URAP Statement on Trade Minister Ng’s Testimony at CIIT Committee

March 28, 2023

The Standing Committee on International Trade (CIIT) convened yesterday, on March 27, 2023, and Hon. MP Kyle Seeback questioned the Hon. Minister of Small Business, Export Promotion and International Trade Mary Ng about her previous testimony in the same committee in October, where she stated that she believed Canada has intercepted some shipments made with forced labour.

After filing an order to obtain accurate figures and learning that no shipments made with Uyghur forced labour have been seized apart from one in 2020 which was subsequently released, Seeback confronted Minister Ng.

The government’s response to its hesitancy in intercepting these goods has been that “Canadian law does not allow the designation of goods for importation as prohibited without evidence. Neither does it allow company or country-specific bans on goods made with forced labour.” This was stated by Parliamentary Secretary to the Minister of Public Safety Hon. Pam Damoff in the House on March 22.

The claim that evidence of Uyghur forced labour is required to intercept goods is important to dispute.

On July 1, 2020, the Government of Canada amended the Schedule to the Customs Tariff to prohibit the importation to Canada of “Goods mined, manufactured or produced wholly or in part by forced labour,” keeping in line with its obligations pursuant to the Canada-U.S.-Mexico Agreement. As of that date, goods of this description are to be classified under tariff item 9897.00.00.

CBSA does not need to be certain that goods were produced in part by forced labour in order to classify them under tariff item 9897.00.00. Rather, tariff classification decisions should be made by CBSA on a balance of probabilities which is the standard that is applied by the Canadian International Trade Tribunal (“CITT”) on appeal. It is also explicitly stated in Section 15 of the Customs Act that anyone who finds or has goods in their possession and who “believes on reasonable grounds” that the importation of those goods may be prohibited, must “forthwith” report those goods to an officer. In more practical terms, it is sufficient as evidence to simply demonstrate that is it more likely than not that the goods in question were produced wholly or in part by forced labour.

Balance of probabilities is the standard applicable in most non-criminal proceedings in Canada, and is clarified in a leading case from the Supreme Court of Canada, F.H. v. McDougall. Canadian administrative tribunals and boards also consistently apply this civil standard in human rights, tax, labour/employment, immigration/refugee, and competition/economic contexts.

The Canadian government has been meeting this standard with regards to goods produced with forced labour. Their own report on supply chain risks lists tomatoes, for example, as a product for which “there is a high probability of being produced wholly or in part by non-voluntary Uyghur workers.” Yet, shipments of tomatoes, and other products listed, are still entering Canada unprohibited.

In addition to her statements on the legality of preventing these shipments, MP. Damoff stated that data importers have to legally submit to the CBSA does not provide full traceability through the importer’s supply chain, and so CBSA cannot confirm there have not been shipments of imported goods linked to companies on the U.S. Uyghur Forced Labour Prevention Act (UFLPA) Entity List.

So, responses to this topic have ranged from denial of a problem, to limitations in Canadian law, to lack of access to information. Presently, it seems the Canadian government is unable to answer these important questions about who bears the responsibility to prevent products made with the use of forced labour from entering our markets. And we are continuing to witness government support for weak legislation, like Bill S-211, that does not seek to address any of these problems.

As other governments are making strides in addressing goods produced by the use of Uyghur forced labour, Canada is falling behind.

Parliamentary committees such as SDIR and FAAE, Global Affairs Canada as well as impartial institutions have already concluded that the use of Uyghur forced labour by the People’s Republic of China is widespread and touches virtually every sector, including apparel, mining, electronics, solar panels, vinyl, tomatoes, dried fruit and many others.

URAP urges the government of Canada to enforce existing legal and administrative tools to intercept and seize products made with the use of Uyghur forced labour. It is time for meaningful action.