Due to poverty, children under the age of 13 in Guatemala are forced to work 8 to 10 hours in coffee and vegetable farming every day and are unable to attend school. Much of what they produce is exported to other countries like Canada.
Due to poverty, children under the age of 13 in Guatemala are forced to work 8 to 10 hours in coffee and vegetable farming every day and are unable to attend school. Much of what they produce is exported to other countries like Canada.
Canada may be finally one step closer to addressing problems of forced and child labour in corporate supply chains. Recently, the government signalled its support of Bill S-211, which requires companies to annually report on the steps they have taken to prevent and reduce the risk of forced or child labour taking place in their supply chains.
The bill has made it through the Senate and a second reading in the Commons, suggesting that its chances of becoming law are strong. It is therefore unfortunate that even if Bill S-211 becomes law it will do little to address problems of forced or child labour in supply chains of Canadian companies.
This is because the bill, in its current state, is essentially a copy of the U.K.’s Modern Slavery Act, which has proved to be ineffective.
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When it was first introduced in 2015, the Modern Slavery Act was thought of as groundbreaking. It raised corporate awareness of modern slavery issues and drove some companies and investors to seek ways to eradicate these labour problems. Yet, studies have found that, ultimately, the act did not result in systemic changes to corporate behaviour to eradicate labour problems, even in high risk areas.
Similarly, in its report, the U.K. Financial Regulatory Council concluded that corporate reporting under the Modern Slavery Act was insufficient and inadequate and that the act had not enabled modern slavery issues to become a concern in many boardrooms.
In part, the failure of the Modern Slavery Act to drive systemic changes in corporate behaviour is because it focuses only on reporting requirements, not on actually eradicating forced or child labour from supply chains. Bill S-211 contains this same flaw, only holding companies accountable for failing to report on their supply chain practices.
The bill also does not contain a mechanism to verify the accuracy or quality of the reporting. As a result, the bill could give rise to a scenario in which a Canadian company employs child labour in its supply chain, as a result of only taking minimal or insufficient steps to prevent such abuse, yet not be held accountable as long as it duly reports on the steps it took.
A better approach would be to introduce laws that adopt a “failure to prevent” model. Under such a model, companies would be held accountable if they failed to prevent forced or child labour in their supply chains, subject to a due diligence defence. That is, if there was evidence of forced or child labour in a company’s supply chain, it would be considered to have breached the law, unless it could demonstrate that it was duly diligent in taking all reasonable steps to prevent the harm from occurring.
The “failure to prevent” model is already used by some countries in their bribery laws. In France, such an approach forms part of its Devoir de Vigilance law, which seeks to hold companies liable for human rights and environmental harms. France has already initiated an action against French multinational, Total, under this law.
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The French law also raises questions about the scope of corporate accountability. Both the French law, and numerous other governments — including Germany, Japan, Norway, and the European Union, among others — have introduced, or are introducing, due diligence legislation that holds corporations accountable for both human rights and environmental harms.
With such a movement for broader corporate accountability underway around the globe, it is curious why the government is myopically focused only on addressing labour issues. One wonders if this is an attempt to make up for its failure to adhere to its commitment under the renegotiated NAFTA Agreement (now known as CUSMA) to prohibit the importation of forced-labour goods.
In any case, if the government is truly committed to ensuring that Canadian businesses do not contribute to human rights harms, it needs to look beyond Bill S-211, as is currently drafted. Both the due diligence laws in France and elsewhere, as well as circulating private members’ bills, provide opportunities for creating more potent corporate accountability legislation that will help vulnerable people and partially restore Canada’s reputation as a human rights defender.
Barnali Choudhury is a professor of Law at Osgoode Hall Law School and director of the Nathanson Centre on Transnational Human Rights, Crime & Security.
Opinion articles are based on the author’s interpretations and judgments of facts, data and events. More details
