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25 Oct 2017

Geneviève Paul & Lori Waller, Above Ground and Heather Cohen, International Corporate Accountability Roundtable (ICAR)

Bringing Responsibility Home & Engaging Canada on Business & Human Rights

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As we reported in a recent post, last month legislators and experts from Canada, the United States and Europe gathered in the Canadian capital to discuss groundbreaking developments in home state legislative initiatives aimed at protecting human rights from corporate abuse. Organized by Above Ground and the International Corporate Accountability Roundtable (ICAR), the Bringing Responsibility Home symposium was hosted by members of Parliament from Canada’s major political parties and by two senators. Nearly 150 participants from government, law, business, academia and civil society attended. They explored how Canada, which will soon take on the G7 presidency, can become a leader in international efforts to ensure corporate respect for human rights.

This post provides a summary of the discussion.

A call to action

The event began with two keynote speakers, both of whom called on Canada to take more decisive action on business and human rights. Professor John Ruggie, author of the United Nations Guiding Principles on Business and Human Rights (UNGPs), noted that “Canada no longer enjoys the leadership in the business and human rights space that it once did." Emphasizing the role of home states in addressing companies’ human rights impacts abroad, he asked: “What message do we want to send to victims of severe abuse in host countries where no reasonable person can claim that justice will be provided?”

While Professor Ruggie focused on Pillar I of the UNGPs, Ian Binnie, a former Justice of the Supreme Court of Canada, spoke about Pillar III, highlighting the “formidable barriers” victims often face when seeking remedies in their host countries. He argued that Canada, as a home state, must do more to ensure that victims receive justice. Mr. Binnie noted that the law in its current form provides many tools for courts to hold corporations accountable for human rights abuses. He argued in favor of the judicial application of the theory of “enterprise risk,” which embeds civil liability for human rights abuses throughout a corporation’s entire structure, and for criminal accountability, explaining that “prosecution can be a very powerful deterrent against corporate abuse.”

The symposium proceeded with panels looking in depth at developments in home state regulation of corporate activities affecting human rights abroad and the prosecution of corporate human rights violations under criminal law. Finally it circled back to the Canadian context with a roundtable focused on Canada’s next steps.

Towards civil liability

Europe is moving forward with initiatives aimed at holding parent companies responsible for preventable harms associated with their operations and those of their subsidiaries and suppliers overseas. France has led the way, with legislation adopted in February of this year that requires large companies to adopt due diligence plans for their global operations and supply chains. Failure to implement such plans could lead to civil liability. Dominique Potier, the member of the French National Assembly who championed the law, called on Canada to follow France’s lead. “In a few years, people will ask why we did not take action,” he said. “We will be judged for having done abroad what we would not let happen in our own countries.”

Business ethics professor Florian Wettstein described the Swiss Responsible Business Initiative, a civil society initiative that, if successful, would also create civil liability for companies in Switzerland. Pointing out that the initiative has now gained significant popular support, he said: “Never doubt the power of citizen mobilization. People need to believe that this initiative has a chance to succeed and that every vote counts."

Erin Simpson, a Canadian lawyer collaborating with Above Ground on parent company accountability, rounded out the panel by discussing what a Canadian version of the French and Swiss laws might look like. She argued that there are no legal impediments preventing Canada from adopting such legislation.

What criminal law can offer

Experts also advocated for stronger leadership and greater transparency in the use of criminal law to address corporate wrongdoing. Seema Joshi, Head of Business and Human Rights at Amnesty International, provided concrete examples of credible allegations of criminal wrongdoing by Canadian companies that have never resulted in prosecution. Some of the obstacles to prosecuting corporate crimes were outlined by two panelists with extensive professional experience in the field: Peter German, former Deputy Commissioner of the Royal Canadian Mounted Police, and Luis C. deBaca, former U.S. Ambassador to Monitor and Combat Trafficking in Persons. These obstacles include legal challenges, such as the mens rea requirement, and practical ones, such as lack of resources. Ms. Joshi explained that the Corporate Crimes Principles provide interesting solutions to some of these obstacles and can be a powerful tool for prosecutors.

Focusing on the Canadian criminal context, there was general agreement amongst panelists and audience members that there needs to be more transparency surrounding decisions on whether or not to prosecute a particular case. For instance, despite formal calls for the prosecution of Anvil Mining in 2004 and despite this year’s decision of the African Commission calling for an investigation, there is no public indication that a criminal investigation has been opened in Canada. To improve its transparency, Canada should look to other common law jurisdictions, such as India and the United Kingdom, where a decision not to pursue a criminal case can be subject to judicial review.

Bringing responsibility home through legislation

Finally, key Canadian representatives from government, law, businesses, academia and civil society gathered in a multi-stakeholder panel to debate Canada’s next steps. Madelaine Drohan, the Canadian correspondent to The Economist, challenged panelists to address the need for and avenues towards policy and legislative reform. Duane McMullen, Director General of trade operations at Global Affairs Canada, indicated that consensus among stakeholders would be required for reforms to take place, to avoid a “polarization between industry and civil society.” Mr. McMullen stated that the government is “using aggressively the tools” in Canada’s existing CSR strategy.

Alex Neve, Secretary General of Amnesty International Canada, strongly disagreed with this position, criticizing both the government’s strategy and its implementation. He pointed to the urgency of the situation and the documented ineffectiveness of the two dispute resolution mechanisms referred to in the CSR strategy. He also reminded the audience that various United Nations treaty bodies and, more recently, the United Nations Working Group on Business and Human Rights have called on Canada to take action.

Referencing empirical research on the limitations of corporate self-regulation, University of Ottawa professor Penelope Simons called for the swift adoption of legislative measures such as those recommended by UN treaty bodies, arguing that “it would be absurd to wait for criminals to agree before adopting criminal legislation.” Mr. Neve agreed with Professor Simons, pointing out that “we’d never accept voluntarism in other human rights domains.”

Offering the investor perspective, Kevin Thomas, Director for Stakeholder Engagement at SHARE, affirmed that “there is no need for consensus to legislate. It’s the whole point of leadership. In fact, legislation creates a level playing field and allows investors to effectively compare companies.” Andrew Cheatle, President of the Prospectors and Developers Association of Canada, confirmed the association’s willingness to “collaborate on future legislation.” Meanwhile Brian Burkett, a lawyer at the firm Fasken Martineau, encouraged a creative approach, as has been seen in the development of international framework agreements between global unions and industry.

Next steps for Canada

The symposium demonstrated cross-sector interest in home state regulation of corporations and enthusiasm for Canadian leadership in this area. It came at an opportune time; just before the symposium took place, Canada’s prime minister addressed the United Nations General Assembly, making a firm commitment to promote respect for human rights, especially the rights of indigenous peoples and women. These groups are disproportionately impacted by Canadian extractive companies operating abroad. It is time for Canada’s leaders to transform words into much needed action. As John Ruggie noted, “the world needs Canada to be fully engaged” on business and human rights.