CANADA Trends and Developments Contributed by: Claudia Feldkamp and Chris Pigott, Fasken
In the absence of forward progress by the Cana - dian government in the near-to-mid term, man - datory human rights due diligence legislation may be advanced by way of a Senate public bill or a private members’ bill in the House of Commons. During the past several years, there have been several attempts to advance busi - ness and human rights-related legislative initia - tives through Senate and private members’ bills in the House of Commons. A Senate public bill can successfully become law – as demonstrated recently with Canada’s supply chain transparen - cy legislation, which started as a Senate public bill and ultimately obtained Royal Assent, com - ing into force on 1 January 2024. Such legislative initiatives can act as an impe - tus for the government to move forward more quickly with its own legislative initiative, particu - larly where there is sufficient political support and pressure from the stakeholder community. A key feature of business and human rights has been the coalescence of a broad range of stakeholders around business and human rights principles. Measures to strengthen enforcement of import ban With the impending CUSMA negotiations and informed by the recent 2024 consultations undertaken by the Canadian government on Canada’s import ban, there will be pressure on Canada to follow through with measures to strengthen its ban on imports of goods manu - factured in whole or in part using forced labour. One of the measures under consideration is the implementation of a reverse onus on the importer regarding “goods at risk” for forced labour; this would require the importer to rebut the presump - tion that the “goods at risk” were made using forced labour. Such a rebuttable presumption would likely be modelled on the US precedent
under the Uyghur Forced Labor Prevention Act and would significantly expand Canada’s forced labour regime and the due diligence and supply chain traceability requirements for businesses. Canada may also be influenced by the import ban in the EU. EU Regulation 2024/3015, which will be applicable as of 14 December 2027, prohibits economic operators from placing or making available on the EU market – or export - ing from it – any products made using forced labour. Although the EC will establish a data - base on forced labour to identify risks based on specific geographic areas or with regard to spe - cific products or product groups, the EU regula - tion does not create a reverse onus for “goods at risk” based on country of origin or nature of the goods. Of note, the EU regulation encour - ages co-operation with other countries, which remains critical to addressing forced labour in complex supply chains and may help mitigate against jurisdictional divergence on compliance and enforcement. As Canada considers measures to strengthen its import ban and step up enforcement, there will be increased pressure on businesses that have not already done so to undertake and docu - ment due diligence in relation to forced labour and child labour, in line with the expectations of the UNGPs – even in the absence of man - datory human rights due diligence legislation in Canada. Federal procurement policy Government procurement policy is another ave - nue Canada is increasingly using to encourage businesses to embed human rights due diligence in business practices. The Canadian federal gov - ernment’s central purchaser, Public Services and Procurement Canada (PSPC), has taken several steps to embed human rights expectations on its
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