Two Shipments in Six Years
Canada told the United States it has a robust framework. Canada has stopped two shipments. Maybe one. Nobody can say for certain, including the agency that stopped them.
Prof. Barry Appleton | July 13, 2026 | about a 16 minute read
Two Shipments in Six Years
Canada told the United States it has a robust framework to protect against forced labour imports into Canada. Canada has stopped two shipments. Maybe one. Nobody can say for certain, including the agency that stopped them.
Prof. Barry Appleton | July 13, 2026 | Appleton’s Clause & Effect Substack
This is the second of two pieces on the Section 301 forced labour proceeding. The first, Canada Was Never Asked, ran on Saturday. My written comments in the docket are Ratification Buys Nothing and No Duty Should Do the Same Work Twice. I file rebuttal comments with the United States Trade Representative on 16 July.
TL;DR: In its two-page filing to the United States Trade Representative, the Government of Canada described its forced labour import regime as a “robust framework.” Since the prohibition came into force in 2020, two shipments have been publicly reported as blocked. Over a comparable period, United States Customs stopped 42,807. And in November 2025 the CBSA official who runs the program told a House of Commons committee that one of Canada’s two determinations was overturned on appeal, then gave the committee a corrected tally whose components do not add up to the total he had just given. On July 16, I file rebuttal comments arguing that the American action against Canada is unlawful, and I mean every word of it. Both things are true, and this essay is about why that is not a contradiction. The tariff will not fix Canada’s enforcement, because a tariff cannot. Only Parliament can, and the bill now before it drops child labour out of the import prohibition on royal assent, extinguishes appeals importers have already filed, creates a listing power with no duty to disclose how it is used, and defers the one provision with teeth to an order in council that may never come. Parliament has since risen. It returns on September 21. Washington is wrong about the law. Ottawa is wrong about the work.
The word
Canada’s entire submission to the Section 301 proceeding runs to two pages. It contains this sentence:
“Canada has established a robust framework to prevent goods produced with forced labour from entering the Canadian market.”1
Robust.
Since the prohibition entered into force on July 1, 2020, the number of shipments publicly reported as blocked under it is two. In the same period, United States Customs and Border Protection stopped 42,807 shipments under the Uyghur Forced Labor Prevention Act, on its own published dashboard.2 The order of magnitude is the point, and the order of magnitude is not in dispute.
Two.
Except that is not quite the number either, and the reason it is not is the most important thing in this essay.
What the CBSA told Parliament
On 27 November 2025, Alexander Lawton, the Executive Director of the Canadian Border Security Agency’s (CBSA) Commercial Programs Directorate, appeared before the Standing Committee on International Trade. He is the official who runs the program. Asked for the figures about seizures of forced labour imports, he said this:
“As of November 2025, so as of this month, there have been 48 detentions. Two have resulted in fined determinations of forced labour. One of those determinations was later, on appeal, overturned, essentially. In addition, there were 33 shipments that were released following information provided by the importers.” 3
He then continued: of the other eight shipments, and he added the words “hopefully my numbers are correct,” seven were re-exported and the remainder abandoned and destroyed.
A member of Parliamant put the arithmetic back to him. Lawton corrected himself on the record:
“That’s correct. I’m sorry. I may have misspoken. Thirty-seven were released; two were prohibited; seven were re-exported, and one was abandoned.” 4
Thirty-seven, plus two, plus seven, plus one, is 47. He had said 48.
Now set that beside everything else on the public record.
In September 2025, an answer tabled on the Order Paper put the total at 34 shipments detained, 33 released, and one actually held. That answer was read into the same committee, to the same official, two months before he said 48.5
In March 2026 the CBSA told the Globe and Mail that two shipments were ultimately blocked: textile products in 2024 and frozen seafood in 2025, both from China. That statement makes no mention of any appeal, and no mention of any reversal. 6
The United States Trade Representative says roughly 50 detained and two denied entry, and builds a tariff on it.7
Thirty-four. Forty-seven. Forty-eight. Fifty. Two blocked, or two of which one came back.
Above Ground, the Canadian human rights organization that has followed this prohibition since before it existed, has written to the CBSA asking it to reconcile these figures. It has received no reply.8
This is what should trouble Parliament, and it is not that the number is small. It is that nobody can say what the number is. Including the agency that produced it.
So how many times has Canada’s forced labour import prohibition actually held?
It may be twice. It may be once. If the official who runs the program is right that one of the two determinations was overturned on appeal, then in six years Canada’s absolute prohibition on the importation of goods made with forced labour has successfully prohibited one shipment.
And I want to be careful here, because this cuts in a direction some readers will not expect. The lower number does not help Canada. It is worse. I am keeping two in the headline because two is the charitable figure, two is the figure the government has not contested, and two is the figure I will hold Ottawa to.
“The ban is absolute”
At that same November hearing, a member asked the CBSA officials, directly, whether Canada has a strong system when set against the American one. Graeme Hamilton, Director General of the Traveller, Commercial and Trade Policy Directorate, answered:
“My reference to a strong system was specifically related to the fact that the ban is absolute. There is no ability to import goods made by forced labour, for other reasons, into Canada.”9
Read that again, and then read the word Canada sent to Washington.
The defence of robust is that the text of the prohibition admits no exception. That is true. It is also the whole of the answer. The framework is robust in the sense that a locked door is robust, in a house where nobody has ever turned the key.
Canada’s ban is absolute in the tariff schedule and almost never in the container. An absolute prohibition that has prohibited once, or twice, in six years is not a robust framework. It is a sentence in a press release.
Saying two things at once, on purpose
I want to be direct about something, because it would be easy to catch me out on it otherwise, and I would rather hand you the knife than let you find it.
On 16 July I file rebuttal comments in Washington arguing that the United States has no lawful basis for this action against Canada. I will argue that the Trade Representative invoked the treaty’s dispute settlement machinery under section 303 and then walked away from it, in a sequence the Trade Act does not permit. I will argue that the Report never identifies a single American export displaced by a single shipment the CBSA failed to stop, and that the burden on United States commerce is therefore asserted rather than shown. I will argue that the determination contradicts itself, finding in one section that Canada imposes a prohibition and in another that it does not.10
I believe all of it. I testified to it under my own name, at my own cost.
And I am telling you now that Canada’s enforcement record is thin, and that I will not defend it.
Those positions are not in tension. They are two halves of one argument, and the distinction between them is the oldest one in law.
What an agency may lawfully find is one question. What a country ought to do is another. A charge can be unproven, and a failing can still be real, and the second does not cure the first.
The United States must prove its case on a reasoned record, and it has not. That is a claim about the burden of proof, and it does not require Canada to be blameless. Canada, quite separately, has an obligation to enforce a law it passed six years ago, and it has not. That is a claim about the work, and it does not require Washington to be right.
There is a sharper version of this, and the numbers above supply it. The U.S. Trade Representative cannot verify his own figure. He says two shipments were denied entry. Canada’s own enforcing agency told Parliament that one of those two was overturned on appeal and could not reconcile its own tally in the same answer. The USTR Report does not mention the reversal. It does not mention the appeal. It does not mention that the number changed four times in eighteen months, because the Report never asked. USTR held consultations with Canada on March 12 and never put the question.11
The Trade Representative built a finding on a number he could not verify, and he could not verify it precisely because of the non-publication he was complaining about. Then he resolved the uncertainty in the direction that supported the tariff.
That is a defect in the American record, and it is fatal to the tariff. It is not a defence of Canada. Both sentences are true and I will not trade one for the other.
There is a further reason the two positions sit together, and it is textual.
Canada’s prohibition is not a favour to Washington. It exists because Article 23.6 of CUSMA obliges each Treaty Party to prohibit the importation of goods produced by forced or compulsory labour, including forced or compulsory child labour, and Canada amended the Customs Tariff in 2020 to discharge that obligation.12 The duty to enforce it is owed under an agreement Canada negotiated, signed and ratified. It was not extracted by a tariff Canada dispute. Ottawa can resist the instrument and still owe the work.
The number is not a metric. It is an absence.
One or two shipments in six years is not a low number. It is a rounding error, indistinguishable from doing nothing.
The reason is structural, not a failure of will. Canada’s prohibition lives in tariff item 9897.00.00 of the Customs Tariff: a line in a schedule, enforced by an officer who must satisfy themselves, on the balance of probabilities, that a good was made with forced labour. Lawton told the committee exactly how it works. The agency looks at the entities it already knows about. If it has nothing on the entity, the goods go through.13 There is no presumption. There is no listing power. There is no withhold-release order. The burden sits on the state, and the evidence sits in a factory eleven thousand kilometres away.
The American system inverts it. The Uyghur Forced Labor Protection Act (UFLPA) presumes goods from a listed region are tainted and places the burden of proof on the importer. That single reversal is the entire distance between 42,807 and two.
None of this is an American discovery. Canadian civil society documented the failure years before the Trade Representative found a use for it. Above Ground, drawing on a legal analysis prepared by Goldblatt Partners, set out in May 2024 the same structural finding I reach here. There are no regulations specific to tariff item 9897.00.00. Classification proceeds shipment by shipment, on the judgement of the officer standing in front of the container. Nothing in the scheme reaches a producer rather than a parcel.14
The Trade Representative did not uncover Canada’s enforcement gap. He read about it.
This is what Ottawa keeps missing. Canada does not have an enforcement gap because Canadians are lax. Canada has an enforcement gap because Canada built a prohibition without an architecture, and a prohibition without an architecture prohibits nothing.
And then, ten days later
Bill C-35, the Ban on Importing Goods Made with Forced Labour Act, was tabled on June 12, ten days after the American determination.15
I told the USTR Section 301 Tariff Committee in Washington that this proves the treaty process works. Five years of tariff threats produced nothing. One proceeding, one round of consultations under an agreement the United States negotiated, Congress ratified, and Canada legislated within a fortnight.
I stand by that. And then I read the bill.
What takes effect the moment it passes
Child labour comes out of the import prohibition. Section 19 does not tinker with tariff item 9897.00.00. It repeals the entire description, the whole phrase covering goods produced wholly or in part by forced labour or child labour as those terms are defined in the Fighting Against Forced Labour and Child Labour in Supply Chains Act. Section 4 of the new Act then re-enacts the forced labour half, and only the forced labour half, tied to the ILO definition in the Forced Labour Convention, 1930.16 Forced child labour remains caught, because forced labour catches it. Child labour as a separate and broader category, which Parliament deliberately added in 2024, does not survive. It is simply gone.
Canada added child labour to the import prohibition in 2024. C-35 takes it back out. The government’s position will be that child labour is caught elsewhere, and that may be so. A prohibition that today reaches goods made by children will, if this bill passes as written, no longer say so.
Nobody has asked a minister about it.
The ordinary customs appeal disappears, going forward and going backward. Subsection 5(5) provides that nothing done under the new Act is subject to any appeal, review or re-determination under the Customs Act. What survives is judicial review under section 18.1 of the Federal Courts Act: a Federal Court application, counsel, and a year. The small importer whose container is wrongly held loses the cheap remedy and keeps the expensive one.17
The transitional provisions go further, and they are the part nobody has read. Section 13 provides that a determination made under the old regime before royal assent, with no decision yet rendered, is not subject to any appeal or re-determination at all. Section 14 provides that a request already filed under subsection 60(1) of the Customs Act, with no decision made by the day of assent, is void. Section 15 closes appeals of pre-assent decisions unless a notice of appeal was already filed.18
Read that again. An importer who has filed, paid for, and is waiting on a statutory request has that request extinguished by operation of a statute passed afterward. Sections 16 and 17 preserve judicial review and protect appeals already filed, which softens the edge without changing the shape.
And now look at what subsection 5(5) does to the record above
Every law firm alert has read subsection 5(5) as a loss for importers. It is that.
It is also this.
The only occasion on which Canada’s forced labour prohibition was ever tested on appeal, it did not hold. The determination was overturned. The CBSA recourse process, working exactly as designed, concluded that the goods had not, on the balance of probabilities, been made with forced labour, and the shipment came in.19
That tells you something specific and uncomfortable. It tells you the determination had not been built on evidence that could survive scrutiny.
Bill C-35 does not answer that by making the determinations stronger.
Canada’s prohibition has been tested on appeal once, and it failed. Bill C-35’s response is not to build determinations that can withstand an appeal. It is to remove the appeal.
There is a second edge to this, and it cuts the other way. Canadian civil society has spent two years asking Ottawa to open the re-determination and advance ruling channels, so that researchers, unions and organizations holding evidence about a producer could ask the CBSA to classify its goods. That was the fifth of six recommendations Above Ground put to Global Affairs Canada in November 2024.20 C-35 does not open that channel. It removes one and hollows out the other.
What waits for Cabinet
Sections 8 and 9 are the only provisions in this bill that would change the number. Section 8 requires an importer of listed goods to produce prescribed information on demand. Section 9 deems the goods prohibited if the importer does not. Together they are the reversed onus. They are the architecture. They are the answer to two.
Section 20 provides that sections 8 and 9 “come into force on a day or days to be fixed by order of the Governor in Council.”21
Sections 8 and 9 are the only provisions in the bill that section 20 defers. Everything else comes into force on royal assent.
The narrowing is automatic. The teeth are discretionary. The child labour deletion and the lost appeals arrive the day the Governor General signs. The reversed onus arrives on a day Cabinet may choose, or may not.
There is a second gate behind the first. Even after the order in council, sections 8 and 9 do nothing at all until the Minister of Foreign Affairs makes the list of suspect goods, and section 6 requires that the list be made by regulation. There is no list today. In the House of Commons on June 15 the government said it would spend the summer consulting on one.22 Two discretionary gates, both closed, and a bill that answers Washington by promising to build the door.
What the bill does not say
There is a third silence, and it runs through the whole design.
C-35 creates a listing power, a reversed onus and a deeming provision. It creates no obligation to tell anyone anything. There is no duty to publish the criteria by which goods reach the list. There is no duty to report how many shipments were examined, how many importers were asked for information, or how many failed to answer. There is no duty to name a producer whose goods have been deemed prohibited, and naming the producer is the single feature that makes the American system bite, because it tells every other importer on earth to leave that factory alone.
And here is the part that should end the argument. The CBSA does not need Bill C-35 to publish any of this. Paragraph 107(4)(g) of the Customs Act already permits an official to disclose customs information that does not directly or indirectly identify any person. That is aggregate enforcement statistics, and the power has been sitting there since 1985.23 Paragraph 107(6)(a) already permits the Minister to name a producer where the public interest clearly outweighs the prejudice to that producer’s competitive position.24 Both powers exist. Neither has ever been used for this purpose.
A regime that has stopped one or two shipments in six years, and cannot say which, is not made accountable by handing it a stronger power and the same silence.
An American commenter on this very docket has already built the argument that follows. The Bull Moose Project told the Section 301 Committee that the European Union’s forced labour regulation, which does not bite until December 2027, amounts to words on paper.25 The identical charge is available against C-35, and someone will make it.
There is an answer, and it is the one I will file. Canada is not the EU. Canada’s prohibition is in force today, and has been since 2020. C-35 is not the prohibition; it is the enforcement architecture built on top of a prohibition that already exists, and the Americans’ own Section 301 Forced Labor Report concedes it when it places Canada among the six economies that impose a ban. 26
That answer is correct. It is also, if the Governor in Council never signs and the Minister never lists, an answer about a law that does nothing.
And do not count on the carve-out
There is a comfortable assumption circulating in Ottawa, and it deserves to be named. The proposed action would exempt goods that qualify for CUSMA preferential treatment, and a good deal of Canadian commentary has treated that exemption as though it were settled law. It is not. It is a proposal. Whether it survives is one of the questions this hearing exists to decide, and there are commenters on the docket asking the Trade Representative to take it out.27
A carve-out that is still in play is not a shield. It is an argument someone else is making on your behalf, and the Government of Canada did not show up in the room to make it.
Ottawa is relying on an exemption it did not appear to defend, in a proceeding it declined to attend.
Sixty-six minutes
The House of Commons trade committee has a study called Enforcing Canada’s Import Ban on Goods Produced Using Forced Labour. It opened that study on June 18. It has held one meeting.
Meeting 44. Eleven o’clock to six minutes past noon. Five witnesses, every one of them a federal official. No importers, no industry, no civil society, no outside counsel. Sixty-six minutes, and then the committee adjourned to the call of the Chair. It has not met on the subject since.28
In those sixty-six minutes, a Conservative MP read the governing treaty obligation aloud. Michael Kram put Article 23.6 of CUSMA on the record, the provision requiring each Party to prohibit the importation of goods produced in whole or in part by forced or compulsory labour, including forced or compulsory child labour. He read the words “including forced or compulsory child labor” into a committee room where five officials sat, six days after the government tabled a bill that removes the child labour category from the import prohibition. Not one of the officials mentioned it. Neither did any member.29
The treaty does not settle it, and I will not pretend otherwise. Article 23.6 requires each Party to prohibit goods produced by forced or compulsory labour, including forced or compulsory child labour. C-35 keeps that. Forced child labour is caught, because forced labour catches it.
What Canada is giving up is the part it gave freely. In 2024 Parliament put child labour into the import prohibition as a category in its own right, wider than the treaty required, and it did so without being asked by anyone. C-35 hands that back. Not a breach. A retreat to the floor, made quietly, in a bill sold as strengthening the ban.
M.P. Michael Kram read the treaty aloud in a room where five federal officials sat, six days after the government tabled the bill that undoes the surplus. Not one of them said so. Neither did he.
Fifteen governments sent officials to Washington to argue about this. Mexico sent its Minister of Economy to argue in person. Canada’s submission to the proceeding was filed at the deputy director level.
Ottawa found a Senior Assistant Deputy Minister and three directors general for a committee room in Ottawa. For the hearing room in Washington where the tariff will actually be decided, it found a signature - and no one to fill a vacant seat. No voice, no objection. Nothing.
And then Parliament rose.
C-35 had first reading on June 12 and nothing since. The parliamentary record shows no second reading activity, no debate, and no committee consideration. Not one clause has been examined. The House returns on September 21, 2026.30
So the answer Canada is holding up to Washington, the proof that Ottawa is serious, is a bill that will not be debated until after the Section 301 action is decided, after the Joint Review is well under way, and after the statutory instruments that will actually be used against Canadian goods have been chosen.
What the answer actually is
United States trade expert Simon Lester asked, publicly and twice, what the Section 301 process even is for a government wanting to explain post-determination improvements. He called it murky. He is right, and I want to say so plainly, because he pressed me on it and the concession is his due.31
The obvious candidate is section 307 (19 U.S.C. § 2417), which empowers the Trade Representative to modify or terminate an action.32 A power is not a process. Section 307 says the Trade Representative may act. It does not say what he must do when a country’s conduct changes, or what he must weigh, or when he must answer. A government knocking on that door is asking for a discretionary act and hoping someone opens it. Lester’s objection holds, and C-35 would arrive there with nothing behind it but goodwill.
The answer is not the provision that grants a power. It is the provision that imposes a duty.
Section 307 says may. Section 303 says shall. Simon Lester asked where the process was. It was never in the power. It was in the verb.
Section 303 (19 U.S.C. § 2413) is the forum in which a government explains itself, and it is not a comment on a docket. Where the practice involves a trade agreement, the Trade Representative “shall promptly request” consultations under that agreement’s dispute settlement procedures.33 USTR did precisely that, on March 12, the day it opened the investigation. Canada accepted. The consultations were held. Canada appears seventh on USTR’s own list of the forty-six economies with which it took part.34
And there is more, which is the spine of what I file on Thursday. Section 304 (19 U.S.C. § 2414(a)(2)) ties the determination to the conclusion of that dispute settlement procedure.35 The investigation opened on 12 March. The determination issued on 2 June. Eighty-two days. No proceeding under CUSMA Chapter 31 was ever commenced, and none was concluded.
The obvious objection is that a treaty partner could stall a Chapter 31 proceeding forever, and that Washington cannot be held hostage to Ottawa’s delay. It is a fair objection, and Congress answered it before anyone thought to raise it. Section 2414(a)(2) is written in the alternative: the determination falls due on the earlier of thirty days after the dispute settlement procedure concludes or eighteen months after the investigation opens. The backstop exists precisely so that no partner can filibuster.
Congress gave the Trade Representative eighteen months. He took eighty-two days. The delay he was entitled to guard against had not begun. And in eighty-two days, he never once asked Canada what its own number was.
The United States chose the treaty road, walked ten paces down it, and reached for a tariff instead.
That door is still open, and only the Government of Canada can walk through it. It is government to government. No witness list, no filing deadline, no docket rule can shut Canada out of it. It is the one thing Ottawa has not tried, and it is the only thing that would work.
What Parliament should do in September
A diagnosis without a prescription is just a complaint, and I have no interest in filing one. The bill is not beyond saving. It sits at first reading. Not a single clause has been examined. The House has an autumn in front of it, and seven amendments would turn C-35 from an answer to Washington into an answer to the problem. None of them requires the United States to agree.
One. Bring sections 8 and 9 into force on royal assent. Strike the deferral in section 20. Sections 8 and 9 are the reversed onus. They are the only provisions in this bill that would change the number, and they are the only provisions the bill holds back. Every narrowing arrives automatically. The teeth wait on an order in council. One line of amendment moves them out of Cabinet’s discretion and into the statute’s command.
Two. Put a statutory deadline on the section 6 list. The reversed onus does nothing at all until the Minister lists the goods, and section 6 leaves that timing at large. Give it a date on the face of the Act. A presumption with no list is a door with no building behind it.
Three. Put child labour back. Section 19 repeals the entire description in tariff item 9897.00.00, and section 4 carries forward the forced labour half and nothing else. Canada added child labour to the import prohibition in 2024. This bill removes it, and no one has been asked to defend that choice because no one has noticed it. Restore it in terms of the new Act.
Four. Leave the filed appeals alone. Sections 13 to 15 extinguish requests that importers have already filed and already paid for, by operation of a statute passed afterward. Whatever the case for closing the customs appeal route going forward, taking it away retroactively is not enforcement. It is tidying, at someone else’s expense, and it will be the first thing a court is asked about.
Five. Resource the officers who have to use it. A reversed onus is only as strong as the agency applying it. Lawton told the committee the biggest gap is an information deficit about supply chains and about working conditions inside each entity in them.36 Section 8 gives the CBSA the power to demand information. It does not give the analysts the supply chain intelligence or the trained eyes to know whom to demand it from. That is decided in the estimates, not in the statute.
Six. Publish, and require it in the statute. The CBSA has had the power to publish aggregate enforcement statistics since 1985 and has not used it. A power an agency declines to exercise is not a power. Put a duty in C-35: quarterly publication of shipments examined, importers required to produce information, and goods deemed prohibited. Require the Minister to name the producer whenever goods are deemed prohibited under section 9. Naming the factory is not a courtesy to campaigners. It is the mechanism, and it is a large part of what separates 42,807 from two. Six years of silence is the answer to whether the power alone is enough.37
Seven. Let the people with the evidence bring it, and this one does not even need Parliament. Section 43.1 of the Customs Act already requires the CBSA to give an advance ruling on the tariff classification of goods, on application by any member of a prescribed class. The class is prescribed by regulation. Cabinet could add researchers, trade unions and non-governmental organizations to it tomorrow. 38 Instead, counsel told the committee in December that the CBSA, as a matter of policy, will not issue advance rulings for forced labour classification determinations at all.39 The evidence about a factory in Xinjiang or a fishing vessel in the South Atlantic is not sitting in the CBSA. It is sitting with the people who went and looked. Open the door to them and preserve a re-determination route by amending subsection 5(5).
Every one of these amendments is available in September. Not one of them requires Washington to agree. All of them require Parliament to sit.
None of this is a concession to the United States. Canada would want every one of these amendments if the Section 301 action vanished tomorrow, because each of them goes to the only question that has ever mattered here: whether the prohibition Canada passed in 2020 means anything at the border. That is the test. It was never whether the Americans are satisfied.
The uncomfortable symmetry
I will end where an honest person has to.
Kim Glas, who runs the American textile industry’s trade association, testified at these very hearings that “by every measure, UFLPA enforcement has been anemic.” She said it twice, and she was talking about the United States.40 Her colleagues went further on the remedy itself. The Footwear Distributors told the Committee it was curious that Washington would tax American companies in order to change the behaviour of an economy somewhere else. The Consumer Technology Association said flatly that tariffs do not eradicate forced labour. A former USTR official put the cost to Americans at roughly 100 billion dollars a year and told the Committee the report does not justify tariffs at any scale. 41
That is American industry, in a United States government proceeding, telling Washington that the instrument will not work.
So the United States proposes to tax Canadian goods because Canada does not enforce its ban, at a hearing where American industry testified that America is not enforcing its own, and that the tax would not fix it if it were.
That is a devastating argument against the tariff. It is not an argument for Canadian complacency, and I will not have it used as one.
Two seized shipments in six years is not a defensible record. One, which is what the official who runs the program appears to have told Parliament, is not a record at all. It does not become defensible because the Americans lack a lawful basis to punish us for it. It will not become defensible through a bill that deletes child labour on royal assent, voids appeals importers have already filed, creates a listing power with no duty to disclose how it is used, answers the one failed appeal by abolishing appeals, and leaves its only enforcement provision sitting behind an order in council that Cabinet may never sign, in a Parliament that has gone home until the autumn.
Canada should fix this because Canada is a country that legislated against forced labour and then declined to do the work. Not because Washington is angry.
Because two is not a number. It is an admission. And it may not even be two.
Code before clause. The order is the whole argument.
Prof. Barry Appleton is Interim Director of the Balsillie Legal Advisory Centre at the Balsillie School of International Affairs, Co-Director and Distinguished Senior Fellow at the Center for International Law at New York Law School, and Managing Partner of Appleton and Associates International Lawyers LP. He testified before the Office of the United States Trade Representative on 7 July 2026, in his personal capacity and at his own cost. His rebuttal comments in Docket USTR-2026-0265 will be filed on 16 July 2026 in his personal capacity and at his own cost.
Code before clause.
© 2026 Barry Appleton. All rights reserved. Published in Appleton’s Clause & Effect. The author asserts his moral rights. This post is public and may be shared in full with attribution and a link to the original. It may not be reproduced, republished, excerpted at length, adapted, or used to train any machine learning or artificial intelligence system without the express prior written permission of the author.
Notes
Government of Canada, submission in Docket USTR-2026-0265, filed July 6, 2026, USTR comment portal, comments.ustr.gov. The submission runs to two pages.
U.S. Customs and Border Protection, Uyghur Forced Labor Prevention Act Statistics. CBP’s dashboard counts shipments “stopped,” being those halted for further review, and states that not all stopped shipments resulted in a physical detention or examination of cargo. The comparison in the text is therefore conservative.
House of Commons, Standing Committee on International Trade, Evidence, 45th Parl., 1st Sess., Meeting No. 16 (November 27, 2025), testimony of Alexander Lawton, Executive Director, Commercial Programs Directorate, Canada Border Services Agency, responding to Mr. Savard-Tremblay: “As of November 2025, so as of this month, there have been 48 detentions. Two have resulted in fined determinations of forced labour. One of those determinations was later, on appeal, overturned, essentially. In addition, there were 33 shipments that were released following information provided by the importers. Of the other eight shipments—and hopefully my numbers are correct—seven were re-exported... The remainder were abandoned and essentially destroyed.” Earlier in the same meeting, responding to Mr. Fonseca, Mr. Lawton gave the sectors: “garments, textiles, automotive parts, solar panels and, more recently, gloves and drones.”
Ibid. Mr. Savard-Tremblay: “If I understand correctly, there were 48 seizures... Of those seizures, eight shipments were re-exported and two were actually seized, one of which was released. Did I get that right?” Mr. Lawton: “That’s correct. I’m sorry. I may have misspoken. Thirty-seven were released; two were prohibited; seven were re-exported, and one was abandoned.” The four corrected components total 47. The total stated moments earlier was 48. The discrepancy is unexplained on the record.
Supra note 3. Mr. Savard-Tremblay, reading from a written answer tabled in response to his own question on the Order Paper: “The figures I’m going to give you are from September, so not that long ago. We found out that Canadian border authorities had seized 34 shipments suspected of containing products made by forced labour or child labour. Thirty-three of those shipments were released, all global regions and provinces combined. Ultimately, only one shipment was actually seized without being released.”
Globe and Mail (March 13, 2026), reporting a statement of the Canada Border Services Agency that, of the shipments it has detained since 2021 on forced labour concerns, two were ultimately blocked from entering Canada after the agency determined they were produced with forced labour: a shipment of textile products in 2024 and a shipment of frozen seafood in 2025, both from China. The statement records no appeal and no reversal.
Office of the United States Trade Representative, Report on the Section 301 Investigation into Forced Labor Goods (June 2, 2026), recording approximately 50 shipments detained by Canada on suspicion of forced labour since 2020, of which two were denied entry. The Report does not refer to the appeal, to the reversal, or to any of the other figures set out in notes 3 to 6 above. The four public accounts of Canada’s enforcement record are not reconcilable on the face of the record.
Above Ground has written to the Canada Border Services Agency seeking clarification of the discrepancies in the published enforcement figures and has received no response. Correspondence with the author, July 13, 2026, cited with permission. Above Ground is a Canadian human rights and corporate accountability project that has followed the forced labour import prohibition since before it came into force.
Supra note 3, testimony of Graeme Hamilton, Director General, Traveller, Commercial and Trade Policy Directorate, Canada Border Services Agency: “My reference to a strong system was specifically related to the fact that the ban is absolute. There is no ability to import goods made by forced labour, for other reasons, into Canada.” Earlier in the same answer: “It’s an absolute ban within the customs tariff.”
The arguments summarized here are developed in the author’s written comments in Docket USTR-2026-0265: Ratification Buys Nothing: Written Comments and Testimony on the Section 301 Forced Labor Determination (filed July 2, 2026), and No Duty Should Do the Same Work Twice (supplemental brief, filed July 6, 2026). The rebuttal comments will be filed on July 16, 2026.
On the consultations of March 12, 2026, see infra note 34. Neither the Report nor the Notice records any request by USTR to Canada for verification of the enforcement figures.
Agreement between Canada, the United States of America and the United Mexican States, art. 23.6 (Forced or Compulsory Labour), obliging each Party to prohibit the importation of goods produced in whole or in part by forced or compulsory labour, including forced or compulsory child labour. Implemented in Canada by amendment to the Customs Tariff, S.C. 1997, c. 36, tariff item No. 9897.00.00, in force July 1, 2020.
Supra note 3, testimony of Mr. Lawton: “The Canadian forced labour import prohibition is based on the tariff classification. It’s not based on a given region or a given industry. It’s based on the individual entities. When those goods arrive in Canada, we’ll look at the entities that we know of to see if there are any indications that forced labour is present within those specific entities. If there are none, generally the goods are allowed release.” On the standard, Mr. Hamilton, same meeting: “The customs tariff uses the standard of balance of probabilities.”
Above Ground, Enforcing Canada’s Forced Labour Import Prohibition: Key Challenges and Recommended Reforms (May 16, 2024), Part 2, drawing on a legal analysis prepared by Goldblatt Partners LLP. See also Above Ground, Creating Consequences: Canada’s Moment to Act on Slavery in Global Supply Chains (June 2021).
Bill C-35, An Act respecting the prohibition of the importation of goods produced by forced labour (Ban on Importing Goods Made with Forced Labour Act), 1st Sess., 45th Parl., first reading June 12, 2026. The American determination issued on June 2, 2026.
Bill C-35, Supra note 15, s. 19 (repealing the description in tariff item No. 9897.00.00 of the Customs Tariff); s. 4 (prohibition); s. 2 (definition of forced labour by reference to Article 2 of the ILO Forced Labour Convention, 1930 (No. 29)). The child labour category, added to the tariff item by the Fighting Against Forced Labour and Child Labour in Supply Chains Act with effect from 1 January 2024, is not carried forward in the new Act.
Bill C-35, Supra note 15, s. 5(5) (no appeal, review or re-determination under the Customs Act); s. 5(3) (detention for up to 90 days). Judicial review is preserved under the Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1.
Bill C-35, Supra note 15, ss. 12 to 17 (transitional provisions), and in particular s. 14 (voiding a request already made under s. 60(1) of the Customs Act where no decision has been made by the day of assent); s. 13; s. 15. Sections 16 and 17 preserve judicial review and appeals already filed.
Supra note 3 (Lawton: one of the two determinations “was later, on appeal, overturned”). On the recourse mechanism that produced that result, see House of Commons, Standing Committee on International Trade, Evidence, 44th Parl., 1st Sess., Meeting No. 92, testimony of Doug Band, Director General, Trade and Anti-dumping Programs Directorate, Canada Border Services Agency: the goods were released “after CBSA recourse worked with the importer to determine that in fact the goods had not, on the balance of probabilities, been made with forced labour.”
Above Ground, Submission for Global Affairs Canada’s Public Consultations on Measures to Strengthen Canada’s Import Ban (November 22, 2024), Recommendation 5 (permit civil society applicants to request advance rulings and re-determinations).
Bill C-35, Supra note 15, s. 20 (coming into force); s. 8 (prescribed information); s. 9 (goods deemed prohibited). Sections 8 and 9 are the only provisions deferred by s. 20.
Bill C-35, Supra note 15, s. 6 (list of goods established by regulation). On the status of the bill and the government’s statement of June 15, 2026 that it would consult over the summer on the list, see openparliament.ca/bills/45-1/C-35.
Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), para. 107(4)(g): an official may provide, allow to be provided, or provide access to customs information that “is reasonably regarded by the official to be information that does not directly or indirectly identify any person.” Aggregate enforcement statistics fall within the paragraph. No Ministerial decision is required.
Ibid., para. 107(6)(a): the Minister may provide customs information to any person where the information may not otherwise be provided under the section and, in the Minister’s opinion, “the public interest in providing the information clearly outweighs any invasion of privacy, or any material financial loss or prejudice to the competitive position of the person to whom the information relates.” Where personal information is disclosed, s. 107(7) requires notification of the Privacy Commissioner.
The Bull Moose Project, Comment in Support of USTR’s Section 301 Forced Labor Goods Findings, Docket USTR-2026-0265. Regulation (EU) 2024/3015 applies in full from 14 December 2027.
Supra note 7. The Report places Canada among the six investigated economies that impose an import prohibition, at p. 21: “USTR does not find that Canada has failed to impose a forced labor import prohibition.”
USTR, Notice of Determinations and Request for Comments Concerning Actions in Section 301 Investigations, 91 Fed. Reg. 34,272 (5 June 2026) (proposed exemption for goods qualifying for USMCA preferential treatment). The exemption is a proposal on which comment was invited. Commenters in the docket have asked that it be removed.
House of Commons, Standing Committee on International Trade, Minutes of Proceedings and Evidence, 45th Parl., 1st Sess., Meeting No. 44 (18 June 2026), 11:00 a.m. to 12:06 p.m.; five witnesses, all federal officials; adjourned to the call of the Chair. The committee has not met on the subject since.
Ibid., Michael Kram, M.P., quoting CUSMA art. 23.6, including the words “including forced or compulsory child labor.” Bill C-35 had been tabled six days earlier.
Supra note 15. The parliamentary record shows no second reading, no debate and no committee consideration of Bill C-35 since first reading. The House of Commons is scheduled to return on 21 September 2026.
Simon Lester, Governments Make Their Case Against Section 301 Forced Labor Tariffs, International Economic Law and Policy Blog, July 2026.
Trade Act of 1974, s. 307, 19 U.S.C. § 2417 (modification and termination of actions). The section is permissive: the Trade Representative may modify or terminate.
Trade Act of 1974, s. 303, 19 U.S.C. § 2413(a)(2): where the practice involves a trade agreement, the Trade Representative “shall promptly request” consultations under the formal dispute settlement procedures of that agreement.
Supra note 27, § I (list of the forty-six economies with which consultations were requested and held; Canada appears seventh). The consultations were requested on 12 March 2026, the day the investigation was initiated.
Trade Act of 1974, s. 304, 19 U.S.C. § 2414(a)(2): the determination falls due on the earlier of thirty days after the dispute settlement procedure concludes, or eighteen months after the date on which the investigation is initiated. The investigation was initiated on 12 March 2026 and the determination issued on 2 June 2026, being 82 days.
Supra note 3, testimony of Mr. Lawton: “The biggest gap we’ve found is essentially an information deficit in terms of supply chains, but also in terms of the working conditions within each entity within a supply chain.
Supra notes 23 and 24. On the recommendation for periodic public reporting and for disclosure of producers’ names, see Above Ground, supra note 20, Recommendations 3 and 4. Compare the United States practice of publishing Withhold Release Orders and Findings by producer, and the UFLPA Entity List.
Customs Act, s. 43.1(1): a designated officer “shall, before goods are imported, on application by any member of a prescribed class... give an advance ruling” with respect to, among other things, the tariff classification of the goods. The prescribed class is set by the Tariff Classification Advance Rulings Regulations, SOR/2005-256, made by the Governor in Council. Amending the class therefore requires no Act of Parliament.
House of Commons, Standing Committee on International Trade, Evidence, 45th Parl., 1st Sess., Meeting No. 18 (4 December 2025), testimony of counsel appearing in the forced labour study: “Options for importers to formally mitigate their risk of enforcement action before an import occurs are limited since, as a matter of policy, the CBSA will not issue advance rulings for forced labour and child labour classification determinations.” The statutory power exists. The agency declines to exercise it.
Transcript of the Section 301 hearings, Day 3 (9 July 2026), testimony of Kim Glas, National Council of Textile Organizations.
Ibid., testimony of Matt Priest (Footwear Distributors and Retailers of America) and Ed Brzytwa (Consumer Technology Association); Transcript, Day 1 (7 July 2026), testimony of Edward Gresser (Progressive Policy Institute).