing goods made by forced workers. 

The government’s strategy document identifies one circumstance in which a company may be cut off or denied support. If the firm were subject to a complaint to the NCP or CORE and it failed to “act in good faith” during their review, the government may recommend “trade measures such as the withdrawal of [trade commissioner support]” or denial of future support from Export Development Canada and the Canadian Commercial Corporation.

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Further reading

• “Anticipated Canadian law on forced and child labour will achieve little, say experts,” blog post, Above Ground, March 2023 
• “Canadian importers largely silent about their potential ties to forced labour,” report,  Above Ground, February 2023
• Creating consequences: Canada’s moment to act on slavery in global supply chains, report, Above Ground, June 2021 
• “Forced labour in Canada’s PPE supply chains,” case study, CNCA, February 2023
• CNCA submission to the Standing Committee on Foreign Affairs and International Development’s study of Bill S-211, cover letter and detailed submission, CNCA, November 2022
• “Don’t Mistake Reporting for Accountability,” Comparative Chart of Bill S-211 and Bill C-262, CNCA, June 2022
• “Human Rights and Accountability: Non-Negotiable Campaign,” media backgrounder, CNCA, March 2022

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In our engagement with the CORE we have been very clear that absent implementation of the mandate and powers to independently investigate human rights abuse allegations promised by the Government of Canada, no changes to the CORE’s SOPs would make the CORE fit for purpose. Our prior submissions have included recommendations to prepare the CORE to serve impacted communities once it is provided the promised powers as well as recommendations to help reduce the risk that the CORE’s processes or procedures will cause or exacerbate harms experienced by impacted communities.

The feedback we share in the attached focuses exclusively on:

1. highlighting key concerns about how the CORE as currently structured may cause harm, including in relation to project site visits without due consultation with, and consideration for attendant risks to, impacted communities, and
2. providing feedback to the CORE’s draft retaliation framework.

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Cover Letter

4 December 2020

To the office of the Canadian Ombudsperson for Responsible Enterprise (CORE)

We are writing to express our concern that the Canadian Ombudsperson for Responsible Enterprise (CORE) will soon be opening its doors to complaints and all evidence suggests it will not only fail to serve the needs of communities impacted by Canadian business operations overseas, but may itself cause or exacerbate the harm experienced by vulnerable individuals seeking redress.

In our third submission to the CORE’s Standard Operating Procedures (SOP) consultations we made note of the fact that multiple simultaneous government consultations on business and human rights issues impacted civil society’s ability to adequately contribute. We appreciate that your office was receptive to this feedback. We also expressed concern that the CNCA’s detailed submissions had not received any detailed response prior to requests for additional feedback from our network. While we still have many unanswered questions, we acknowledge the effort to create a short chart explaining how feedback has been incorporated.

In our engagement with the CORE we have been very clear that absent implementation of the mandate and powers to independently investigate human rights abuse allegations promised by the Government of Canada, no changes to the CORE’s SOPs would make the CORE fit for purpose. Our prior submissions have included recommendations to prepare the CORE to serve impacted communities once it is provided the promised powers as well as recommendations to help reduce the risk that the CORE’s processes or procedures will cause or exacerbate harms experienced by impacted communities.

Unfortunately, since the time that we offered to provide additional detailed feedback on the CORE’s SOPs the office of the Minister of Small Business, Expert Promotion and International Trade has informed us that they are breaking the government’s promise and will not be providing the CORE with the power to compel documents and testimony. As a result, we are unable to provide further substantive feedback to the CORE SOPs as we do not have any confidence in the CORE’s ability to serve impacted communities at this time.

1. The feedback we share in the attached focuses exclusively on:
2. highlighting key concerns about how the CORE as currently structured may cause harm, including in relation to project site visits without due consultation with, and consideration for attendant risks to, impacted communities; and
   providing feedback to the CORE’s draft retaliation framework.

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For more, see the supplemental submission’s

Appendix I on CORE’s need to avoid harms

Appendix II on the CORE’s retaliation framework now

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Note: This post was originally published as “Supplemental feedback to CORE consultations (Standard Operating Procedures & Retaliation Framework)” on 15 January 2021.

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Summary

Our central message remains the same: the CORE’s standard operating procedures, no matter how they are drafted, cannot make up for the fact that the CORE’s current lack of powers and inadequate mandate render the office unfit for purpose.

As we have reiterated on multiple occasions: “Unless and until the CORE is transformed into the promised independent office with robust powers to investigate, including the power to compel documents and testimony from companies under investigation, the CORE will not have the minimum powers required to be effective.”

Ongoing concerns

This latest iteration of the CORE’s SOPs raises new concerns, and leaves many questions unanswered. Despite incorporating some elements of our prior recommendations, the new draft SOPs will provide little confidence to impacted communities and workers, and the organizations and unions that accompany them, that legitimate human rights abuse allegations linked to Canadian business activity overseas will be fairly or effectively addressed by the CORE.

Final Submission

Read the full final submission here.

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Text of the Submission, 9 October 2020

Summary feedback from the CNCA on the CORE’s September 2020 draft SOPs

This is the third submission from the Canadian Network for Corporate Accountability (CNCA) in response to requests for input on the various iterations throughout 2020 of the draft Standard Operating Procedures (SOPs) of the Canadian Ombudsperson for Responsible Enterprise (CORE).

Our central message remains the same: the CORE’s SOPs, no matter how they are drafted, cannot make up for the fact that the CORE’s current lack of powers and inadequate mandate render the office unfit for purpose.

As we have reiterated on multiple occasions: “Unless and until the CORE is transformed into the promised independent office with robust powers to investigate, including the power to compel documents and testimony from companies under investigation, the CORE will not have the minimum powers required to be effective.”[i]

This latest iteration of the CORE’s SOPs raises new concerns, and leaves many questions unanswered. Despite incorporating some elements of our prior recommendations, the new draft SOPs will provide little confidence to impacted communities and workers, and the organizations and unions that accompany them, that legitimate human rights abuse allegations linked to Canadian business activity overseas will be fairly or effectively addressed by the CORE.

One step forward: incorporation of some rights-based recommendations

We take note of the fact that some of our previous recommendations have been – at least in part – reflected in the revised SOPs.

For example:

• Language has been added on CORE’s role in representing the public interest in the protection of human rights and prevention of abuse;
• It has been clarified that (a) complainant(s) decision not to participate in mediation, including joint fact finding, will not bear on a determination of complainant(s) “acting in good faith”;
• It has also been clarified that CORE may retain authority to deal with some aspects of a complaint even if it elects to refer the complaint to another forum;
• Some language around retaliation has been added; however, the content of the provisions on retaliation are inadequate; and
• A few areas have been made more clear by changing language from “may” to “will.”

Two steps back: Outstanding and new concerns

Despite the above, several significant concerns remain.

1. Independent investigation is the central function that would ensure the effectiveness and credibility of the CORE; as such, it is alarming that it is ill-defined, and otherwise does not figure largely in the SOPs.

The CORE SOPs describe a “review” as being “like [sic] an investigation; it includes information-gathering and fact-finding.” Independent fact-finding is defined in the definitions section, and described briefly at ss. 12.8 and 12.9^[ii].

“Independent fact-finding” is defined as “the process by which the Ombudsperson determines on their own the relevant facts and questions that will form the basis of a review.”

The origin of the CORE’s definition of independent fact-finding is unclear and the definition itself is problematic. Fact-finding includes determining the issues to examine, but not only. It also necessarily includes documenting alleged violations, establishing the facts and reporting on these findings to prevent future harm and ensure accountability.

For example, independent fact-finding missions (United Nations and Canada) articulate that independent fact-finding will:

• “Establish the facts and circumstances”
• “Collect and review relevant information”
• “Document alleged violations and abuses of international human rights law, including any gendered dimensions”
• “Preserve evidence with a view to hold those responsible accountable”
• “Report on the (IFF) mission to issue a comprehensive report on the situation of human rights, including on efforts to prevent and ensure accountability for violations and abuses of human rights and recommendations for follow-up”
• “Examine human rights allegations”^[iii]

No further description of “review” is included in the SOPs. The lack of information about what civil society views as the key function of the CORE is highly discouraging. The definition of independent fact finding makes it more so.

In the end, the CORE SOPs go into considerable detail regarding what is expected of complainants and respondents, while providing very little about what complainants and respondents can expect of the CORE, including detail about the content and process of a review.

2. New framing of “complaint” and “complainant” risks delegitimizing credible allegations of human rights abuse

In this revision of the SOPs, the straightforward language of “filing a complaint” or being a “complainant” used in the previous version has been dropped. The September 2020 version of the SOPs has now come up with new language that narrows the definition of a complaint to those complaints that have surpassed the admissibility threshold.

The relevant definitions are as follows:

• “requester” is the individual, organization or community, or someone acting on their behalf who makes a request to file a complaint
• “complainant” is the individual, organization or community who made a request to file a complaint that the CORE decides is admissible, or the person who did so on behalf of an individual, organization or community
• “complaint” is an allegation of human rights abuse that the CORE has decided is admissible

Why would an allegation of human rights abuse submitted to the CORE not be considered a complaint, regardless of whether it goes through the admissibility threshold?

The new distinction between a “complainant” and someone who “makes a request to file a complaint” could result in the delegitimization of well-founded allegations of human rights abuse, thus further eroding civil society confidence in the CORE.

3. Definition of mediation unnecessarily restricts transparency

While parties to mediation may request confidentiality of all or parts of the process, not every mediation process must or should be kept entirely confidential. The CORE’s SOPs preclude this by defining mediation as: “an informal, voluntary and confidential process in which an impartial third party assists participants in resolving a dispute”.

4. Addition of undefined technical advisory committee, raises questions

The addition of a technical advisory committee is unexpected. The membership and mandate of the technical advisory committee is very unclear:

“The membership and mandate of the advisory committee will be public, and the mandate will include providing specialized information and technical advice to the CORE relating to the exercise of the CORE’s mandate.”

This raises several significant questions and concerns. Who will sit on the advisory committee? How will conflict of interest be addressed? Will the advisory committee be privy to confidential information? Will the advisory committee be included in decisions on admissibility of complaints, the making of recommendations, and/or the making of findings of fact?

5. Omission in detail on whose views informed the consultation?

In the introduction at section 3.1 you indicate that:

“The CORE developed these Operating Procedures (“the Procedures”) independently with input from stakeholders, practitioners, organizations that represent the interests of impacted individuals and communities, and other experts.”

It is our understanding that CORE has received input from industry associations and individual companies in the elaboration of these Operating Procedures. This should be listed at 3.1.

Many civil society questions and concerns go unanswered, further undermining confidence in the process

This is the third submission from the Canadian Network for Corporate Accountability (CNCA) on various iterations of the Canadian Ombudsperson for Responsible Enterprise’s (CORE) draft Standard Operating Procedures (SOPs). To date, we have not received 1) any detailed response on how our feedback has been incorporated, 2) direct answers to any of the questions we have raised, nor 3) any explanation when our feedback has been ignored.

CNCA has also provided extensive feedback on the CORE’s draft Guidance to Complainants. CNCA has had no detailed response to how and whether our feedback will be acted upon, nor have we seen a revised version of the Guidance.

For example, following are the unanswered questions and recommendations in our response to the March 2020 version of the CORE SOPs:

• A blanket discretion to refuse to review meritorious complaints is neither necessary nor justifiable.
• One omission in the CORE’s current draft standard operating procedures relates to the CORE’s ability to make a broad range of recommendations to the Government of Canada.
• Another omission is detail relating to CORE-initiated reviews. The CORE should develop protocols for CORE-initiated reviews, in particular those involving in-country and project or factory site visits.
• How will CORE strive to balance power as it commits to do in the section on dispute resolution? On this issue, see our feedback to the guidance for complainants.
• What is meant by a “flexible approach” in moving between dispute resolution and a review process? Specifically, it must be made clear that FPIC will be secured from vulnerable communities and other complainants to move their complaint from a review process to a dispute resolution process.
• To what extent can confidentiality and anonymity be guaranteed? What measures and protocols will the CORE and its staff implement to enhance these guarantees for vulnerable community complainants?
• What consequences are envisioned for those companies who are found to engage in retaliation or reprisals but who do not receive Export Development Canada (EDC) or trade commissioner service support or financing? The CORE should also examine its language around future EDC financial support. The language currently appears to exaggerate the consequence of a CORE recommendation, since without changes to the Export Development Act, there is no guarantee a CORE recommendation will be followed.
• Why will the CORE notify companies of a complaint that the CORE decides to reject and does not review? Why will the CORE notify companies before starting its initial assessment?
• Why will the CORE not directly monitor implementation of the terms of the settlement and instead only possibly assist in monitoring the implementation?
• Why are remedies limited to those specifically mentioned in the United Nations Guiding Principles on Business and Human Rights? This is an area in which the CORE should retain discretion, permitting it to recommend a remedy tailored to the needs of the situation.
• Why will the CORE always share information with the host country National Contact Point (NCP) and the Canadian NCP? This question is relevant given the lack of civil society confidence in the Canadian NCP, its failure to result in remedy for complainants, and its lack of independence from government (here in Canada and in many parts of the world). In fact, the inadequacies of the NCP in addressing corporate malfeasance are a large part of what ultimately led to the CORE being created. The CORE should minimize integration with the NCP, share only limited information, subject to the informed consent of the complainant(s), and ensure that complainants’ confidentiality and anonymity are guaranteed.

We have on several occasions noted with alarm that CORE’s belief that “… human rights are best realized through collaborative approaches…” is not a recognized international human rights approach.^[iv] We have recommended it be removed from the CORE’s materials. The latest revision to the  draft SOPs deleted the assertion, but it remains prominently on the CORE’s website in the “Our Approach” section: “The Office of the Canadian Ombudsperson for Responsible Enterprise (CORE) believes human rights are best realized through collaborative approaches such as information sharing, mediation, and joint fact-finding.”

Recommendations relating to consultations with civil society

As mentioned above, this is the third time that the CNCA has been formally asked to provide comment on the CORE’s draft SOPs. We have also provided input to the CORE’s Guidance to Complainants, and have been invited to make submissions to the CORE’s procedures on retaliation. To date, we have simply received a new PDF document that does not include any reference to what has been changed from the previous version we reviewed.

We offer the following:

• It would be very appreciated if the CORE could respond to the feedback that is provided by civil society prior to soliciting new feedback on revised versions. This could be done through a written response that explains what recommendations were incorporated and how, and why other recommendations were dismissed; this could be done through the publication of a “what we heard” document that outlines the feedback CORE has received from various sources; and / or it could be done by providing a track changes document that shows how the new document differs from what was previously reviewed.
• CORE should seek to coordinate with other government agencies on the timing of consultations with civil society relating to business and human rights issues. In the fall of 2020, there have been consultations on the CORE’s SOPs, the CORE’s retaliation policies, Canada’s Responsible Business Conduct Strategy, the National Contact Point and Export Development Canada. The deadlines for response to the CORE SOPs, Retaliation Policy and RBC strategy renewal fall within a week of each other. The time provided for feedback has been between 2 and 4 weeks. Had all of these consultations not coincided, this timing might have been adequate. As they did all coincide, it was impossible for CNCA to produce a comprehensive response that adequately reflects the input of our members and global partners, or that completely outlines our views on the policies, procedures and guidelines under review.

Canadian civil society operates with extremely limited resources. We thank you in advance for taking this into account in the future and making participation in consultation processes more accessible, meaningful and transparent.

ENDNOTES

[i] See, for example, the July 2020 letter from the CNCA here: http://cnca-rcrce.ca/wp-content/uploads/2020/07/CNCA-letter-to-CORE-re-spring-2020-consultations.pdf

^[ii] 12.8 If joint fact-finding is not possible or is limited, the Ombudsperson may use independent fact-finding. Independent fact-finding may include interviewing the parties, witnesses proposed by the parties and others, and inviting submissions from the parties.

12.9 The Ombudsperson may seek assistance with independent fact-finding including from experts and host country governments, carry out different types of research, conduct interviews, undertake country visits, and ask for submissions from industry associations, civil society organizations, and other interested persons.

^[iii] See for example the mandate of the United Nations Human Rights Council’s Independent Fact-Finding Mission to Libya at https://www.ohchr.org/EN/HRBodies/HRC/FFM_Libya/Pages/Index.aspx and the description of the Harkat Mission to Sudan (re Talisman) at https://www.hrw.org/reports/2003/sudan1103/23.htm.

^[iv] See, for example, the February 2020 letter from Alex Neve, Catherine Coumans and Emily Dwyer at http://cnca-rcrce.ca/wp-content/uploads/2020/05/Letter-to-CORE-Neve.-Dwyer.-Coumans-13.02.2020.pdf

NOTE

This post was originally titled “CNCA’s 3rd submission to CORE consultations” on 20 November 2020.

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