In early December 2018, Liberal MP John McKay tabled Bill C-423. The private member’s bill, if passed, will come into force on January 1, 2020. The bill’s short title is the Modern Slavery Act which aligns with naming nomenclatures of similar frameworks in other jurisdictions, including the UK and Australia. Hong Kong proposed a similar framework in mid-2018 with its backers relying on the US Trafficking in Persons grading scheme for their support. It should be noted that the UK attempted to include references to prostitution in its framework but these references were later dropped.
In brief, Canada’s version of the Modern Slavery Act would require certain entities who meet specific thresholds to report on their efforts to prevent or reduce the risk that forced labour or child labour is used at any step in, more or less, their supply chain. An entity means a corporation or a trust, partnership or other unincorporated organization:
that is listed on a stock exchange in Canada;
that has a place of business in Canada, does business in Canada or has assets in Canada and that, based on its consolidated financial statements, meets at least two of the following conditions for at least one of its two most recent financial years: has at least $20 million in assets; has generated at least $40 million in revenues; or employs an average of at least 250 employees; or,
that is prescribed by regulations (which have, obviously, yet to be determined).
Such reports would be produced by May 31 of each year to the designated minister if it is not the Minister of Public Safety and Preparedness. The reports must also be made available on the entity’s public facing website. The reports must include the following information:
The entity’s steps during the previous year to prevent and reduce the risk that forced labour or child labour is used, more or less, at any step of their supply chain;
The entity’s structure and the goods that it manufactures, produces, grows, extracts or processes in Canada or elsewhere or that it imports into Canada;
The entity’s policies in relation to forced labour and child labour;
The entity’s activities that carry a risk of forced labour or child labour being used and the steps it has taken to assess and manage that risk;
The steps taken by the entity to remediate any forced labour or child labour;
The training provided to employees on forced labour and child labour; and
The attestation of a director or officer of the entity that the information in the report is true, accurate and complete.
Every person or entity that fails to produce a report or make the report available on its website, refuses to assist a designated person with inspection, obstructs or hinders same, or refuses to comply with ministerial measures for failing to produce a report or make same available is guilty of an offence punishable on summary conviction and liable to a fine of not more than $250,000. The bill in its first reading provides for other offences.
While this is all good, the concerning parts about the bill is the absence of clear definitions. For example, there is no definition of modern slavery. The bill seems to align with global efforts to adopt universal efforts to end modern slavery but without any oversight as to what modern slavery is or entails.
Forced labour means “labour or service provided, or offered to be provided, by a person under circumstances that could reasonably be expected to cause the person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.”
Child labour means “labour or service provided, or offered to be provided, in Canada by children under circumstances that are contrary to the laws applicable in Canada or provided or offered outside Canada under circumstances that, if provided or offered in Canada, would be contrary to the laws applicable in Canada.”
The bill also does not distinguish between human trafficking or human smuggling, and seems to adopt the US-approach to modern slavery which assumes that human trafficking is also sex trafficking. In the US, where prostitution, or sex trafficking, is heavily criminalized, human trafficking victims rarely, if ever, receive the kind of support that proponents of criminalization of prostitution expect. In other words, the bill assumes forced labour to include prostitution and as a result, it will likely cause more confusion when trying to enforce such laws at-home or abroad due to absence of clear definitions.
Disclaimer: This post does not contain legal advice and should not be interpreted as such. Only your own lawyer can provide such advice. Naomi does not give legal advice, except to her employer. The views expressed are Naomi's own views and do not represent her employer's views.