Border agency sued after detaining ‘forced labour’ cargo shipments

VANCOUVER — Canada’s border agency says it has detained about 50 shipments of cargo over suspicions they were products of forced labour under rules introduced in 2020 — but only one was eventually determined to be in breach of the ban.

The Canada Border Services Agency provided the figures after being asked about a lawsuit against it by a Victoria solar firm, which says a shipment of solar panels worth more than $5 million was wrongfully detained over false suspicions they were made with forced labour in China.

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Charge Solar Renewables Inc. says in a Federal Court lawsuit that the months it took to convince the agency to release the panels irreparably damaged its market position.

The CBSA declined an interview request, but said in an emailed statement that the “import prohibition respecting forced labour came into force in July 2020,” and border agents classify goods on a “case-by-case basis.”

It said that since 2021, “approximately 50 shipments have been intercepted and assessed.”

“After an extensive review of detailed supply chain information provided by importers, one shipment was intercepted and determined to be produced by means of forced labour and prohibited entry into the Canadian marketplace. The remaining shipments were permitted entry,” it said.

One other shipment was abandoned at the Canadian border by the importer.

It said it was prohibited from naming any of the companies involved in the detentions, and it would not comment on the specifics of Charge Solar’s lawsuit, filed this month in Vancouver.

The lawsuit says Charge Solar had a supply contract with Chinese firm LONGi Green Energy Technology, and the panels were shipped to Vancouver, Toronto and Calgary between February and April 2024.

It says 47 containers were detained by border agents who told the firm it needed to show the panels worth more than US$3.8 million weren’t prohibited as goods made with prison or forced labour.

The company says it provided “thousands of pages” of information to the agency about the manufacture of the panels, including affidavits from those along the supply chain attesting they weren’t made with forced labour.

The company, which did not respond to a request for comment, says in the lawsuit that it “strongly opposed the detention of the goods.”

The lawsuit says the holdup resulted in customers cancelling orders, while the agency “took an unprecedented step requiring Charge Solar to explain solar module supply chains.”

It says similar or identical goods, some from the same supplier, that were imported by competitors weren’t subject to investigations or detentions, and as a result Charge Solar’s “dominant market share … was significantly and irreparably eroded.”

The Charge Solar shipments were eventually released in June and July.

Charge Solar says the deal with LONGi involved products “originating in Vietnam.”

However, forced labour researchers say LONGi has a “very high” risk of exposure to forced labour in its products due to sourcing from China’s Xinjiang Uyghur Autonomous Region.

Researchers at the Helena Kennedy Centre for International Justice at Sheffield Hallam University in Britain said LONGi was “the largest global supplier of solar wafers” to companies that produce solar cells.

The researchers concluded the firm’s sourcing from Xinjiang in China’s west meant that its risk of exposure to forced labour in their products was “transferred to all users” of its solar panels.

In March 2023, Global Affairs Canada issued an advisory to Canadian firms doing business in Xinjiang “to bring attention to human rights violations in China affecting Uyghurs and other ethnic minorities from the Xinjiang Uyghur Autonomous Region.”

The Uyghurs are a Muslim ethnic minority who have been the subject of “serious human rights violations” by China, according to a 2022 report by the United Nations High Commissioner for Human Rights.

Global Affairs issued the advisory “to help Canadian firms and stakeholders understand the legal and reputational risks posed to companies whose supply chains engage with entities possibly implicated in forced labour.”

William Pellerin, an international trade lawyer in Ottawa, said Canadian enforcement action against goods suspected of involving forced labour has paled in comparison with efforts in the United States.

The U.S. Uyghur Forced Labour Protection Act made it easier to take action on goods from Xinjiang believed to be made with forced labour, he said.

Much of the world’s polysilicon used in the production of solar panels comes from Xinjiang, Pellerin said.

“That region really is very important to global supply chains across multiple sectors,” he said.

He said the United States had detained “billions” worth of goods believed to involve forced labour, including “very large volumes of Chinese solar products.”

“I think it behooves any party that is bringing in solar material from China to be extremely diligent in its supply chain and to ask all of the questions to make sure it has a full understanding going as far back as possible upstream into the input materials to make sure that your supply chain is as clean as possible,” he said.

Pellerin said he couldn’t comment on the specifics of Charge Solar’s case, but any action against a government faces a “very high bar.”

He said border guards and law enforcers had a “a vast amount of discretion” carrying out their duties.

LONGi did not respond to an emailed request for comment on the detention.

This report by The Canadian Press was first published Nov. 21, 2024.

Darryl Greer, The Canadian Press