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Results: 1 - 15 of 108
View Alexis Brunelle-Duceppe Profile
BQ (QC)
Okay, but you told us earlier that the problem was that the complaints were voluntary. So if someone wants to file a complaint, the necessary process requires that they put themself at risk to go to the NCP authority, since it's voluntary. It's the same problem with the ombudsman, in our view, and from what we've heard since the study began.
So do you think that investigative powers could enhance the work of the NCP and the ombudsman?
Chris Moran
View Chris Moran Profile
Chris Moran
2021-04-27 18:55
Mr. Chair, I would refer to Minister Ng's comments at the committee on March 23, when the minister did indicate that she believes the Canadian ombudsperson does have the tools and instruments she needs to be an effective mechanism.
View Tracy Gray Profile
CPC (BC)
At a previous meeting of this subcommittee, the Chamber of Commerce testified about the extraterritorial issues and the difficulty in compelling testimony from subcontractors abroad. In some jurisdictions it would be a difficult proposition.
Will the CORE be able to compel these subcontractors, or is it still the case that these might fall through the cracks?
Chris Moran
View Chris Moran Profile
Chris Moran
2021-04-27 19:12
The CORE is a voluntary mechanism. She will be working with Canadian companies. There is an expectation and a commitment from Canadian companies that they will work with her in good faith.
Pierre Gratton
View Pierre Gratton Profile
Pierre Gratton
2021-04-20 19:58
Thank you.
Canadian mining has a significant international presence, as Lisa just mentioned, with 650 companies in almost 100 countries. However, we are no longer the world's top mining country. Indeed, Australia's two biggest companies exceed the net asset value of the entire Canadian industry, while China's control of the production of many mineral commodities is well known.
However, Canada's role as a global leader in sustainable mining and responsible business practices continues to grow. Central to this work is a program that's been mentioned already, our towards sustainable mining initiative, a globally recognized tool for driving responsible behaviour in our sector. Other countries have taken note of our leadership, and this program is now in the process of being implemented in Finland, Norway, Spain, Botswana, Brazil, Argentina, the Philippines and Australia. We spoke to the Colombians just this morning, and they intend to do the same.
Turning now to the CORE, a central focus has been on the CORE's powers, specifically whether the power to compel evidence and testimony would make for a more effective office. We believe that such an approach, while seemingly strong, would more likely lead to undesirable outcomes for all parties. We have based this belief on the experience and advice of professionals who have worked in this field, such as Meg Taylor, former World Bank compliance adviser/ombudsman, or the CAO.
In the first 10-year review report published by the CAO, Ms. Taylor found that every party wanted a quick judgment but would only accept the findings if the CAO said that they were right. When a judgment was made, such as in the case of the Marlin mine in Guatemala, the CAO was drawn into the conflict, losing its status as a neutral party. The end result was that the cycle of conflict continued. Ms. Taylor further found that her mechanism was much more effective if it focused on how to change the dynamics of the conflict rather than imposing judgment.
If one's interest is to reduce conflicts, we believe joint fact-finding and other collaborative approaches will be more effective. We have long supported the use of penalties, such as the withdrawal of trade commissioner support or access to government financial support, should companies not co-operate in these circumstances.
We believe an ombudsperson with the powers to compel would lead all parties to lawyer up and disputes to be more protracted and conflictual. There are also issues of extraterritoriality that have never been honestly aired or considered.
A few years ago, former minister Jim Carr asked Barbara McIsaac to advise on whether the office as currently constituted had the power to compel, and if not, what would be required to provide such powers.
During the last several weeks of this study, the legal advice provided by Ms. McIsaac has been raised several times and has been characterized as strongly supporting the granting of such powers, but this is simply not accurate.
Ms. McIsaac clearly states that whether the CORE should have these powers is a question of policy, while her mandate was to assess whether the powers could be granted and what implications that might have.
Ms. McIsaac also states that she was struck by the fact that there was a “consistent view”—between NGOs and industry—“that the most important consideration should be that, at the end of the day, the process...should result in real change on the ground.... They differed on how that would best be achieved.”
Ms. McIsaac says that without a way to compel, the CORE's effectiveness may be compromised, but goes on to say, “On the other hand a process which includes powers to compel runs the risk of becoming overly confrontational and caught up in procedural wrangling and court challenges.”
Finally, she observes that there is no way to overcome the extraterritorial limitations of these powers. They could not be used to compel evidence and testimony of local communities, independent suppliers and contractors or state actors. The recent recommendation by this committee to increase the powers of the CORE in the context of supply chains into China makes me wonder how the ombudsperson would obtain the evidence of Chinese nationals to determine the existence of forced labour in the manufacturing of garments and appliances by Canadian companies.
The office should be given a chance to demonstrate whether it can be effective. If further changes are to be considered, they should be done via a transparent process that allows all stakeholders to equally express their views, with equal opportunity to consider proposed government policy options, including legal opinions.
Finally, there has been much talk about the sectors the CORE applies to. Global Affairs Canada is establishing a new responsible business conduct strategy that recognizes the need to expand these kinds of mechanisms to all Canadian businesses operating abroad.
The subcommittee's report on the human rights situation of the Uighurs supports this because, of the three sectors under the CORE's mandate—mining, oil and gas, and garments—only Canadian garment companies have a presence in the region. However, other Canadian businesses from sectors outside the CORE are present, such as those that sell household appliances or those in the solar and renewable energy sectors.
Thank you. We look forward to your questions.
View John McKay Profile
Lib. (ON)
Thank you, Chair, and thank you to all the witnesses this evening.
Let's go to the core issue—pun intended—and the core issue is whether the ombudsperson will have the ability to compel witnesses and documents.
The position of MAC, PDAC and others seems to be that if those powers are not available, somehow or another the investigation will be improved, that the ombudsperson conducting any investigation will somehow or another have a more useful and a more able investigation without these powers. It seems to me that's a logical contradiction. It's also an experiential contradiction, because no court process is effective and no quasi court process is effective unless there lurks in the background the ability to compel documents and compel witnesses to co-operate. It's a little like posting a speed sign on Highway 401 and having no ability to enforce the speed limit.
I'll start with Mr. Gratton, because he and I have been at this for quite a while.
Why is it, therefore, that PDAC and MAC somehow or another believe that the CORE will be more effective in her investigations without these powers than with these powers?
Pierre Gratton
View Pierre Gratton Profile
Pierre Gratton
2021-04-20 20:05
Well, John, I've also given you this answer before, but I can do it again. I also gave it in my testimony.
First of all, you describe a court process. We don't see this as a court process.
There are courts, and people have access to courts, and there are rules that courts follow that are more expensive and more protracted, but things like due process are guaranteed in the court process. This is not that. This is something else. This is, as we have understood it to be, a model for mediation, for joint fact-finding and for bringing the parties together to resolve disputes and conflicts. For very serious crimes, that's where the law comes in. This is something different.
That's why, in our minds, if you're trying to reduce conflicts in something that's of a non-criminal nature, you want to try to bring the parties together. You want to try, and you do that through an impartial process that the ombudsperson negotiates. As I said before in my testimony, we're relying on the experience of those who have done this before and who have found that when they went down the road you're proposing, the results weren't what they had hoped them to be. They actually found that they made the conflicts worse, and that the collaborative approach was better.
View John McKay Profile
Lib. (ON)
Pierre, with the greatest respect, not all parties are equally willing. In fact, some parties will be quite reluctant to engage in any process, whether it's mediation, conciliation or anything resembling a meeting of minds. However, their willingness to engage might well be enhanced if in fact the CORE, the ombudsperson, had the ability—and that ability was lurking in the background—to say “we can compel both documents and testimony”.
In fact, you have described a variety of situations where the evidence will be extraterritorial. I agree. It will be sometimes less than optimum. I agree. Why would we allow a process to develop that will be necessarily less than optimum in a situation that will always—always—be extraterritorial and be fraught with difficulties and conflicts?
Pierre Gratton
View Pierre Gratton Profile
Pierre Gratton
2021-04-20 20:08
Unless I misunderstood you, I think you just supported my position.
Pierre Gratton
View Pierre Gratton Profile
Pierre Gratton
2021-04-20 20:08
What you're saying is that, if it's extraterritorial, then it's fraught with these types of difficulties, and that's been our point. It's very hard to do a proper assessment using the powers of compelling testimony and witnesses.
View John McKay Profile
Lib. (ON)
Why wouldn't you have the ability to compel testimony and witnesses in situations that are fraught with difficulties?
Pierre Gratton
View Pierre Gratton Profile
Pierre Gratton
2021-04-20 20:09
Well, you just raised the extraterritorial issue. That's why I'm confused by what you're saying.
Pierre Gratton
View Pierre Gratton Profile
Pierre Gratton
2021-04-20 20:09
If you're trying to uncover what happened in a particular part of the world that is not Canada—say it's the Philippines, say it's Peru or say it's Colombia—and you want to find out what happened and you need to compel the testimony of non-Canadians, I don't think you're going to be able to do that.
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