Memorandum: Canadian Inaction on Forced Labour as a Potential Loopholeto the United States’ Uyghur Forced Labour Prevention Act (UFLPA)

May 2

Written By Miri Teich

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THE UNITED STATES’ UFLPA

The United States passed the UFLPA, which went into effect on Tuesday, June 21, 2022. The

UFLPA established a presumption that “any goods, articles mined, produced, or manufactured

wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China”

and all products of forced labour “are not entitled to entry to the United States.” The importer must

demonstrate to the U.S. Custom and Border Protection (CBP) tantamount evidence to prove

otherwise to be allowed in.

The CBP has been taking strong action even prior to the entry into force of the UFLPA. Over the

last two years, the CBP has seized more than 1,300 shipments from China that are believed to have

been made using forced labour.1

CANADA’S INACTION

In contrast, Canada has seized only one shipment from China believed to have been made using

forced labour – and that one seized shipment was ultimately released.

Canada Border Services Agency (CBSA) does not have the capacity to effectively prevent goods

made using forced labour from entering the country.2 A presumptive ban of the type that the United

States now has in place would assist with this problem, because presently, CBSA has taken the

position that they must investigate shipments on an individual basis, and they have placed the onus

on themselves, rather than on the importer, to obtain evidence that an individual shipment from

Xinjiang (East Turkestan) is produced using forced labour.3

Legislation has been proposed in Canada to remedy this, but of the four forced labour bills

proposed, the Government of Canada is only supporting the weakest proposals.

1 See: https://www.theglobeandmail.com/politics/article-canadas-forced-labour-import-interception-lags/.

2 Ibid.

3 In a recent court case heard by the Federal Court of Canada, the Hon. David Kilgour et al. argued that this method

is improper, that the onus can and should be placed on the importer, and that instituting a rebuttable presumption is

something that the CBSA can presently do pursuant to the existing provisions of the Customs Act and the Customs

Tariff. URAP intervened in the case. The CBSA took the position that they could not institute a rebuttable

presumption absent legislative change. The court sided with CBSA. The case is currently under appeal.

Bill S-204, introduced by Senator Leo Housakos, would amend the Customs Tariff to prohibit the

importation of any and all goods produced in the Uyghur region on the basis that they are produced

using Uyghur forced labour. Based on present wording of Bill S-204, it would not impose a

rebuttable presumption, but rather an outright ban (i.e., the importer would not have the chance to

provide evidence that its goods are not produced using forced labour). However, based on our

discussions with Senator Housakos, we believe he would be willing to adjust this so that the bill

mirrors the UFLPA and imposes only a rebuttable presumption and not an outright ban. Bill S-204

does not presently have the support of the Canadian government. Based on present levels of

support, it is not likely to become law.

Bill C-262, introduced by Peter Julian, would impose corporate accountability for adverse impacts

on human rights occurring in relation to business activities conducted abroad. In comparison to

Bills S-211 and C-243 (discussed below), Bill C-262 has teeth in the sense that it imposes

responsibility and liability on corporations. Bill C-262 does not presently have the support of the

Canadian government.

Bills S-211 and Bill C-243 –which are nearly identical to each other– are not Uyghur-specific but

would generally impose reporting obligations on government institutions and private-sector

entities to “report on the measures taken to prevent and reduce the risk that forced labour or child

labour is used [in their supply chains]”. If passed, these bills are unlikely to do much to ensure that

forced labour goods do not enter Canadian markets. These bills do have Canadian government

support.

CANADA’S INACTION AS UFLPA LOOPHOLE

It is in the United States’ interest that Canada takes stronger action. As discussed, of the four bills

on forced labour recently proposed in Canada, two are general reporting bills that are quite weak,

and the other two that are stronger do not have government support from the Liberals. Especially

as the UFLPA is now in force in the United States, there is a serious risk that Canada will

become a dumping ground for forced labour products that can no longer enter the United

States directly. There is also a serious risk that if Canada does not take effective action on

this issue, forced labour goods will simply reroute to Canada and then reach United States’

markets via the U.S.-Canada land border. The UFLPA guidance is silent on this issue.

UYGHUR RIGHTS ADVOCACY PROJECT NEEDS ASSISTANCE

Uyghur Rights Advocacy Project (URAP) is a Canadian-based non-profit organization advocating

on behalf of the Uyghur community in Canada. URAP has been successful over many years in

building cross-party consensus on Uyghur issues4, and is presently advocating for the Canadian

government to take strong legislative action on forced labour. URAP would greatly benefit from

the United States’ assistance in these efforts. Among other things, we ask that the United States

officials raise this issue in bilateral discussions with their Canadian counterparts.

4 Successes include: the building of a Uyghur parliamentary friendship group; Canada’s recent commitment to

welcome 10,000 Uyghur refugees; and the hearing conducted by the Subcommittee on International Human Rights

in 2020 and the subsequent parliamentary motion recognizing the Uyghur genocide.